Sixth Circuit Rejects Doctor’s Claim of Constitutional Right to Prescribe Medical Marijuana

On August 13, the Sixth Circuit issued a decision affirming dismissal of a complaint that state administrators infringed on a doctor’s constitutionally protected right to dispense medical marijuana. The problem, the appellate court said, was that the doctor could not point to a “clearly established liberty or property interest,” protected by the Constitution that had been violated. Further, the court held, the state official defendants were entitled to qualified immunity.

The plaintiff, Michigan physician Vernon Proctor, issued medical marijuana certificates to patients that had to be verified through Michigan’s Department of Licensing and Regulatory Affairs (LARA). In 2016, Proctor and LARA had a dispute over LARA’s means of verifying patients. Subsequently, and because Proctor would not comply with LARA’s protocol, the department began rejecting all medical marijuana applications bearing his approval.

Proctor alleged that the two LARA employees’ “blanket rejections” of applications he certified violated his Fourteenth Amendment due process rights by “‘restricting his medical license without prior notice’ or ‘post-deprivation process.’” Circuit Judges Gibbons, Griffin, and Thapar explained that in order to establish that Michigan had indeed deprived Proctor of his rights, he had to show that he had “a life, liberty, or property interest protected by the Due Process Clause[,] [] he was deprived of this protected interest[,] and the state did not afford him adequate procedural rights prior to depriving him of the property interest.”

The court concluded that Proctor’s contention “that he has a constitutionally protected interest in helping others procure a substance banned by federal law… [is] doubtful, at best… [and] is far from clearly established.” The panel reasoned that Proctor failed to meet the first requirement of the tripartite test because “[w]hatever deprivation Proctor suffered from LARA rejecting applications bearing his certifications, it is far short of a full deprivation of his right to practice medicine.” Thus, the right to prescribe medical marijuana was not a protected one recognized under the courts’ interpretation of constitutional law.

The judges also held that the two LARA employees were entitled to qualified immunity because they decided not to accept Proctor’s medical marijuana certifications with discretion, or as a result of their deliberation. Under circuit precedent, this entitled them to partial immunity and spared their professional judgment from scrutiny.

The plaintiff is represented by J. Nicholas Bostic. The defendant is represented by lawyers from Michigan’s Office of the Attorney General.