Ruling protects pot patients

September 04, 2007

Anne Saker, The Oregonian

A federal judge has thrown out sweeping subpoenas for patient records kept by Oregon's medical marijuana program and a private clinic, saying privacy concerns overruled a grand jury's demand for information.

Chief U.S. District Judge Robert H. Whaley in Yakima ruled on the subpoenas four months after a grand jury in that city issued them. The grand jury wanted to know about 17 patients who got medical marijuana from a grower with operations in Oregon and Washington.

Advocates for medical marijuana have said the subpoenas marked a new tactic in federal efforts to stop state-run programs such as Oregon's. In California, federal drug agents have closed medical marijuana dispensaries and prosecuted doctors who prescribed marijuana to patients.

The state of Oregon and the private Hemp and Cannabis Foundation went to court this summer to stop the subpoenas, and Whaley convened a hearing Aug. 1.

In his eight-page decision issued Tuesday, Whaley wrote that grand juries have wide latitude to conduct investigations and can issue subpoenas for almost any kind of information. The subpoenas cannot be quashed unless the person or organization fighting the subpoena can show the demand is unreasonable, the judge said.

Whaley found that the subpoenas against Oregon's program and the foundation were unreasonable.

"There is an obvious tension between the state's authorization of the production and use of marijuana as a medicine and the federal authority to make such activity a crime," Whaley wrote. "The point at which that tension should be broken by the compelled production of records to a federal grand jury has not been reached with these subpoenas."

Oregon voters enacted the state's medical marijuana program in 1998, and 14,868 state residents hold patient cards. Another 7,115 people hold licenses to grow medical marijuana; they cannot sell marijuana but can accept donations to defray expenses.

The state law governing the program expressly states that medical records will be kept confidential.

The Hemp and Cannabis Foundation is a Portland organization with clinics in Oregon, Washington, Colorado and Hawaii where doctors can examine patients and determine whether marijuana would be useful as medicine.

Whaley tossed out the subpoena to the foundation because its medical records "represent implementation of the state's program and are integral to the success of the program."

D. Paul Stanford, the foundation's founder and chief executive officer, said Wednesday the ruling will "protect medical marijuana patients' records and confidentiality. There are limits to the government's power to intimidate doctors and patients, and fortunately, the federal courts have delineated those limits."

Adam Wolf, a lawyer for the American Civil Liberties Union's Drug Law Reform Project who argued on behalf of the foundation, said the ACLU believes the case is important. "This should reassure physicians and patients that they are safe," Wolf said.

Assistant U.S. Attorney James Hagerty in Yakima, who is presenting the evidence to the grand jury, was on vacation and not available to comment. When contacted last month about the subpoenas, Hagerty refused to discuss the investigation.

But Stanford said the grand jury is looking at one man who ran a Goldendale, Wash., grow site for Oregon patients and an Estacada site for Washington patients. Stanford said that activity was not allowed under either state's medical marijuana program.

Madeline Martinez, executive director of the Oregon branch of the National Organization for the Reform of Marijuana Laws, was jubilant over the ruling.

"I'm celebrating! Power to the people!" she said. "We were really afraid that this big, broad arm of the government was trying to overreach. We're patients. We're not criminals. We're just thrilled to pieces about this."

The ruling comes just before Oregon NORML, the Hemp and Cannabis Foundation and other groups convene the third annual Hempstalk festival this weekend at Sellwood-Riverside Park. The city of Portland had turned down the group's application for a permit for the event but relented after the ACLU stepped in.

Anne Saker: 503-294-7656; annesaker@news.oregonian.com



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