Drug Law Blog

Mentch Opinion Coming Soon

The California Supreme Court's website today noted that an opinion will be coming soon in People v. Mentch, the case on medical marijuana caregivers. I'm not sure how soon "soon" is, but perhaps we'll see something Monday.

Prop. 5 Defeated, Marijuana Initiatives Pass, and Other Election Updates

California's Proposition 5 has been defeated by a vote of about 60% opposed to 40% in favor. That's a letdown, but perhaps not too shabby of a poll result considering how extremely ambitious Prop. 5 was and how intense the opposition to it was from virtually the entire law enforcement community and Senator Feinstein.

(Californians also rejected Prop. 6, which would have required even more spending on law enforcement, but passed Prop. 9, which boosts victim input in criminal trials and restricts criminal defendants' rights.)

In other states, marijuana measures won: Michigan's medical marijuana initiative passed easily, as it was expected to do.  Massachusetts voters approved a striking measure that entirely eliminates criminal penalties for marijuana users, medical or otherwise.

Drug warrior and Indiana Congressman Mark Souder was re-elected, overcoming a solid challenge from Democrat Michael Montagano.

In San Francisco, Measure T, which adequately funds drug treatment on demand, passed strongly.

Oregon's Measure 61 -- a real anachronism of a crime bill that would have established 3-year mandatory minimums for certain drug offenses -- appears to have been effectively defeated by the passage by a higher margin of a Measure 57, a competing initiative on the same subject.

Finally, I just can't help saying that Obama is the man. It should be a nice change of pace to have a president who can put together a complete sentence. The implications of an Obama White House in terms of an Attorney General pick are discussed a bit here. It should also be interesting to see Obama's pick when, as seems likely to happen soon, 88-year-old Justice Stevens retires from the Supreme Court.  

(Above: President-elect Obama waves to supporters on election night. Photo by Michael Macor, San Francisco Chronicle.)

Mentch Oral Argument Highlights

I made a little four-minute YouTube video that captures some of the interesting bits of last month's oral argument in People v. Mentch, the California Supreme Court case that will define which criminal defendants are entitled to get a jury instruction on acting as a "primary caregiver" to a medical marijuana patient.

The striking thing is that what Gibbs claims is the AG's position, right at the start of this clip, is actually asserted by Swanson at the end of the clip in the most extreme terms possible: that the provision of medical marijuana to an individual is literally meaningless in terms of whether a person is a "caregiver" to a patient. It's hard to imagine that that's what California voters meant when they voted for the statute allowing people to be "primary caregivers" to medical marijuana patients, but we'll see what the Supremes say about it.

Sorry about the crummy audio sync, by the way. I'm not sure why it came out that way.

Michigan Voters: Not Swayed by the John Walters Vending Machine Roadshow

John Walters must be frustrated. Here he went to all this trouble to shlep a gigantic vending machine out to Michigan to try to persuade voters of that state to defeat a medical marijuana initiative, only to learn that Michigan voters don't really find him credible. They're overwhelmingly in favor of Proposal 1, the medical marijuana ballot initiative, with 57 percent supporting it and only 36 percent opposing it.

(Above: ONDCP head John Walters speaks from the podium while the menacing medical marijuana vending machine, at left, glowers at the press.)

The Kelly Surprise: Attorney General Concedes That Amendment of Compassionate Use Act Was Unconstitutional

Surprising news in California medical marijuana law: the California Attorney General has conceded that the legislature's amendment of the 1996 Compassionate Use Act was unconstitutional, meaning that criminal defendants may soon be able to regain the ability to put on a trial defense under the Compassionate Use Act even if the amount of medical marijuana they possess exceeds the 8-ounce/6-mature-plant presumptive limits spelled out under the law enacted by the California legislature in 2003.

The AG's concession is described in its brief filed October 14 with the California Supreme Court in People v. Kelly, S164830. The basic argument in Kelly looked like it was going to be about whether the legislature, in enacting the Medical Marijuana Program in 2003, could constitutionally have imposed quantity limits on the affirmative defense for medical marijuana users created by voters through the Compassionate Use Act in 1996.

Instead, the AG isn't even fighting the constitutional point. Its brief comes right out and states that it "does not contest the Court of Appeal’s conclusion that section 11362.77 [the section of the Health and Safety Code that sets the quantity limits] is unconstitutionally amendatory insofar as it limits an in-court CUA defense." 

The AG's argument, then, is simply about the fact that the court of appeal could have created a more nuanced remedy to this constitutional problem by essentially making it clear that the MMP and the CUA operate as two distinct set of protections, one with quantity limits and one without. Under the CUA, the relevant legal standard is not any specific quantity cutoff but the more flexible language of People v. Trippet: a quantity “reasonably related to the patient’s current medical needs.”

