Blog Voices from the Frontlines
California Court Rules Against Patients' Rights- Assemblyman Mark Leno and ASA Respond with Legislation
This week, the California Supreme Court delivered a major blow to patients' civil rights. On Thursday, the California Supreme Court ruled that Proposition 215 does not protect legal patients from being fired if they test positive for medical cannabis use. In a 5-2 decision, the Supreme Court claimed that Ross could not rely on the Fair Housing and Employment Act or the state's medical marijuana law to prevent discrimination at the workplace. Gary Ross, a 45-year old disabled veteran and a medical marijuana patient, was fired in 2001 by his then-employer Raging Wire Telecommunications after he disclosed that he was a medical cannabis patient and would test positive to the company's mandatory drug test. Following this event, Ross filed a lawsuit arguing that Raging Wire illegally discriminated against him because of his condition. However, a Sacramento Superior Court, and then the Third Appellate District Court both rejected his argument. In October 2005, ASA appealed to the California Supreme Court on behalf of Ross. The California Supreme Court's decision on Thursday was a major blow to medical marijuana patients' rights, with the potential to limit a patients' right to work. ASA's Chief Counsel, Joe Elford, played a significant role in Mr. Ross' case, helping write the appeal and serving as co-counsel to Mr. Ross starting in 2005. For more information on the Ross case read Mr. Elford's blog on the case and the California Supreme Court Decision at: www.AmericansforSafeAccess.org/RossDecisionBlog
The good news is that California Assemblyman Mark Leno and ASA were waiting to respond in case of an adverse ruling like this. Assemblyman Leno announced only hours after the decision on Thursday that he will be introducing an ASA-sponsored piece of legislation that will amend California law to protect patients from this kind of discrimination. In his press release, Assemblyman Leno wrote, "Today's California Supreme Court ruling strikes a serious blow to patients' rights. In the coming weeks I will introduce legislation that secures a medical cannabis patient's right to use their doctor recommended medication outside the workplace. Through the passage of Proposition 215 in 1996 and SB 420 in 2004, the people of California did not intend that patients be unemployed in order to use medical marijuana." Assemblyman Leno's legislation will accomplish what the California Supreme Court's decision has diminished. This bill will properly protect legal medical cannabis patients and ensure their right to work.
Read Assemblyman Leno's press release about this important piece of legislation: www.AmericansforSafeAccess.org/downloads/leno_ross_release.pdf For background on the Ross vs. Raging Wire case visit: www.AmericansforSafeAccess.org/Ross Read the California Supreme Court's decision at: www.AmericansforSafeAccess.org/downloads/Ross_Ruling.pdf San Francisco Democratic Committee Calls on Mayor Newsom to Take a Stand From San Francisco ASA Core Leader, Alex Franco In a huge step forward for the Stand Up Newsom Campaign and patients in San Francisco, the San Francisco Democratic Congressional Campaign Committee passed a resolution with the following amendment: "...that Mayor Gavin Newsom, the San Francisco Board of Supervisors and San Francisco’s State legislators join with Oakland Mayor and former Congressman Ron Dellums in denouncing the DEA tactics surrounding the property rights of landlords who rent to medical cannabis dispensaries." At Wednesday night's San Francisco Democratic Congressional Campaign Committee meeting, party Vice Chair and San Francisco Marijuana Offenses Oversight Committee co-chair, Michael Goldstein, seeing the ineffectiveness of the resolution as presented proffered an amendment requesting Mayor Gavin Newsom to join Oakland Mayor Ron Dellums in condemning the DEA's recent tactics of intimidating property owners who rent to medical cannabis dispensaries. Upon hearing the loud applause from the public in attendance, committee member Robert Haaland was moved to ask to join Vice Chair Michael Goldstein's amendment by adding language that included the San Francisco Board of Supervisors and San Francisco's elected state officials. This added strength to a position of support already voiced to advocates by many of the Board members, and Senator Carole Migden who is currently moving legislation supporting medical cannabis dispensary owners and their landlords through the state legislature. San Francisco Assembly member Mark Leno has also voiced support of safe access of patients to their medication. Activists from Axis of Love SF, the Harvey Milk Club and Americans for Safe Access San Francisco spoke on behalf of the resolution. Some activists who were called minutes before the meeting rushed to the site and were able to demonstrate their support through their presence. The committee showed it understood the issue by first supporting the amendment, then by passing the entire