COA holds that signing MMMA physician certification forms without examining the patient is not performing a “legal act in an illegal manner”

In People v. Butler-Jackson, No. 315591, the Michigan Court of Appeals reversed a physician’s conviction for conspiracy to commit a legal act in an illegal manner, MCL 750.157a, because signing a physician certification form for a medical marijuana registry identification card without seeing patients is not prohibited by the MMMA, MCL.333.26423 et seq. The defendant, a physician, signed blank certification forms and given them to another person, who met with people seeking a medical marijuana registry identification card, filled in the form, and gave it to them for $250. The defendant’s conviction for falsifying medical records in violation of MCL 750.492(1)(a) was affirmed.

The text of the MMMA provides that “[a] physician shall not be subject to arrest, prosecution, or penalty in any manner . . . solely for providing written certifications in the course of a bona-fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient’s medical history . . .” The trial court reasoned that since the defendant neither had bona-fide physician patient relationships with the recipients of the certifications nor assessed their medical histories, the signing of the certifications was a legal act committed in an unlawful manner. The Court of Appeals, however, held that the MMMA does not provide for a penalty for signing the certifications in the way the defendant did, but only provides that a physician is not protected from prosecution. Since the MMMA does not criminalize the defendant’s actions, they cannot be the “unlawful act” on which to base a conspiracy conviction.

Judge Riordan concurred in the opinion, but wrote separately to note that the defendant and her co-conspirator may have conspired to commit illegal acts under the conspiracy statute because they were both convicted of falsifying medical records. Judge Talbot concurred in part and dissented in part, agreeing with the majority that the defendant was not immune from prosecution, but disagreeing on whether the facts supported a conviction for conspiracy to commit a legal act in an illegal manner. The dissent reasoned that physicians are not immune from arrest or prosecution if they do not comply with the MMMA, so the physician’s actions are illegal.