Curiously, back in August, the AG released medical marijuana "guidelines" that did not discuss the idea that a medical marijuana patient could exceed the MMP quantity limits but still put on a defense under the Compassionate Use Act. In my opinion, the AG's reasonable position in Kelly will probably fix that problem, and will produce a structure that is both workable and coherent. The guidelines will provide clarity and security to individuals who want to be sure that they are staying within defined limits, while the Compassionate Use Act and the Trippet test will (if the Cal Supremes agree, and if they write an opinion that is sufficiently clear that trial courts and prosecutors can't wriggle out of it) continue to provide a "reasonableness" standard to be applied in situations where the quantity limits don't make sense for particular individuals. 

San Diego to Votes to Seek Cert Grant in Medical Marijuana Lawsuit

As it said it probably would do, San Diego County has voted to ask the United States Supreme Court to consider its lawsuit challenging California's medical marijuana law. That lawsuit, however, has now lost at the trial level and at the court of appeal, and the California Supreme Court has declined to hear it.

The writeup on this case, by Jeff McDonald of the San Diego Union-Tribune, is one of the more helpful pieces on this case that I've seen so far, because McDonald took the time to talk to some legal experts about the broader context of the argument San Diego is making. As he makes clear, the argument being advanced is pretty tenuous:

Legal experts tend to agree with the courts that rejected the position staked out by San Diego and San Bernardino counties. Those judges and scholars say the bottom line is that state laws do not prevent federal agents from enforcing the Controlled Substances Act, which classifies marijuana as among the most dangerous known drugs.

“California can do whatever it wants to do and the U.S. government can do whatever it wants to do,” said University of San Diego law professor Shaun Martin, who has argued three cases before the U.S. Supreme Court and prevailed once. “The counties' position that there's a conflict on this is a minority – a very minority – view.”

Constitutional law expert Erwin Chemerinsky said the U.S. Supreme Court generally reviews only those cases that have divided lower courts.

“There's a lot of misunderstanding about federal law and state law and pre-emption,” said Chemerinsky, the founding dean of the University of California Irvine law school. “What the state law does is say it's not a state crime to have medical marijuana.”

(Martin's suggestion in the passage above that the federal government can "do whatever it wants to do" is of course not correct. However, in the area of marijuana regulation, the feds asserted extremely broad powers in the 2005 case Gonzales v. Raich.)

Related Posts:

Cal Supremes Deny Review in Counties' Challenge to California Medical Marijuana Law 10/16/08

County of San Diego v. San Diego NORML: Fourth District Rejects San Diego's Challenge to California's Medical Marijuana Law 7/31/08

Medical Marijuana Patients Stand Up Against San Bernardino 8/13/08

Who Will Be the Attorney General in an Obama Administration?

If, as now seems quite likely, Barack Obama becomes president, who will he appoint as Attorney General to oversee federal law enforcement efforts? The new issue of the ABA Journal takes a stab at that question and suggests the following likely candidates: Eric Holder, a partner with the firm of Covington & Burling, and Deval Patrick, the governor of Massachusetts.

(Above: Eric Holder. Photo by Ray Lustig, Washington Post. Below: Deval Patrick.)

The ABA Journal writes of Holder:

Best known as a prosecutor, Holder was fresh out of law school when he was assigned to the newly formed public integrity section of the Justice Department. There, he helped prosecute several high-profile defendants, including a judge, a diplomat, an assistant U.S. attorney and a leading organized crime figure.

President Reagan nominated him to a D.C. judgeship and he was later tapped by President Clinton to serve as D.C.’s U.S. attorney. In 1997, Clinton elevated him to the No. 2 job in the Justice Department, and he briefly served as acting attorney general in the Bush administration while nominee John Ashcroft was being confirmed.

In 1997, according to NORML, Holder "proposed legislation to stiffen penalties for the possession of marijuana" while with the Justice Department.

Of Patrick, the ABA Journal writes:

Patrick clerked for a judge in the 9th U.S. Circuit Court of Appeals, worked as an attorney for the NAACP Legal Defense and Educational Fund and served in the Clinton administration as assistant attorney general in the civil rights division. Patrick has an extensive history of rights-related litigation, but he’s also served as general counsel for two major corporations—Texaco and Coca-Cola. Although he is only halfway through his term as governor, many believe he would be one of Obama’s top choices for AG, and Patrick would be hard-pressed to decline if asked.

Asked in March 2008 about the Massachusetts ballot initiative to decriminalize small amounts of marijuana for personal use, Patrick reportedly "said he had to consult with his Public Safety Secretary Kevin Burke and Secretary of Health and Human Services Dr. JudyAnn Bigby before staking out a position."

(Hat tip: Orin Kerr.)

Blogging NORML: Nadelmann on NORA, Elford on the AG medical marijuana guidelines

At the NORML (National Organization for the Reform of Marijuana Laws) conference in Berkeley today, Drug Policy Alliance Executive Director Ethan Nadelmann spoke about California’s Prop. 5, the Nonviolent Offender Rehabilitation Act, noting that if it passes it will be “hands down the biggest reform in prisons and sentencing and drug policy in the history of the country.”

