Measure for Measure

A liberal medical marijuana initiative failed in Oregon, a conservative one passed in Montana. Our funders who art in Washington conclude that by minimizing our demands we maximize our chances of winning at the polls. But it’s not that simple.

The vote in Oregon was to liberalize the state’s existing Medical Marijuana Act, which had been created by ballot initiative in 1998. OMMA 2, as this year’s initiative was called by its organizers (it was “Measure 33” on the ballot), would have legalized dispensaries, lowered the cost of a registration card (from $150 to $20), increased the quantity of marijuana that patients and caregivers can grow/possess to 10 plants and one pound (6lbs for outdoor growers harvesting once a year), and allowed nurse practitioners and naturopaths to issue approvals. It lost by a 58-42 margin (while Kerry was carrying the state and Oregon Democrats were doing well in general). The key reason, according to Rick Bayer, MD, chief petitioner for the original OMMA, was that the law had been working satisfactorily for many patients. Some feared that liberalization might draw the feds and/or the criminal element. OMMA 1, says Bayer, “was basically patients and doctors versus cops.” OMMA 2 was “patients and doctors vs patients and cops.” The OMMA 2 campaign cost about $600,000 -$100,000 raised locally by the Voter Power organization, plus $500,000 for advertising from the Marijuana Policy Project.

In Montana, MPP strategists crafted and spent about $600,000 pushing an initiative that sets low allowable quantities (six plants, one ounce) and offers two-tiered protection. Medical users who get registration cards are protected from arrest or prosecution. Medical users without cards can be arrested and tried (but can raise a “medical-use” defense if their doctor is willing to testify for them in open court). Diagnoses of depression and other mood disorders do not qualify patients for registration cards. The measure passed by a 62-38 margin, and Bruce Mirken of the MPP called it “a huge win.”

Time will tell. The magnitude of the win depends on how many Montanans actually get to use cannabis as medicine under the law, and that depends on the willingness of doctors to issue approvals. Hundreds of thousands of Montanans would benefit if allowed cannabis as an alternative to the painkillers and anti-depressants they’re currently taking. If the number of physician-approved cannabis users is below100 a year from now, the win at the ballot in 2004 will not have been “huge.” Colorado passed a restrictive medical marijuana initiative four years ago and to date has enrolled fewer than 400 patients in the state program. Hawaii’s medical marijuana law -which MPP uses as a model in drafting new ones- has benefited 101 patients in three years.

Looking at the Oregon and Montana results together, we conclude that once a marijuana law is on the books, it’s hard to pass a more inclusive measure, ITAL so we better make sure that the first one serves the interests of all in need. END ITAL The advocates of a weak reform measure will say, “We’ll improve on this down the road.” But they may not be able to, even when the effort is sincere and unstinting (like MPP’s in Oregon). All too often the first step turns out to be the last.

North to Alaska, where Ballot Measure 2 would have removed all criminal and civil penalties for any adult growing, using or selling marijuana, with no medical rationale required! And the state would have created and supervised a distribution system. It got 43% of the vote.

In California, Proposition 66 would have modified the three strikes law so that mandatory 25 -to-life sentences would be imposed only on those whose third strike was a violent or serious felony. Backed by the Drug Policy Alliance, Prop 66 was well ahead in the polls as of Oct. 28, when Gov. Schwarzenegger, flanked by his predecessors (Wilson, Deukmajian, Gray Davis and Jerry Brown), warned the populace that thousands of sexual predators would be loosed into the streets if Prop 66 passed. It failed narrowly. The truth is, no prisoner would have been released without a thorough review of his situation. Now thousands of men and women whose third strike was a drug-law violation will remain behind bars.

Several Massachusetts districts passed symbolic measures calling for decriminalization (possession should be a civil violation like a traffic ticket) and legalizing medical use… Decrim and medical measures passed in Columbia, Missouri. By reducing possession from a state to a municipal offense, voters sought to protect University of Missouri students from losing their loans under the Higher Education Act. The County Prosecutor is questioning the legality of the measures In Ann Arbor, Michigan, the vote was 3-to-1 for revising the city charter to allow doctors to recommend and patients to grow and use marijuana for medical purposes. The city attorney is now advising the police chief to ignore the charter amendment because it conflicts with state law In Oakland, where the bustling “Oaksterdam” scene has been decimated by a city ordinance limiting the number of downtown dispensaries to three, activists spent $200,000 on symbolic Measure Z to legaliZe marijuana for adult use. It passed with 64 percent of the vote. The police are now directed to make marijuana busts their lowest priority and the city is directed to lobby for legalization on the state level and to develop a scheme for taxing and regulating sales. City Attorney John Russo says he hasn’t decided whether to challenge Measure Z in court or just ignore it.