resolution that included the amended language. Both votes were nearly unanimous with the exception of one abstention by Senator Diane Feinstein. Feinstein's proxy, George Broder, explained his vote by noting he was unable to vote without passing it by the Senator. The Democratic Congressional Campaign Committee (DCCC) is the official campaign arm of the Democrats in the House of Representatives. The DCCC is the only political committee in the country whose principal mission is to support Democratic House candidates every step of the way through this critical election year. Congratulations to ASA and the activists involved in getting this resolution passed. For more information about the DCCC's decision and to find out how you can get involved, contact Alex at: aaaFranco@yahoo.com
It was a very cold day today in the Bay Area. It was cold in San Francisco and, unusually, colder still in Oakland. Far colder was the California Supreme Court's decision in Ross v. Ragingwire, which limits the Compassionate Use Act to far less than a shell of its promise of "ensur[ing] that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician. . . ." And this is not even to mention the Fair Employment and Housing Act, which, though hardly mentioned by the Supreme Court, was the basis for our position. While the politics involved here, as well as the uninformed opinion of those that think this was case was governed by federal law, make this decision unsurprising to many, I can state with confidence, even in defeat, that our legal position was solid and we should have won. Rather than take my word for it, I will simply direct everyone to the dissenting Put simply, in the words of Justice Kennard, "The majority’s holding disrespects the will of California’s voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment." There is no federal law that required the employer to drug test under the facts of this case, much less to fire Ross for testing positive for marijuana. The only relevance of federal law to the facts of this case is to sell Ragingwire's legally disingenuous position to the press and public. Unless there is a conflict between state and federal law, and here there is none, federal law cannot defeat state law requirements, which require employers to provide a reasonable accommodation for persons with disabilities. Absent such conflict the Court was obliged to apply state law (the Fair Employment and Housing Act and the Compassionate Use Act), which requires Ragingwire to provide a reasonable accommodation (not fire him for using the substance, legal under California law, to treat his disability). Unfortunately, as an an attorney who must continue to litigate cases before this Court, there are limitations on what I can say. Suffice it to say, we would not lose this case before all judges in California (or elsewhere), but only before these five of seven judges who were appointed to sit on this Court. Judges make all the difference, and in this case, they made for a cold, cold day.
Israel & Canada Move Ahead, while US Lags Behind in Medical Marijuana Research - Americans for Safe AccessEarlier this month, there were two exciting developments for medical cannabis internationally. In Israel, a Tel Aviv medical clinic began dispensing medical cannabis to patients in need, while in Canada, a federal court ruling ended the monopoly a federal contractor has on supplying cannabis to patients, opening up possibilities for dispensaries and collective production of medicine. Our international counterparts may be surging ahead in their paths to provide safe access for patients who benefit from medical cannabis, but here in the US, it's sometimes hard to move to the conversation about access when our government barely budges on research issues. The DEA continues to uphold a monopoly on the production of cannabis for research, even though it's own administrative law judge recommended ending this monopoly by granting a license to Professor Lyle Craker to grow research material. While whole plant medical cannabis is being stonewalled though, GW Pharmaceuticals is moving rapidly through Phase III trials in the US for Sativex, a cannabis-based tincture. GW's chairman, Dr. Geoffrey Guy, had this to say about the progress of Sativex:
"2008 promises to be an equally eventful year for GW, with the results of a number of key Sativex Phase III trials in Europe and the US due to be reported. The momentum behind Sativex and the wider field of cannabinoid medicines, as highlighted today by the promising results of our THCV metabolic research programme, continues to grow..."It's good to know that GW recognizes the potential for a wider field of cannabis medicine, but until the monopoly on production of cannabis for research is ended, it will be difficult for researchers to push this field forward in the United States. Until then, at least patients in Israel are happy: "One cancer patient said the ministry's decision to offer the drug through the clinic was "a blessing," saying it prevents suffering patients from being driven to buy the drug illegally."
