Blog Voices from the Frontlines
Fate of Medical Marijuana Patients' Right to Work Rests with the California Supreme Court - Americans for Safe AccessAnalysis of oral arguments before the California Supreme Court in Ross v. RagingWire on 6 November 2007 Unfortunately, I was not able to attend Tuesday's oral arguments before the California Supreme Court (CSC) on whether employers like RagingWire Telecommunications, Inc. have the right to discriminate against medical marijuana patients like Gary Ross. At the time the CSC granted review in November 2006, I was the Legal Campaign Director at Americans for Safe Access (ASA). Without a doubt, it was a proud day for me and everyone else at ASA to have this case finally get heard. I was equally excited, in my new role as Media Liaison at ASA, to see the extent of news coverage on this important issue, with articles in AP, SF Chronicle, Sacramento Bee, The Recorder, and FindLaw. When I viewed the oral arguments after the fact, on the California Channel, which ran a live feed from the courtroom, I was left with much optimism for a ruling that favors Ross's struggle to be free from discrimination. The three areas I felt the court focused on most were: whether RagingWire, the employer, would be unreasonably inconvenienced to be required to hire or continue to employ medical marijuana patients; whether federal law somehow prevented RagingWire from hiring or continuing to employ medical marijuana patients; and whether the People of California or the State Legislature intended to exclude medical marijuana patients from the workforce. It was my impression that ASA Chief Counsel Joe Elford and attorney Stewart Katz, each acting as co-counsel arguing before the court, nailed each of those issues extremely well, while opposing counsel for RagingWire foundered and failed to provide solid responses to the court. I will attempt to detail each of the three issues below. Regarding unreasonable inconvenience, Elford rightly claimed that concerns over unlikely interference by federal law enforcement at the workplace, or elsewhere, did not rise to the level of needing to carve out a large exception to the Fair Employment and Housing Act (FEHA) simply to allow employers to discriminate in this way. Nor did it rise to the level of forcing more than 200,000 medical marijuana patients in California from the workplace and denying them a right to thrive. Elford also points out that some of the existing accommodations required of employers by FEHA (he used the example of ramps for wheelchair-bound workers) far surpass any inconvenience that might be posed by accommodating the productive employment of medical marijuana patients. The Compassionate Use Act (or Proposition 215) is pretty clear in conferring "the right" to "seriously ill Californians" to "obtain and use marijuana for medical purposes." To have any meaning, this "right" must not prevent patients from earning a living. Regarding the issue of supposed state-federal conflict, it was amply answered that there is none. By granting Ross, who is a productive, disabled veteran, the same right to work as others in his field, the employer is in no way violating federal law. The Drug-Free Workplace laws pertain only to on-the-job intoxication, possession, or distribution of illegal substances. As offensive as many drug-testing requirements are, the federal government never meant Drug-Free Workplace laws to reach into the homes of productive workers. The specter of losing federal contracts is also a red herring, since such forms of punishment absent of wrongdoing (under state or federal law) by the worker(s) and employer would be unjustified and arguably illegal. Regarding the intent of the legislature, Ross wins hands down. The fact that the California Legislature only implied the right to work by indicating that employers need not accommodate on-the-job medical marijuana use compelled the court to ask multiple questions on the matter. That the legislature made note of employment in the Medical Marijuana Program Act but failed to provide employers with a blanket right to discriminate against patients speaks volumes to their right to work. However, we don't even need to go there. There should be no question as to the intent of the legislature, since an amicus 'friend of the court' brief was filed by all five of the original co-authors detailing their intent to provide medical marijuana patients the same discrimination-free opportunities as other productive workers in California. The CSC will decide this case on or before February 5, 2008. The livelihood of literally hundreds of thousands of patients is now in the delicate hands of the court. However, regardless of the outcome, the strong conviction of a majority of Californians voters and a legislature that endorsed the rights of medical marijuana patients will continue to compel us to strive for justice. For more information, see ASA's web page on the Ross v. RagingWire case, which is also located on ASA's Brief Bank page.
Sometimes, medical cannabis advocates have plenty of time to prepare in advance for an important vote at their City Council or County Board of Supervisors. We can write letters and make phone calls to elected officials, prepare a speech for public comments, and even rally the troops by inviting friends and loved ones to attend a meeting.
In other cases, however, you may have to jump and run when you learn about a challenge or opportunity in your community. That is exactly what happened last week in Orange County, when Supervisor Bates quietly introduced an ordinance that would have prohibited the County from issuing any licenses, permits, or allowances for an activity that violates local, state, or federal law. Nothing in her ordinance mentioned medical cannabis, but if adopted, it would have been a de facto ban on medical cannabis patients’ dispensaries in the unincorporated areas of Orange County. This is a tactic already used successfully in at least two Orange County cities.
County staff failed to realize the significance of Bates’ eleventh-hour proposal for medical cannabis patients until an alert aide in Supervisor’s Norby’s office realized what was about to happen – less than twenty-four hours before the vote! Supervisor Norby has always been a strong supporter of medical cannabis, and asked his staff to contact ASA right away. News reached our office at 3 PM on Monday, October 29. By that time, there were only two hours left in the workday before the Board convened to vote at 9 AM on Tuesday morning.
I left short telephone message for all five supervisors, then followed up with a longer email explaining that regulating collectives was a better option than banning them. I asked them to table the matter until they had a chance to read ASA’s report on the positive outcomes of regulations statewide and review LA County’s year-old ordinance. Then I called a handful of dedicated local advocates to invite them to speak at the Board meeting the next morning. Finally, I used ASA’s Southern California announcement list and new discussion forums to alert the grassroots of the challenge.
The other speakers and I were successful in persuading the Board to table the issue for more study, giving us the time we need to sell them on the benefits of regulation. I anticipate Orange County will now follow LA’s lead towards sensible regulations, instead of San Diego’s path of obstruction. That’s good news for patients in Orange County, and a strategic victory for the statewide campaign! As an added benefit, we were able to show some grassroots support for Supervisor Norby, who recently joined ASA in calling on Governor Schwarzenegger to stand up for patients.
The lesson from Orange County is to be prepared in advance to act quickly. Do you know where to find the telephone numbers and email addresses of your local representatives? Most cities and counties have web sites list this information. Do you know what to say if you have to speak at a meeting or to the media? (You can find talking points for issues like these on the ASA web site.) Do you know whom to call to help you out? You could organize a small group of advocates in your city to be a medical cannabis “strike force” that can act on short notice. Your local ASA Chapter is a great place to find your team.
Perhaps the most important thing to do is to make a personal commitment to act in your community when there is a challenge or an opportunity. The outcome in your city or county may depend on whether or not you and your neighbors are prepared to take responsibility for defending patients’ rights and safe access. So get prepared, stay alert, and take action… no matter how short the notice!