States' Rights Tested in Medical Marijuana Court Battles By Steve Brown CNSNews.com Staff Writer July 14, 2003 (CNSNews.com) - The independence of states is once again being challenged by the federal government - this time over the use of medical marijuana. On July 7, the Justice Department asked the U.S. Supreme Court to overturn an October 2002 ruling by the Ninth U.S. Circuit Court of Appeals, which sided with doctors who recommend marijuana to severely ill patients. The Ninth Circuit has jurisdiction over nine western states. The San Jose-based U.S. District Court for the Northern District of California was also the site July 7 of arguments presented by attorneys for the city and county of Santa Cruz, who alleged that federal agents illegally raided the Wom/Men's Alliance for Medical Marijuana (WAMM) farm in September of 2002. That raid netted about 165 plants and resulted in the arrest of Valerie and Michael Corral, owners of the farm. Illegal under federal law, California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have all enacted legislation allowing the cultivation and distribution of marijuana to patients when recommended by a doctor. Attorneys arguing for the states, physicians and medical marijuana advocates in both cases say the implications for federalism are far reaching. In the first case, Walters v. Conent , which may end up in the U.S. Supreme Court, Graham Boyd, director of the American Civil Liberties Union Drug Policy Litigation Project and co-counsel for the plaintiffs, told CNSNews.com that the First Amendment right to free speech, congressional authority over interstate commerce and the states' ability to regulate the practice of medicine are all at issue. "The basic issue is that the practice of medicine is something that states regulate, and that has always been true for as long as medicine has been regulated in this country," Boyd said. "What's unusual about this case is that the federal government is saying the advice doctors give to patients ... is a federal concern, and that's never really been a federal claim before." Calling the move "problematic," Boyd explained that the federal government was trying to use its ability to control drug distribution as a way of controlling the entire practice of medicine. "That could have all kinds of implications," Boyd said. According to press reports, the Justice Department contends that doctor recommendations for marijuana under California's law are the same thing as a doctor prescribing illegal drugs, for which the federal government may prosecute without violating the free speech rights of the physicians. Department lawyers were quoted as saying as long as doctors "discuss," but do not "recommend" marijuana, clarify that it is illegal under federal law and that the federal government considers it dangerous and medically useless, they would not be penalized. Writing for the majority in the 3-0 Ninth Circuit appellate decision, Chief Judge Mary Schroeder said, "Our decision is consistent with principles of federalism that have left states as the primary regulators of professional conduct. "We must 'show respect for the sovereign states that comprise our federal union,'" Schroeder asserted. "That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country." In his concurring opinion, Judge Alex Kozinski conceded that federal law would "normally" prevail when it conflicts with state law. However, in this case, the judge stated, the federal government policy "runs afoul" of its powers to regulate interstate commerce. "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," Kozinski wrote. Boyd said he and his co-counsels have until August 6 to weigh in on the Justice Department's request that the U.S. Supreme Court take up the case, but have not decided whether to do so. In the second case, County of Santa Cruz v. Ashcroft , U.S. District Judge Jeremy Fogel in December denied a request to return the plants seized in the federal raid of the WAMM operation. However, according to press reports, during the July 7 arguments, Fogel said he was "moved" by accounts of the suffering of 15 patients who subsequently died after the raid deprived them of the marijuana. "Frankly, I'm looking for a hook that's very different from the one I've looked at and been forced to reject," Fogel told plaintiffs during the hearing. "I would need something new and different other than someone saying, 'Judge, you got it wrong last time.'" Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance and co-counsel for the Santa Cruz plaintiffs told CNSNews.com his clients had two main claims. The first, he said, involves the constitutional right to not have to suffer unnecessarily under the 14th Amendment's due process clause. The second claim, according to Abrahamson, is that the federal government lacked the authority and police power under the interstate commerce clause to conduct the raid on the WAMM facility. "There's no commerce, much less interstate commerce, when these patients were growing their marijuana and using it for their own medical purpose," Abrahamson said. "There was no sale of marijuana, there was no transfer of marijuana, there was no taking of marijuana by non-patients across state lines ... and so the predicate for federal government action is lacking altogether ... so it should not have the power to take such actions in the future." Abrahamson added that both the city and county of Santa Cruz enacted regulations protecting WAMM and its activities, and even deputized the owners to run the facility and shield them from any drug prosecution. Soon after the federal raid, city officials protested the action and allowed a medical marijuana giveaway in the city hall courtyard. Mark Quinlivan, senior counsel for the Justice Department, was quoted in press reports during opening arguments saying the WAMM arguments were irrelevant and that any type of drug trade was an interstate issue. Only the U.S. Food and Drug Administration has the power to sanction illegal drug experiments, Quinlivan reportedly stressed. "In the Conent case, (the federal government) really wants to overturn the voters' decisions ... so that's a real problem in terms of federalism" Abrahamson said. "In the WAMM case, it's very much trying to undermine the public health goals of the city and county of Santa Cruz and the state of California, not to mention the individual rights of the patients." Link to article: http://www.cnsnews.com/ViewCulture.asp?Page=\Culture\archive\200307\CUL20030714a.html