Court’s Authority to Restrict Probationers’ State-legal Medical Marijuana Use

Gass v. 52nd Judicial Dist., 118 MM 2019 (King’s Bench)

Exercising King’s Bench jurisdiction, the Supreme Court will consider whether the 52nd Judicial District’s policy prohibiting individuals from using state-legal medical marijuana if they are on probation or otherwise under court supervision is illegal under Pennsylvania’s Medical Marijuana Act.

Pennsylvania’s Medical Marijuana Act (MMA), signed into law in April 2016, legalizes the possession, sale, and consumption of medical marijuana by patients suffering from serious medical conditions as certified by a physician. The MMA provides that certified patients “shall not be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege . . . solely for lawful use of medical marijuana.” 35 P.S. § 10231.2103(a). The 52nd Judicial District’s Medical Marijuana Policy, No. 5.1-2019 & 7.4-2019 (Policy), adopted on September 1 and effective October 1, 2019, specifies that all individuals subject to court supervision who use medical marijuana have 30 days to discontinue use. The Policy in effect prohibits those on probation in Lebanon County from using medical marijuana, even if they are certified patients under the MMA. “Although the Policy does not specify what will happen to individuals who continue to use medical marijuana, typical consequences for violations of terms of supervision include arrest, detention, and revocation of probation.” Petition for Review at ¶ 2.

On September 16, 2019, shortly after the 52nd Judicial District adopted its Policy, counsel for the three named petitioners, individuals certified to use medical marijuana for treatment of serious medical conditions as authorized by the MMA who are currently under court supervision by the 52nd Judicial District, sent a letter to the President Judge of the Court of Common Pleas of Lebanon County, describing their concerns with the Policy and asking for its rescission. The President Judge denied the request. On October 8, 2019, Petitioners, represented by the ACLU, filed a class action petition for review addressed to the Commonwealth Court’s original jurisdiction challenging the Policy as illegal under the MMA. Petitioners argue that the MMA’s protection from “arrest, prosecution or penalty in any manner, or deni[al of] any right or privilege” solely based on an individual’s lawful medical marijuana use, § 10231.2103(a), “prohibits all state, county, and local actors—which includes the 52nd Judicial District and its probation department—from punishing individuals for lawfully using medical marijuana in accordance with the MMA.” Petition for Review at ¶ 2.  Petitioners, who also sought preliminary injunctive relief, explained that “[m]ore than sixty people with serious medical issues in Lebanon County must now decide whether to discontinue their lawful use of a medical treatment that safely and effectively alleviates their serious medical conditions, or risk revocation of their probation and possible incarceration” as a result of the Policy. Id. Respondent 52nd Judicial District filed an Answer to Petitioners’ Application for Special Relief, which included a revised version of the Policy, modified to provide:

Any person on supervision who believes they are aggrieved by this policy may petition the Court for a full and fair hearing to determine whether they should be excused from its application to them. At that hearing, the Petitioner will bear the burden of establishing to the Court the medical necessity of their ongoing use of medical marijuana.

Commonwealth Court entered an order transferring the action to the Supreme Court based on a lack of jurisdiction to order the relief requested. On October 30, 2019, the Supreme Court entered an order finding that while Commonwealth Court did “not adequately explain how this action falls outside of that court’s original jurisdiction,” the Supreme Court elected to exercise King’s Bench jurisdiction over the matter, finding “that this case implicates substantial legal questions concerning matters of public importance, particularly in light of the allegation that other judicial districts have adopted or are considering adopting similar limitations on the use of medical marijuana.” October 30th Order at 3. The Supreme Court also ordered a stay of “any enforcement or implementation of the Policy” pending further order of the Court. Id.

In their brief to the Supreme Court, Petitioners argued that the Policy “is not a valid probation condition because prohibiting individuals with serious medical conditions from using medical marijuana violates the MMA and is not reasonably related to the goals of rehabilitation.” Petitioners’ Br. at 19. Petitioners further argued that federal law “does not give Pennsylvania courts authority to order that individuals subject to court supervision refrain from exercising their right under state law to use medical marijuana.” Id. at 34.

In response, the 52nd Judicial District countered that the “MMA does not grant probationers an absolute right to use medical marijuana while on probation without any supervision or oversight by the Judicial District.” Respondent’s Br. at 10. The Judicial District further argued that the courts’ power to enact reasonable conditions on probation is not affected by the fact that “probationers” are not specifically referenced in the MMA, and that Petitioners’ interpretation “undermines the sentencing process.” Id. at 43.

As part of the courts’ ongoing Covid 19 response, the Supreme Court will hear oral argument in this case via video conference:

For more information, contact Kevin McKeon or Dennis Whitaker.