 

(Above: Ethan Nadelmann speaks at the NORML conference.)

He noted, as news reports suggested yesterday, that CCPOA, the union of California correctional officers, has jumped into the fray against NORA – a factor that is sure to ramp up the level of hysteria and hype directed against Prop. 5.

“We’ve got to do everything we can to get people to focus on the bottom line,” Nadelmann said. “Ultimately it’s going to be a net fiscal savings, bottom line.”

Joe Elford of Americans for Safe Access also spoke on the medical marijuana guidelines recently released by the California Attorney General.  He noted that the AG had started to develop the guidelines at the request of law enforcement after the Fourth District Court of Appeal’s decision in Garden Grove (Kha). The AG actually asked for ASA’s input on the guidelines, Elford said, but “we couldn’t let anyone know about our involvement in this until the guidelines were published."

Cal Supremes Deny Review in Counties' Challenge to California Medical Marijuana Law

The California Supreme Court has denied review in the suit brought by the counties of San Diego and San Bernardino challenging California's Compassionate Use Act on federalism grounds. San Diego now plans to take the case to the United States Supreme Court, according to news accounts.

(Above: An Aug 12, 2008 protest in San Bernardino County, at which the board of supervisors was urged to drop this lawsuit.)

In a nutshell, as the links below explain, this case is an argument by the counties that federal law on controlled substances prevents California from decriminalizing the use of marijuana for medical purposes. In other words, the counties are arguing that California is literally obliged to continue arresting and incarcerating people in state prisons for marijuana offenses because to do otherwise would simply upset the federal drug control regime. It's a strange and rather perverse thing to see counties spending their tax dollars in a protracted argument about why they need to have less local control, and why their approach to policing and public safety -- quintessentially local issues -- needs to be decided in Washington D.C. rather than in, say, San Diego and San Bernardino.

Related Posts:

County of San Diego v. San Diego NORML: Fourth District Rejects San Diego's Challenge to California's Medical Marijuana Law 7/31/08

Medical Marijuana Patients Stand Up Against San Bernardino 8/13/08

Cal Supremes Hear Mentch on The Right to Jury Instruction on "Primary Caregiver" Status in Medical Marijuana Cases

The California Supreme Court is hearing oral argument today in People v. Mentch, a case on the standards for instructing juries on the role of medical marijuana "primary caregivers" in marijuana prosecutions.  The California Channel has streaming video. I'll try to get some clips to post later today. 

Background on the case is here.

(Above: Lawrence Gibbs addresses the California Supreme Court at today's oral argument in Mentch.)

(Hat tip: Lanny Swerdlow.)

Arnie Nixes AB2279 - No Workplace Protection for Medical Marijuana Patients

California Governor Arnold Schwarzenegger has vetoed AB2279, the bill sponsored by Rep. Mark Leno that would have given a degree of protection to employees who use medical marijuana. In vetoing the measure (see Arnie's statement here (pdf)), the Governator said "I am concerned with interference in employment decisions as they relate to marijuana use.  Employment protection was not a goal of the initiative as passed by voters in 1996."

With Leno's bill struck down, the California Supreme Court's decision in Ross v. RagingWire -- holding that California law does not prohibit employees from firing employees who test positive for medical marijuana -- remains the guiding authority in this area.

At the blog of Americans for Safe Access, Don Duncan has a few thoughts on the veto.

(Hat tip: Dale @ NORML.)

Related Posts:

AB 2279: Leno Introduces Bill to Protect Workplace Rights of Medical Marijuana Users 2/26/08

Ross v. RagingWire Oral Arguments 11/6/07

What Happened to Hinchey-Rohrabacher This Year?

A couple months ago, I spoke with a staff member in the office of Rep. Maurice Hinchey, who is typically a co-sponsor of the Hinchey-Rohrabacher Amendment to get the federal government out of the business of prosecuting medical marijuana crime.  At that time, the staff member mentioned to me that there was a chance Hinchey-Rohrabacher wouldn't happen this year.

A month or so ago, I left a message with Rep. Hinchey's office trying to get clarification on what's going on. I've heard nothing back. But it seems safe to say at this point that Hinchey-Rohrabacher isn't in the cards this year. I'm not entirely clear on why that is, and Rep. Hinchey's people never answered my question.

Obviously, there are bigger fish to fry at the moment, but it's still worth noting.

Update: Rebecca Saltzman of Americans for Safe Access notes the following in the comments:

the Hinchey-Rohrabacher amendment was never introduced because Congress did not follow through with the regular appropriations process.

Instead, they passed continuing resolutions to keep the country moving but held off on all appropriations debates until next year, when the Democrats are hoping they'll have a more sympathetic Administration.

