Judge Mark W. Somers and the Michigan Medical Marijuana Act: Reckless Judicial Activism

Hon. Mark Somers, Chief Judge 19th District Court Dearborn MichiganJudge Mark W. Somers of the 19th District Court in Dearborn, Michigan, ruled on March 7, 2011, that the Michigan Medical Marihuana Act is unconstitutional because of federal preemption of state law. As a result, he writes, the MMMA is “void in its entirety by operation of the Supremacy Clause of the United States Constitution.” This sweeping decision is unpersuasive, poorly reasoned, and it exhibits thinly-veiled reckless judicial activism by a conservative judge who clearly opposes medical marijuana.


On November 4, 2008, 63% of Michigan voters approved the MMMA. Only 37% of voters opposed the new law. Medical marijuana opponents immediately began a clever attempt to undermine the statute, claiming that the Act is confusing and poorly drafted. A core group of vocal anti-marijuana advocates have proven ready and willing to actively oppose the law through legal chicanery. These groups include local municipal leaders, prosecutors, and some judges who are palpably frustrated that they could not impose their will at the polls.

Judge Somers has been a respected member of the bench since he was elected in 2002. Four years after his election, he was named as the chief judge by the Michigan Supreme Court. He received renewed voter approval by winning reelection in a hotly contested race on the same day that Michigan voters passed the MMMA. His rulings from the bench tend to be conservative. He usually is careful in his deliberations, and he is respectful to people who appear in his courtroom.

Against this backdrop, however, Judge Somers has not been immune to criticism. In a lawsuit filed by a former court employee, the 6th Circuit Court of Appeals recently reported references to several complaints levied against the judge regarding his religious views:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage . . . a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during . . . Ramadan . . . [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church. [Emphasis added.]

Pucci v Nineteenth District Court, 628 F.3d 752, 756-757 (Dec. 16, 2010).

Given that Judge Somers allegedly views marijuana as “the devil’s weed or Satan’s surge” [sic, recte scourge], it comes as little surprise that the judge holds a dim view of the MMMA.


In the case of People of the City of Dearborn vs. Robert Michael Brandon [Click for link to the opinion], the defendant was charged with possession of marijuana. Brandon filed a motion to dismiss the case, claiming that he was entitled to use marijuana as a medical necessity even though he did not have a medical marijuana card at the time of his arrest. The law allows a person to raise a medical necessity defense at trial, but the accused must prove these facts to a jury. Without the protection granted by the medical marijuana card, the jury is free to reject a medical necessity defense and convict the accused.

Brandon did not visit a doctor for nearly four months after he was arrested, and his original trial date was scheduled two months before he bothered to visit a doctor employed as a subcontractor by a “medical marijuana certification center” called “Green Trees of Detroit.” Brandon’s doctor testified and admitted that she never examined him and never performed any tests. During their single meeting that lasted only 20 to 40 minutes, Brandon provided the doctor with no medical records and explained that he had never received treatment for his “severe, chronic pain.” Brandon had not seen a doctor in six to eight years before his visit to the certification center. Nonetheless, Brandon received a medical certificate from the Green Trees’ licensed physician reflecting that he suffered from severe, chronic pain and would benefit from the medical use of marijuana.

Proponents of the MMMA should not be discouraged by these facts. The law does not tolerate mischief. The statute plainly states that the physician must make a “professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.” [Emphasis added.]

Prevailing Law

In People v Redden, ___ Mich App ___ (Sept. 14, 2010), the Michigan Court of Appeals held that, in the absence of a valid medical marijuana card, a person accused of violating Michigan’s marijuana laws must prove an asserted medical necessity defense at trial. The Court held that it is inappropriate for a trial court to summarily dismiss a case at a motion hearing if probable cause exists to believe that the defendant may have violated the law.

Redden is directly on point in the Brandon case, and it is controlling authority that Judge Somers was bound to follow by the doctrine of stare decisis. Given the facts and prevailing law, Judge Somers should have denied the motion and set the matter for trial.

Even if Brandon actually suffers from chronic pain, a jury would undoubtedly reject his medical necessity defense. The defense in this case appears manufactured after the fact, irrespective of Brandon’s medical condition, and it seems he would fail to prove that he had a “bona fide” relationship with the doctor. Judge Somers noted this in a footnote, but the judge refused to rule on these narrow grounds. In fact, the prosecutor raised this argument, and Judge Somers explicitly held that “the court declines to rule on the remaining issues presented by the parties.”

Lack of Judicial Restraint

Statutes are presumed to be constitutional. A judge cannot flippantly declare a statute to be unconstitutional. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). But for the doctrine of judicial restraint, judges would be able to dictate the law without due regard toward our other branches of government, “placing us under the despotism of an oligarchy” in the words of Thomas Jefferson.

By ruling that the MMMA was unconstitutional, Judge Somers intentionally ignored the doctrine of judicial restraint. In 1936, the doctrine of judicial restraint was thoroughly explained by US Supreme Court Justice Louis Brandeis, one of the most famous and influential figures ever to serve on the high court. As Justice Brandeis explained in part, “The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Ashwander v TVA, 297 U.S. 288 (1936) (Brandeis, J., concurring).

Faced with denying the defendant’s motion to dismiss and setting the matter for trial or exercising the awesome responsibility of judicial review established in the landmark case of Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), Judge Somers opted to violate the doctrine of judicial restraint, wiping out the votes of 3,006,820 citizens through judicial fiat.

To read more on this subject, please take a look at:  “Judge Mark Somers and the Michigan Medical Marihuana Act: Federal Preemption Analysis