Attorney General Bill Schuette should push for medical marijuana patients' privacy in federal investigation, attorney says
January 12, 2011
John Agar, Grand Rapids PressThe attorney for medical-marijuana advocates said state Attorney General Bill Schuette, a critic of the state's medical-marijuana law, should fight a federal request for patients' confidential records.
The federal government filed a court request to enforce its subpoena for information.
In a court filing this week, Schuette said the state Department of Community Health, which compiles a registry of medical-marijuana users and providers, would turn over information if ordered to do so by a judge.
His stance prompted Traverse City attorney Jesse Williams to seek legal standing in the case for his clients. He represents Michigan Association of Compassion Clubs and 42 unnamed clients who, he said, are “subject of the DEA's subpoenas.”
He said Schuette should fight to prevent the U.S. Drug Enforcement Administration from obtaining records, which, he said, would be a violation of patient-physician confidentiality guaranteed under the medical-marijuana law.
“The AG has a clear and unambiguous conflict of interest and applicants argue that he should immediately recuse himself from representing (Department of Community Health) in this matter,” Williams said in a court documents.
The DEA subpoenaed the records of seven suspects in June, but the state Department of Community Health refused.
Federal prosecutors then asked a judge to enforce the subpoena. Schuette's office filed a brief saying the state would comply: “Pursuant to the Supremacy Clause of the U.S. Constitution, (Department of Community Health) understands it must comply with a valid court order to provide the requested information … .”
U.S. Magistrate Judge Hugh Brenneman Jr. was to hear the request on Wednesday, but Williams' last-minute request to intervene pushed the hearing to Feb. 1.
The DEA says it is seeking records of seven people in the Lansing area as part of a months-long investigation.
In a 30-page filing, Williams said the government is seeking confidential records of up to 42 people who have been recommended by doctors to use marijuana for medical reasons.
“Applicants and medical marihuana patients throughout Michigan have a heightened expectation of privacy in such records, as they concern especially sensitive medical consultations; physicians have a recognized constitutional right to create such records without fear of federal punishment or investigation,” Williams wrote.
Williams, who contends the DEA is on a “fishing expedition,” said neither party in the case is representing those on the registry.
“It is indisputable that the AG is not adequately representing applicants' interest.”
Schuette's spokesman, John Sellek, said Schuette has no intention of recusing himself. He said the attorney general's office, as counsel to state departments, can offer advice and recommendations to clients but ultimately follows clients' wishes.
He said Schuette's opinion on the medical-marijuana law didn't factor into his office's response to the DEA request for the information.
“There's no conflict at all,” Sellek said. “You have to remember, the attorney general doesn't make the decision.”
Kelly Neibel, community health spokeswoman, said her agency refuses requests from police for information on marijuana patients without the patient's consent. Her agency did not respond to the DEA subpoena issued in June.
“It's well documented, the many questionable issues raised by the law, the gray areas, if you will. One thing that's clear is our responsibility at this department to ensure confidentiality for the people in the program,” Neibel said.
Medical-marijuana proponents across the country are watching this and other cases, said Kris Hermes, spokesman for California-based Americans for Safe Access.
“It would set a pretty significant precedent against patient-privacy rights,” he said. “It's not just a problem in Michigan, it's all over the country.”
Hermes and others were hopeful based on a 2007 ruling by a U.S. District Court judge in Washington who quashed a subpoena for medical-marijuana records sought in Oregon. The judge said federal law could “trump” state sovereignty, but found that keeping the records confidential was “integral to the success of the program.”