Since the Hinchey amendment is an appropriations amendment, with no appropriations bill, there could be no amendment. So the fact that it didn't move forward has nothing to do with Hinchey or Rohrabacher's commitment to the issue, and nothing to do with the general state of medical marijuana in Congress. It instead has more to do with the overall state of Congressional politics and power.

People v. Boultinghouse: What Does Gammabutyrolactone Have to Do With Medical Marijuana and Federal Preemption?

Gammabutyrolactone, you say. What the heck is that?

(Above: Gammabutyrolactone. Image from Wikipedia.)

It's a chemical that is used to make the drug GHB, and it can also be used recreationally by itself. It's illegal to possess in California under Health & Safety Code section 11054, subdivision (e)(3).

Gammabutyrolactone was also the subject of People v. Boultinghouse (2005) 134 Cal.App.4th 619, in which a defendant convicted of possessing that chemical challenged the California statute on federal preemption grounds, noting that the federal Controlled Substances Act did not criminalize possession of gammabutyrolactone.

The Fourth District Court of Appeal rejected the preemption argument, and wrote the following:

Unlike Gonzales [v. Raich], our case does not present any issues respecting Congress' authority under the commerce clause. Rather, it involves the issue of preemption. While state power must yield to a legitimate exercise of federal commerce power, preemption is a far less restrictive doctrine when it comes to state authority. In fact, there is a strong presumption against federal preemption when it comes to the exercise of historic police powers of the states. ( Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949, 28 Cal.Rptr.3d 685, 111 P.3d 954.) That presumption will not be overcome absent a clear and manifest congressional purpose. ( Ibid.)

California's authority to regulate narcotics is well established. ( People v. Shephard (1959) 169 Cal.App.2d 283, 287, 337 P.2d 214.) Indeed, “ ‘The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.’ [Citation.]” ( Robinson v. California (1962) 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d 758; see also People v. Aston (1985) 39 Cal.3d 481, 490, 216 Cal.Rptr. 771, 703 P.2d 111 [California has a weighty interest in the suppression of controlled substances].) It would, therefore, take a clear expression of Congressional intent to convince us the preemption doctrine is applicable in this case. However, as noted at the outset, Congress has chosen to take a deferential approach to the states in the area of drug enforcement. Thus, we are loath to disturb Boultinghouse's conviction on the grounds of preemption.

All of this matters because the lawsuit that San Diego County is continuing to pursue to overturn California's medical marijuana law is based not on an argument about federal power to pass laws regarding drugs in connection with interstate commerce (that issue was put to bed by the United States Supreme Court in 2005 in Raich) but on an argument about preemption. San Diego isn't simply arguing that the federal government has the power to pass and enforce laws relating to marijuana. It's arguing that the federal government has acted so decisively in this area that states have no power to do anything other than what the feds want, that states are literally obliged to convict people under state law for using marijuana since the feds can convict people under federal law.

That type of argument didn't fly in Boultinghouse, although it's worth noting that it was being raised by a defendant rather than by a County in that case. We'll see how it works this time around.   

Margolin Delivers a Reality Check on the Medical Marijuana Guidelines

Los Angeles criminal defense attorney Allison Margolin, who works quite a bit on medical marijuana cases, had an excellent piece in the Daily News this week deconstructing the notion that the Attorney General's guidlines somehow make California medical marijuana law "clear" and "simple." 

In fact, she points out, the guidelines do not bind prosecutors and even if they did they actually are not all that clear:

Despite the fact that the attorney general considers these dispensary-related activities in California law, it is not a binding authority on district attorneys whose power is still left unchecked. In fact, the attorney general's opinion that hashish is considered within the purview of the medical-marijuana statute is often disregarded by prosecutors who claim that they need not follow an attorney general opinion.

Finally, the guidelines do nothing to clear up the confusion regarding the meaning of nonprofit, though they do echo the Medical Marijuana Program Act's restriction of collective activities to those conducted on a not-for-profit basis. However, this emphasis will do nothing to explain what is meant by not-for-profit. Currently, police claim that any amount of money seized is evidence of profit-making activities.

I have seen the lengths to which prosecutors will exploit the vagueness of the law to prosecute people. The guidelines will do nothing to curb the arbitrariness with which law enforcement and prosecutors selectively enforce it.

   

Appeal-Democrat on Medical Marijuana Guideline Foibles

The Appeal-Democrat of Marysville-Yuba City ran an editorial that is one of the more sensitive takes I've seen on the Attorney General's recently released guidelines on medical marijuana.  In particular, the Appeal-Democrat notes the following:

Our main problem with Brown's guidelines has to do with his contention, as stated in the summary, that the "guidelines affirm the legality of medical marijuana collectives and cooperatives, but make clear that such entities cannot be operated for profit." Proposition 215, the initiative approved by voters in 1996, does not ban profit, and that law can only be changed by a vote of the people, not by a legislative enactment or a set of guidelines from the attorney general.