Bush’s victory is seen as a disaster by anti-prohibitionists, and some of the more affluent are pricing residential property in British Columbia. They assume that DEA raids on growers and distributors were put on hold during the election so as not to cost Bush votes, and it’s matter of when, not if they resume. Optimists think the feds will hold off until Spring 2005, when the U.S. Supreme Court is due to rule on Raich v. Ashcroft. (In case you’re just joining us, the Ninth Circuit Court of Appeals ruled in October ’03 that the feds have no jurisdiction over Californians, Oregonians and others growing and/or using cannabis legally under state law, because interstate commerce isn’t affected by their activities. The Bush Administration appealed. The Supremes will hear oral arguments Nov. 29 and rule in late spring or early summer. If the ruling goes against Angel Raich and her co-plaintiff, Diane Monson, growers and dispensary operators who choose to remain in business will do so in a state of low-key terror. Prices will rise, patients will suffer for sure.

The reason the DEA might hold off, according to attorney Rob Raich (Angel’s husband), is that successful prosecution depends on the ultimate disposition of Angel’s case. Already numerous cases are stalled at the district-court level, or have been returned by the 9th Circuit to the district court pending the outcome of Raich. Defendants in limbo include Bryan Epis, Ed Rosenthal, WAMM, Steve McWilliams, Keith Alden, Lynn and Judy Osburn, and Robert “Duke” Schmidt.

The stakes in the Raich case would not have been so high if Bush had lost. Kerry had told an Oregon TV station in October that he would allow the states with medical marijuana laws to implement them. The media ignored this highly significant pledge. It got lost in what Dr. Bayer calls “this atmosphere of political cacophony.”


Consulting Dr. Bayer (Why Measure 33 Lost)

Rick Bayer, MD, a Portland internist, was the chief petitioner for the Oregon Medical Marijuana Act (OMMA) in 1998. He strongly supported OMMA 2, also known as Meaure 33, this year’s ballot initiative that would have expanded the existing program. This interview was conducted a day after the election.

C-Notes: In March you testified as an expert witness on behalf of Dr. Leveque. Would you comment on the revocation of his license?

Rick Bayer, MD: Phil Leveque didn’t hurt anybody. None of the complaints against him came from patients. I was hoping that my explanations would have reframed the issue away from reefer madness and towards a discussion of actual therapeutics. We obviously didn’t get all the way there.

The Board of Medical Examiners should regard what Phil Leveque is doing as an administrative function, like a doctor who conducts disability exams. It’s important, but it doesn’t require the same medical approach as admitting somebody into the intensive care unit. They are holding Phil to the level of care of an emergency medicine physician or an internal medicine physician. That’s unrealistic. Phil is saying that under the law “I only have to document that this person has a debilitating condition and then document that medical marijuana might help I’m performing the administrative task that’s in the law.” But the Board keeps moving the goalposts. I understand from colleagues that it’s the same in California -if the Board finds out that a doctor has been keeping records, then they insist that the records include something additional. If you did a physical, they’ll say it wasn’t complete. A physical can always be more complete. When I left medical school I could start a physical exam on a patient at eight o’clock and not finish until four or five in the afternoon. Once I got into practice I realized that if you did that, you couldn’t pay your employees. And I learned how to do pretty much a complete physical in 30 to 60 minutes. And If somebody had seen the urologist two months ago, I would see no reason to repeat that test. Nobody finds it pleasant. Or if somebody’d just had a pap smear by their gynecologist, why does she need another? But if the Board reviewed her chart, they could say ‘You didn’t do a complete physical.’

Phil was in a situation where the physical exams and the documentation were already done by the patient’s own physician. Patients could not get into see him unless they had recent records -“recent” meaning three to six months, I believe. And 99% of these people had used medical marijuana successfully, which puts it in a different category than if I’m seeing somebody who has 103 and may have a life-threatening illness and you don’t know what’s going on.

C-Notes:. Is there a special term for doctors whose role is administrative, like doctors who perform disability exams? Bayer: Some doctors are said to perform the “independent medical exam.” They see patients in connection with disability insurance evaluations, disputed workmen’s comp claims Workmen’s comp is an area where you’re expected to deal only with the work-related injury, so of course you don’t do a complete physical examination on the patient. If somebody comes in and they’ve hurt their shoulder you’re not going to check their prostate The doctors I knew through my practice who called themselves independent medical examiners usually didn’t have a hospital practice. They’d have an office practice. The bill might or not be paid by the patient. The doctor might be an agent of the insurance companies. Patients need to make sure that the doctor is not in cahoots with the employer. C-Notes: What was your role in the OMMA 2 campaign? Bayer: I wasn’t involved with the writing of it but I supported it 100 percent and did everything I could do get it to pass. I worked closely with the chief petititoner, John Sajo,and either wrote or edited most of the campaign statements.

