Public vs. Private Places: Medical and Recreational Marijuana

by: Matt Newburg

04/29/2016 07:50 AM EST

There is no question that Michigan's Medical Marihuana Act has been litigated frequently in the Michigan Court of Appeals and Supreme Court.  The success and failure of that litigation has usually turned on the meaning of a particular phrase or word contained within the MMA.  As the MMA has filtered through the court system, Michigan municipalities have adopted ordinances that, in part, decriminalize the recreational possession and use of marijuana--these ordinances are separate and apart from the Michigan Medical Marihuana Act.  The City of Lansing is just one of those municipalities that has decriminalized the possession, use and transfer of marijuana on private property within the city.  However, must like the MMA failed to define what constitutes a public place, so to has Lansing's ordinance.

The Michigan Court of Appeals, in People Carlton  has defined the meaning of a "public place" and that definition will not just apply to the MMA but any statute or ordinance that uses the term in conjunction with a permitted activity.  The Carlton court first look to the dictionary for guidance then to other previously issued cases in the state of Michigan.    There the court said the Oxford English Dictionary defines the adjective “public” to mean “open to, may be used by, or may or must be shared by, all members of the community; not restricted to the private use of any person or persons; generally accessible”.

Based on that definition, the court found the following places to be "public places":

  • As Michigan courts have recognized, in common usage, when persons refer to a public place, the reference typically applies to a location on real property or a building and as applied to an enclosure, room, or building, a public place is one where, by general invitation, members of the public attend for reasons of business, entertainment, instruction, or the like, and are welcome as long as they conform to what is customarily done there;  
  • The front porch of a private dwelling that was frequented by neighbor children was a public place;
  • Privately owned vacant lot is not a public place within the meaning of an ordinance referring to streets, alleys, or public places;
  • Places such as the Knights of Columbus Hall is a public place;

Significantly to Mr. Carlton, in denying his Section 4 defense under the MMA, the Court of Appeals found that his car, while sitting in a public parking lot, was a public place.  The bigger picture here is significant.  While the transfer and use of marijuana is legal in Lansing, it appears, based on Carlton, that if the use or transfer occurs on a porch attached to the house, and others can frequent the porch, the use is occurring on public property and the protections contained in the ordinance will no longer apply.