This is an interesting point, and it stems from basically the same issue that is at stake in recent Court of Appeal decisions regarding the quantity limits for medical marijuana users, cases like Kelly and Phomphakdy. That issue, again, is simply that it was voters who created California's original medical marijuana law, the Compassionate Use Act, by initiative, in 1996. Though the legislature passed an additional, more detailed law called the Medical Marijuana Program in 2003, the legislature does not have the power to "amend" a voter initiative without the approval of the voters. Therefore, it is at least worth asking whether the 2003 language, which is what the AG is relying on in promulgating these guidelines about dispensary operation, is even good law.

I'm not sure that the AG's description of rules regarding dispensaries clearly "amends" the 1996 Compassionate Use Act in the way that the quantity limits rules did, because the Compassionate Use Act simply doesn't say very much one way or another about the way that dispensaries should operate.  The broader point, though, is that it's an curious decision by the AG to issue such extensive, detailed and sweeping guidelines about the way California's medical marijuana law "works," exactly at a time when, because of Kelly and Phomphakdy, it is no longer very clear how it works.

Related Posts:

California Attorney General Releases Medical Marijuana "Guidelines" 8/25/08

After Kelly, How Does California's Medical Marijuana Program Work? 5/26/08

Suit Against San Diego County Alleges County Conspires to Harass Medical Marijuana Doctors

From San Diego's News 8:

A lawsuit claims that the San Diego District Attorney's Office and other agencies are violating California's medical marijuana law by investigating doctors who treat medical marijuana patients.

The suit, filed by Dr. Alfonso Jimenez in San Diego Superior Court, names as defendants the San Diego County District Attorney's Office, District Attorney Bonnie Dumanis and one of her deputies, as well as the San Diego Police Department, its chief, William Lansdowne, and several individual officers, along with the Laguna Beach Police Department, its chief of police and a detective.

...

The suit alleges that the defendants have conspired with the Drug Enforcement Administration to violate a federal injunction against initiating an investigation of a physician solely on the ground that a doctor makes a recommendation for medical marijuana based on his or her medical judgment.

ASA: Medical Marijuana Guidelines Are a "Huge Victory"

Despite my extremely crabby reaction to the Attorney General's release of medical marijuana guidelines, Americans for Safe Access is calling them "a huge victory" for the medical marijuana movement.

ASA also says that the AG's issuance of the guidelines sends a message to the feds "that we are staying our course in California and that dispensaries, at least most of them, are law-abiding entities and should be protected by state law."

Whether the guidelines are a problem or a solution will be revealed over time, I suppose. However, given that the AG carried out a raid on a dispensary in conjunction with issuing the new guidelines, I don't think it's strange that some media interpreted the AG's action as "getting tough" on clubs.

California Attorney General Wades Into the Medical Marijuana Raid Business

This is disgraceful. Three days before the California Attorney General issues "guidelines" on medical marijuana, including four pages of single-spaced legal analysis specifically on the operation of medical marijuana dispensaries, it conducts a raid on a Northridge dispensary that it contends is operating "illegally."

Here's a radical thought: perhaps it would have been easier for the dispensary in question to operate "legally" if the AG had given the guidelines to the dispensary at least somewhat before conducting the raid.

Is this any way for California law enforcement to be handling this issue?

Would they treat a supermarket or a liquor store this way? Arrest first and ask questions later?

This is the first raid in recent memory on a medical marijuana dispensary that has been carried out specifically by the California Attorney General rather than the DEA.

There is a reason for that.

California voters support medical marijuana. They support medical marijuana dispensaries. If a dispensary is not complying with what the Attorney General feels is the law, there are a whole host of responses that would help these business comply with the relevant guidelines.

Engaging in these federal-style "crackdowns" is obnoxious, counterproductive, and in bad faith. It will only drive operators underground, out of the reach of state regulators.

California Attorney General Releases Medical Marijuana "Guidelines"

The California Attorney General has issued a strange and interesting set of "guidelines" (pdf) around medical marijuana, a document whose legal significance would seem to be totally unclear. These guidelines are actually required by statute (H&S 11362.81(d)) but they are coming at a time when the medical marijuana law is really, seriously unsettled as a result of the recent decisions in Kelly and Phomphakdy. As a result, these guidelines try to present the medical marijuana law as a coherent body of regulations precisely at the time when these regulations are the most confused they've been in the last 12 years. I think it's really problematic. The AG's press release is here.

The most striking thing about this announcement, from my point of view, is its seeming disregard for the way California government works. The Attorney General is not the legislature, and does not have the power to re-write the Health and Safety Code to mean whatever it would like it to mean. In other words, even though the AG states on page 6 that "Qualified patients claiming protection under Proposition 215 may possess an amount of marijuana that is 'reasonably related to [their] current medical needs' " that assertion is simply not the law of California at the moment. At least, it's not the law as it's actually enforced by police and prosecuted by district attorneys. Rather, it seems to be what the AG would like the law to be.