"Resolved by the Senate and the Assembly of the State of California, jointly, That the Legislature respectfully memorializes the Congress and President of the United States to enact legislation to require the Drug Enforcement Agency and all other federal agencies and departments to respect the compassionate use laws of states, including returning any assets seized from medical marijuana dispensaries and collectives to the states in which they are located…" Senator Migden's actions follow several recent statements from other California elected officials. Senator Migden joins Los Angeles City Council Member Dennis Zine, Orange County Supervisor Chris Norby, Oakland Mayor Ron Dellums, and others in opposing the DEA actions. ASA and an ad-hoc coalition of reform organizations and activists have been reaching out to elected officials, calling on them to stand up for patients and providers. While Senator Migden's resolution is a significant win for the medical cannabis community, we must continue to urge our elected officials to stand up for patients and providers and call for an end to DEA raids in California.
To better protect the rights and interests of landlords, ASA has created a set of answers to Frequently Asked Questions, which can be downloaded here. To find out how you can get involved in the campaign to end DEA raids in California, contact Sonnet@AmericansforSafeAccess.org or your local California ASA chapter and/or affiliate. Chapter and contact information for your local ASA chapter can be found at: www.AmericansforSafeAccess.org/CaliforniaContacts
San Luis Obispo County Approves the Opening of the First Dispensing Collective This week, the San Luis Obispo County Planning Commission voted to approve the permit for a dispensing collective in Templeton. This approval comes after 6 months of debate. With a narrow 3-2 victory, the collective will be the first dispensary in San Luis Obispo County. This is a great victory for the hundreds of patients living in the region who have so far been denied safe access. With the permit approval, the dispensing collective can open in 30 days, pending no appeal from the opposition. Read more about the new collective on KSBY and SanLuisObispo.com
Mendocino Supervisors Vote to Limit Patients' Access and Revisit Measure G This week, the Mendocino County Board of Supervisors voted to restrict patients' cultivation limits to only 25 plants per land parcel. This decision means patient cultivation collectives and gardens are limited to only 25 plants, regardless of the number of registered medical cannabis patients living on or co-owning the parcel of land. This decision has the potential to unduly limit the number of plants patients have the right to cultivate dictated by California state law. Following the vote, the board of supervisors also voted to revisit the 2000 initiative Measure G. The measure decriminalized personal use of cannabis, with the intent to create safer access for medical cannabis patients. Measure G also allowed patients to cultivate up to 25 plants for personal use. The board's decision to put an initiative up for voters to revisit Measure G this June could have a significant impact on patients’ access. If Mendocino voters vote in favor of an initiative which opposes Measure G, this could be a blow to patients' rights by limiting patients' cultivation. Activists in Mendocino County, including Mendocino ASA are springing in to action as a result of the Board of Supervisors’ recent votes. To find out what you can do in Mendocino County, contact MendoBruce@yahoo.com Read more about the Board of Supervisors' votes in the Ukiah Daily Journal.