The guideline also suggests on page seven that non-cardholders who possess more than eight ounces of marijuana can seek immunity from arrest, and that law enforcement should evaluate this claim based on "the totality of the circumstances," a phrase borrowed from Fourth Amendment jurisprudence.  That, too, seems to go beyond the text of H&S 11362.71(e), which provides protection for arrest -- but only for individuals who possess marijuana within the quantity limits of the Medical Marijuana Program, i.e. eight ounces, six mature plants, etc.

Meanwhile, on the basis of this very same "totality of the circumstances" test, the AG says that an officer can also make a determination that a non-cardholder's marijuana quantities "exceeds the applicable possession guidelines" and may seize the marijuana. Does that include situations when a non-cardholder possesses less than eight ounces? Tough to say.

Totally bizarre. I think the intentions behind this document are basically good. But, uh, there's this little thing called separation of powers. If the Attorney General can rewrite the law at will just by issuing a "guideline," we're in serious trouble.

California Medical Marijuana Plaintiff Gary Ross on the Colbert Report

The Colbert Report ran quite a funny segment on Gary Ross, the plaintiff of the recent California Supreme Court case Ross v. RagingWire, which was about the workplace rights of medical marijuana users. Last week, the California legislature passed AB2279 in response to the California Supreme Court's decision in that case.

(Hat tip: Americans for Safe Access.)

Related Posts:

AB 2279: Leno Introduces Bill to Protect Workplace Rights of Medical Marijuana Users 2/26/08

Ross v. RagingWire Oral Arguments 11/6/07

Santa Cruz v. Mukasey: Federal Judge Denies Feds' Motion to Dismiss Tenth Amendment Challenge to Medical Marijuana Crackdown

A federal judge on Wednesday (8/20/08) denied the federal government's request to dismiss a lawsuit challenging the feds' attempt to undermine California's medical marijuana law. The ACLU describes this ruling as stating "that the U.S. Constitution bars deliberate subversion by the federal government of state medical marijuana laws." Judge Jeremy Fogel writes:

Plaintiffs allege that federal officials have devised a strategic plan of targeted enforcement that has had the intended effect of “rendering California’s medical marijuana laws impossible to implement and thereby forcing California and its political subdivisions to recriminalize medial marijuana.” SAC ¶ 4. Specifically, Plaintiffs allege that Defendants have: (1) threatened to punish California physicians who recommend marijuana, Id. at ¶¶ 85-91; (2) threatened government officials who issue medical marijuana identification cards, Id. at ¶¶ 94(a), 95-96; (3) interfered with municipal zoning plans, Id. at ¶94(c); and (4) targeted for arrest and prosecution those providers of medical marijuana who cooperate most closely with municipalities. Id. at ¶¶ 94(b), 94(d)-(e), 97. Plaintiffs assert that these actions violate the Tenth Amendment by making it impossible for the state to distinguish between authorized and recreational users of marijuana, a distinction that is necessary for the proper enforcement of California law.

...

In his concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief Judge Kozinski opined that Defendants’ manner of enforcing the CSA had commandeered California’s legislative process, at least as to the legal rights and obligations of physicians:

The state relies on the recommendation of a state-licensed physician to define the line between legal and illegal marijuana use. The federal government’s policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law. Normally, of course, this would not be a problem, because where state and federal law collide, federal law wins. . . . . . . Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. Yet the effect of the federal government’s policy is precisely that: By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients’ conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical marijuana from the operation of its drug laws. In effect, the federal government is forcing the state to keep medical marijuana illegal. But preventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-46 (Kozinski, concurring).

While this authority is not controlling, it is the only authority that addresses the precise issue at hand, and it suggests that at least at the pleading stage Plaintiffs’ claim may be cognizable. If Plaintiffs can prove that Defendants are enforcing the CSA in the manner alleged, a question as to which the Court expresses no opinion, they may be able to show that Defendants deliberately are seeking to frustrate the state’s ability to determine whether an individual’s use of marijuana is permissible under California law. A working system of recommendations, identification cards and medicinal providers is essential to the administration of California’s medical marijuana law. The effect of a concerted effort to disrupt that system at least arguably would be to require state officials to enforce the terms of the CSA. Because the Court must assume that Plaintiffs’ allegations are true and resolve any doubt in Plaintiffs’ favor for the purposes of the instant motion, and because Plaintiffs have alleged their claim with considerably greater factual specificity than they did in their First Amended Complaint, the motion to dismiss will be denied as to Plaintiffs’ third claim.

Employee Rights Bill Protecting Medical Marijuana Users, AB2279, Passes California Senate

Americans for Safe Access notes:

A medical marijuana employment rights bill, which would protect hundreds of thousands of medical marijuana patients in California from employment discrimination, passed the State Senate today. AB2279 had already passed the State Assembly in May, which means the bill now heads to the Governor's desk. Advocates expect the bill to reach Schwarzenegger's desk in the next few weeks.

This bill is a response to the California Supreme Court's decision in Ross v. RagingWire, in which the court held that California's law on medical marijuana does not prevent employers from firing employees on the basis that marijuana continues to be illegal under federal law.

Update: AB2279 was ultimately vetoed by Gov. Schwarzenegger.

Related Posts:

AB 2279: Leno Introduces Bill to Protect Workplace Rights of Medical Marijuana Users 2/26/08

Ross v. RagingWire Oral Arguments 11/6/07

LA Times on the Science of Medical Marijuana

Jill Adams had a marvelous piece in the LA Times Monday (8/18/08) on the pros and cons of medical marijuana.  The article is refreshingly straightforward and candid, presented with context that helps the reader understand how marijuana stacks up against other drugs that are commonly used. She notes:

The truth, these researchers say, is that marijuana has medical benefits -- for chronic-pain syndromes, cancer pain, multiple sclerosis, AIDS wasting syndrome and the nausea that accompanies chemotherapy -- and attempts to understand and harness these are being hampered. Also, they add, science reveals that the risks of marijuana use, which have been thoroughly researched, are real but generally small.

Bravo to Adams for cutting through the hype and just presenting the facts.

NPR on Medical Marijuana and the Lynch Trial

I had hoped that NPR would do a little more to put medical marijuana in context vis a vis the use of other medical drugs, but on balance this a better piece than the New Yorker did recently. NPR is taking the issue a little more seriously, doing a little more work to move beyond the stereotypes (although the whole "Alice in Wonderland" thing is awfully predictable and frankly pretty disappointing), and even illustrating some of the ways that federal policies seem to be misguided. I'll take it.

Egelko on Kelly and the SB420 Debate: The Legal Haiku of Thresholds and Ceilings

This morning Bob Egelko has a pretty good writeup in the SF Chronicle about the grant of review in People v. Kelly, the medical marijuana quantity limits case, and also about the way the medical marijuana community has been split over whether the quantity limits established by SB420/the Medical Marijuana Program are a good or a bad thing. Egelko notes that some groups, such as Americans for Safe Access and the ACLU, think the court of appeal "should have left some standards in place to guide police and protect patients" and argue that the quantity limits of the Medical Marijuana Program were intended to be an optional rather than a mandatory guideline -- something that patients could opt in to, if they wanted to, through the ID card program established under the MMP.

The confusion in this area stems from two distinct problems: one is that the legislature made a drafting error in writing SB420, such that the quantity limit language of that law seems to apply to absolutely all medical marijuana patients, not just patients who opt-in to the ID card program. The second problem is that the California Supreme Court, when it discussed this general issue in the 2006 case of People v. Wright, wrote the following about the quantity limits:

the amounts set forth in section 11362.77, subdivision (a) were intended "to be the threshold, not the ceiling."

That line about the "threshold, not the ceiling," comes from the legislative history of SB420, but trying to figure out exactly what it means has taken up the brain power of many otherwise capable people. As best I can tell, the word "threshold" in that sentence does not mean "entrance" to legal protections, as one might suppose from the association between "threshold" and "doorway." Rather, it means that the quantity limit is the "boundary" between the protections of SB420 and the broader, less specifically defined "reasonableness"-oriented protections of the Compassionate Use Act. But that's just my best guess. When law is written in metaphors, it reads like haiku. Unfortunately, many people who thought they were legitimate medical marijuana patients have been arrested, prosecuted and convicted under state law on the basis of that haiku.

For more background on what this debate is about, see this blog's overview of California medical marijuana law.

Cal Supremes Grant Review in Kelly - Medical Marijuana Quantity Limits Now Even More Confusing

The California Supreme Court has granted review in People v. Kelly, the Second District Court of Appeal case dealing with the quantity limits on the affirmative defense for medical marijuana users under California's Medical Marijuana Program. Meanwhile, it did not grant review in People v. Phomphakdy, the Third District Court of Appeal case dealing with the same issue, which reached basically the same holding as Kelly.

California's legislatively enacted medical marijuana quantity limits are now a puzzle wrapped in a muddle tucked inside a problem. In short: total chaos.

(Update: in its brief in Kelly, the Attorney General has conceded that the quantity limits do not apply to a defense based on the Compassionate Use Act.)

Medical Marijuana Patients Stand Up Against San Bernardino

Here are two cool pictures of some of the folks who came to Tuesday's protest in San Bernardino County to urge the board of supervisors to give up its twice-defeated lawsuit to overturn California medical marijuana law on the basis of federal law. Background on the suit, which San Bernardino has been pursuing along with San Diego County, is below.