El Dorado County Denies Dispensing Collective Permit El Dorado County Board of Supervisors voted to not renew the business permit for the medical cannabis collective, Medical Marijuana Caregivers Association of El Dorado County. The board's decision will have a grave impact on safe access for patients in El Dorado County. The collective, located in Cameron Park, applied for a business license and in 2004. Following license approval by the county, the collective opened its doors to patients in 2005. The decision to deny the license and shut down access for patients cited the disharmony of the federal and state medical marijuana laws. In response to the Board's decision, the collective's operator, Matt Vaughn, has decided to sue the county for violating California state law and the Compassionate Use Act. ASA will keep you updated on the lawsuit and access in El Dorado County as news comes in. To read more about El Dorado County and the Medical Marijuana Caregivers Association of El Dorado County, go to: http://www.sacbee.com/101/story/622253.html
- Winning a legal victory that forces law enforcement to return medical marijuana to valid California patients
- Co-sponsoring the largest HIV/AIDS lobby day in DC
- Launching a grassroots campaign to pressure Gov. Schwarzenegger to stand up for patients' rights
- Protecting state laws by defeating the Coburn Amendment
- And much, much more...
Thanks to Alex at Drug Law Blog for including some of ASA's accomplishments in his top 10 drug law stories of 2007. Here's how we ranked:
8. ASA Sues the Feds for Putting Out Pseudo-Scientific Gobbledygook.
One of the intriguing things about law is the way formalized and seemingly very "square" tactics can sometimes accomplish surprisingly progressive goals. This year, Americans for Safe Access brought a lawsuit against the Department of Health and Human Services and the FDA based on a law called the Data Quality Act. The basic argument is that under the DQA, these federal agencies have to rely on accurate science in setting their policies, and that their position on medical marijuana manifestly fails to do that. This suit is still working its way through the courts, so we'll see what comes of it....
4. Medical Marijuana: The Feds Push, and California Pushes Back
... In November, the Fourth District Court of Appeal decided City of Garden Grove v. Superior Court, a case that was all about whether an individual should be able to get back medical marijuana that was seized by police if the marijuana was legally possessed under California law. We also saw the oral argument in the California Supreme Court in the employment law case of Ross v. RagingWire, which was about whether an employee could be fired for using physician-approved medical marijuana. Though it's tough to know how that one will ultimately come out, at least some of the comments from the justices suggested that they were sympathetic to the state's position on medical marijuana. [Both of these cases were argued by ASA Chief Counsel, Joe Elford.]
Check out the rest of his top 10 to see how we matched up.
Oakland Mayor Dellums Speaks Out for Safe Access On December 20th, Oakland Mayor Ron Dellums came out strongly in support of medical cannabis patients and dispensaries by issuing a statement and sending a letter to House Judiciary Chair John Conyers (D-MI). Dellums also stated his support for Representative Conyers' decision to hold hearings scrutinizing the latest DEA tactics in California of sending threatening letters to landlords and raiding dispensaries that are in compliance with local and state law. In Dellums' letter to Representative Conyers, he "urge[s] the House Judiciary Committee to expeditiously hold hearings and examine this very important issue." Mayor Dellums' public statement and letter were a result of a coalition of activists reaching out to the mayor, including ASA, local attorney James Anthony, the Drug Policy Alliance, CA NORML, and the Marijuana Policy Project. Just under a month ago, Bay Area landlords who rented to collectives received letters from the DEA threatening to seize their assets if they did not evict the medical cannabis providers. ASA and the coalition of advocates sprung into action, reaching out immediately to local elected officials, calling on them to stand up for patients and providers. Mayor Dellums' recent public support joins a handful of other elected officials in the Bay Area, including Senator Carol Migden, Assemblyman Mark Leno, and the Oakland City Council who have come out publicly against the federal government's attack on medical marijuana. We are continuing to rally support from local officials and the community. San Francisco Mayor Gavin Newsom and Berkeley Mayor Tom Bates have yet to release a statement supporting medical cannabis patients and providers and condemning the DEA's attacks. Read Mayor Dellums' letter to Representative Conyers at: http://www.americansforsafeaccess.org/downloads/Dellums_Letter_to_Conyers.pdf Read Mayor Dellums' statement at: www.AmericansforSafeAccess.org/downloads/Dellums_Statement.pdf
To find out ways to get involved and ensure safe access in San Francisco please contact Alex Franco at: AAAFranco@yahoo.com To find out ways to get involved in the East Bay please contact Sonnet@AmericansforSafeAccess.org
Court Appeals Verdict: Patient's Conviction is Reversed The Fourth Appellate District Court issued another very positive published decision in People v. Chakos last week. The two concurring judges, Aronson and Fybel, involved in the unanimous opinion were the same two concurring judges in the Garden Grove (Kha) case.