(Above: Activists at the Aug 12, 2008 protest in San Bernardino. Below: Fidel Valenzuela makes his case to the San Bernardino Board of Supervisors. Photos by Eric Reed, The Sun.)

Related Posts:

County of San Diego v. San Diego NORML: Fourth District Rejects San Diego's Challenge to California's Medical Marijuana Law 7/31/08

San Diego County to Continue its Appellate Challenge to California Medical Marijuana Law 8/6/08

Reason.tv on the Charlie Lynch Conviction

Reason.tv has quite a good video posted with an analysis of how the case went in the federal trial of Morro Bay medical marijuana dispensary operator Charlie Lynch. I can't embed the video here because the frame is much too wide for this blog and I don't have the java chops to resize it.

Medical Marijuana and Neuropathic AIDS Pain

Another important study for the ONDCP and the FDA to ignore: one indicating that smoked medical marijuana provides significant relief from the neuropathic pain associated with AIDS, notwithstanding the insistence of those agencies that nothing smoked can possibly be a medical drug. The Washington Post reports:

The researchers found that 46 percent of patients who smoked medicinal marijuana reported clinically meaningful pain relief, compared with 18 percent of those who smoked a placebo.

The study, published online Aug. 6 in Neuropsychopharmacology, was sponsored by the University of California Center for Medical Cannabis Research (CMCR).

"Neuropathy is a chronic and significant problem in HIV patients as there are few existing treatments that offer adequate pain management to sufferers," study leader Dr. Ronald J. Ellis, an associate professor of neurosciences, said in an UCSD news release. "We found that smoked cannabis was generally well-tolerated and effective when added to the patient's existing pain medication, resulting in increased pain relief."

The title of the study, by the way, is Smoked Medicinal Cannabis for Neuropathic Pain in HIV: A Randomized, Crossover Clinical Trial, and the abstract is here.

San Diego County to Continue its Appellate Challenge to California Medical Marijuana Law

Vigorously defending its right to throw people in prison, San Diego County has vowed to continue to its federalism-based challenge to California's medical marijuana laws, petitioning the California Supreme Court for review in the case it has already lost at the trial level and in the Fourth District Court of Appeal.

Why does this remind me of The Great Gatsbsy? Maybe it's because the San Diego County Board of Supervisors is so determined to "beat on, boats against the current, borne back ceaselessly into the past." Oh well.

Related Posts:

County of San Diego v. San Diego NORML: Fourth District Rejects San Diego's Challenge to California's Medical Marijuana Law 7/31/08

San Diego Appeals Ruling on Medical Marijuana 12/13/06

San Diego County's Crackdown on Medical Marijuana Dispensaries and the Challenging Questions of "Micro-Federalism" 7/19/06

People v. Windus on Timing of Medical Marijuana Quantity Recommendation

A medical marijuana patient should have been able to present a defense under the Compassionate Use Act despite the fact that his doctor's recommendation had expired and despite the fact that he possessed 1.6 pounds of marijuana, the Second District Court of Appeal held 7/30/08 in People v. Windus, B196483.

Unlike the other recent cases that have dealt with quantity limitations -- People v. Kelly and People v. Phomphakdy -- Windus declines to address the constitutionality of the Medical Marijuana Program's amendment of the Compassionate Use Act. However, it addresses some tricky issues about when a doctor's "recommendation or approval" can be presented to support a medical use defense.

First, Windus is the first case I've seen that addresses the question of a doctor's recommendation expiring. Most such recommendations of which I'm aware are for one year, requiring a patient to regularly renew them (and pay a new fee to the doctor each time, naturally). Windus points out, however, that there is "nothing in the statute that requires a patient to periodically renew a doctor’s recommendation regarding medical marijuana use. The statute does not provide, as the Attorney General asserts, that a recommendation 'expires' after a certain period of time."

Windus also deals with allowing a doctor to validate the quantity of medical marijuana use after arrest, but distinguishes the 1999 case of People v. Rigo, 69 Cal.App.4th 409, in which the defendant never saw a doctor at all until after arrest. In Windus, the defendant had seen a doctor regarding the use of medical marijuana several times prior to arrest, and simply needed the doctor to testify to the fact that a person who eats marijuana rather than smoking it will end up consuming larger quantities of the drug.

Windus states that "In order to present a CUA defense to the jury, a defendant must have obtained a recommendation to use medical marijuana prior to his or her arrest. However, that recommendation need not specify an approved dosage or amount of marijuana that may be possessed. A doctor’s opinion that the amount in the defendant’s possession meets his or her personal medical needs may be
proffered at trial."

This is an interesting and, in my opinion, reasonable conclusion. As the quantity limits of the Medical Marijuana Program increasingly appear like they are going to be a thing of the past, Windus is going to be an important case for analyzing the reasonableness of quantities of medical marijuana.