The court found that the conviction for possession with the intent to sell of defendant Chakos should be reversed because the court improperly admitted a cop to testify as an expert about marijuana distribution. They found him to be no more an expert than the average layperson because he did not understand the unique practices and difficulties faced by medical marijuana patients. Although the defendant possessed approximately six ounces of marijuana, had a digital scale, and plastic baggies, the court found that this did not suggest non-medical use. Specifically, after noting that a patient is legally entitled to possess eight ounces of marijuana under California law, the court stated:
"One might posit, then, that individuals who may lawfully possess marijuana under state law for medicinal purposes will have patterns of purchase and holding that will reflect the practical difficulties in obtaining the drug. Those practical difficulties could also explain the gram scale -- anyone with the lawful right to possess marijuana will need to take precautions not to insure that he or she does not get “ripped off” by a dealer, but that he or she does not possess more than the eight ounces contemplated by the Act. Practical difficulties of obtaining the drug also explain why a patient entitled to 13 possess it under state law might want to keep an extra supply on hand within the legal amount, since supplies would not be reliable."
They end the decision by referring to the "expert" cop:
"Now, are these speculations to be rejected because contradicted by the expert’s testimony on the record? No -- and that is the point: The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale. In other words, Cormier was unqualified to render an expert opinion in this case."
Read more about the case and the 4th Appellate Court's decision in the San Francisco Chronicle's story: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/21/BAJ0U37B7.DTL&tsp=1 Ukiah City Council Calls for Medicine Limits- Board of Supervisors to Consider Ballot Initiative The Ukiah City Council is expected to vote on a resolution today at 4:00pm, which calls on the Mendocino County Board of Supervisors to put an initiative on the ballot to limit the number of plants medical cannabis patients are allowed to cultivate and repeal the landmark legislation, Measure G. Measure G was voted on by the Mendocino County voters in 2000. The measure decriminalized personal use of cannabis, with the intent to create safer access for medical cannabis patients. Measure G also allowed patients to cultivate up to 25 plants for personal use.
The Council is calling for a repeal of Measure G and limiting the plant numbers to six per patient. The Board of Supervisors is scheduled to discuss putting the repeal of Measure G and limiting patients' cultivation on the ballot next Tuesday, January 8th.
Come out and support patients' access! Scroll down to "City and County Hearings" to find details about the Board of Supervisors meeting next Tuesday.
Read about Ukiah City Council's efforts to repeal of Measure G in the Press Democrat: http://www1.pressdemocrat.com/article/20071224/NEWS/712240316/1033/NEWS01 and in the Willits News: http://www.willitsnews.com//ci_7812598?IADID=Search-www.willitsnews.com-www.willitsnews.com
Orange County Begins Issuing Medical Cannabis ID Cards From Safe Access Now's Aaron Smith
On January 2nd, the Orange County Department of Public Health launched the statewide medical marijuana ID card program. Application for the cards are being taken on an appointment-only basis. Obtaining a card is voluntary for patients and caregivers but many find them to be very helpful in preventing false arrest by state and local law enforcement. In order to qualify for the ID card, you must be able to provide a copy of a valid doctor's recommendation for medical marijuana, proof of residency within Orange County and pay an application fee of $150 ($75 for MediCal recipients).
To make an appointment and apply for the card program, call the County Health Department at (714) 480-6717 during normal business hours.