C-Notes: Why did it fail? Bayer: It was a very ambitious ballot measure and it was difficult to get the message across to those who were content with the existing medical marijuana law. If you look at the Voters Pamphlet, the no-on-33 message begins with “A no vote will retain the current Oregon Medical Marijuana Act.” That’s a nice, seductive phrase. People will say “Okay, we can keep what we’ve got, it’s worked well.” What the campaign had to do is come out and say ‘The OMMA works really well for a certain group of patients, but for people that are too sick to grow or who can’t find a caregiver, or an honest caregiver, then it doesn’t work for them at all.” You have to be healthy enough to grow a garden. A lot of people who are sick enough to qualify are not healthy enough to grow a garden. If you can’t grow your own, have to go out and find a caregiver who will work for free, because the OMMA does not even allow you to reimburse your caregiver for labor, not to mention making a profit. So, what happened was, access to medicine under the OMMA was limited to people sick enough to qualify but well enough to grow a garden, or well enough connected to find a competent, honest caregiver. Pity the poor person who has just moved to Oregon, or who has never had anything to do with marijuana reform, and gets cancer and needs medicine right away. Those people are left behind. The whole purpose of OMMA 2 was to help people who’d been left behind by the OMMA. The irony is that the people you’re trying to help are the poorest and the sickest and the least likely to be able to donate large amounts of money to the campaign. This was a campaign done more on altruistic principles rather than political science. It was written mostly by John Sajo and Lee Berger [a Portland lawyer] and their motto was “leave no patient behind.” One part of Measure 33 would have required that the dispensaries give away 20% of their medical marijuana to indigent patients. That was attacked by the Oregon Medical Society heavily as some sort of socialist manipulation when all it was trying to do was recognize that poor people don’t have access to medicine. Then there was the requirement that there be a dispensary in every county, so that in counties that didn’t have them, the health department would set one up. Again, this is for the people left behind by the OMMA; but it was hard to explain to the voters. A ballot initiative written to help people who are left behind is a really tough sell. Single-payer health care is the prime example.

C-Notes: Leveque thinks the presidential race brought out the bible-beaters to vote against gay marriage and while they were at it they voted against medical marijuana.

Bayer: If the OMMA 2 had been on the ballot in a non-presidential year, it might have passed. In this atmosphere of political cacophony, our message got diluted, almost lost. In 1998, When the OMMA passed, there were about $125,000 worth of TV ads -less than $150,000- but the ads were everywhere. This time there were $500,000 worth of TV ads and I saw two of them in a month. The consultants say the ad prices were outrageous; and the radio spots were almost as high as the TV spots. C-Notes: Elections are highly profitable for the corporate media. Bayer: On the Measure 35 race the Oregon Medical Association spent something like $10 million trying to get caps on malpractice suits Another difference: in 1998, OMMA was the most controversial ballot measure and got a lot of free media as a result. OMMA 2 was maybe the fourth or fifth most controversial ballot measure, and got almost no free media.

C-Notes: Was there organized opposition?

Bayer: Law enforcement and the major newspapers were opposed. So was the Willamette Week. The opposition that hurt us the most was from Stormy Ray, one of the chief petitioners for the OMMA. During the OMMA. it was basically patients and doctors versus law enforcement. But this time, because of Stormy Ray’s defection, it became patients and doctors vs patients and cops. The state and local cops took full advantage; they told the media, “Well, Stormy Ray opposes this, one of the chief petitioners for the OMMA, that’s enough reason for every voter to oppose it.” C-Notes: Where was she coming from? Bayer: I don’t want to speculate on her motives, but the campaign made it clear that some people who were doing really, really well under OMMA 1 had no interest in working to change it. The OMMA 2 would have spread the wealth. There would have been dozens of dispensaries. You wouldn’t have had to be a wealthy, well-connected marijuana activist to get access to medicine, you just would have to go to the ATM machine before going to the dispensary. C-Notes: Is it true that the only Oregon doctor still specializing in seeing cannabis users is Dr. Dodge in Portland. Is it affecting the number of cards being applied for?

Bayer: There are a lot of doctors who will sign applications for patients whom they’ve known for years and who’ve tried everything else. And many family practice doctors have no problem signing marijuana applications -but they don’t want it widely known. They look at it like, “I would give you Vicodin for your pain but you prefer marijuana, that’s fine.” The clinics are set up so that the patients are all screened -it’s a totally different form of practice, as I realized when I was testifying before the Board.

I used to wonder if the clinics really were serving patients’ needs. Now that I’ve defended Phil, I’m convinced that they really were, 100 percent. I’ve talked to so many patients who’ve had difficulties with their regular physicians or with their employers because marijuana was documented in their medical chart and then that chart gets sent to an employer. It’s perfectly logical for a patient to say “I want to see Dr. Smith for all my internal medicine problems, but just to be safe I’ll go to the clinic and see Dr. Dodge to get my card, and not even tell Dr. Smith about it unless it’s necessary, that way Dr. Smith isn’t going to have anxiety about getting in trouble with the Board of Medical Examiners or he isn’t going to accidentally reveal something to my employer.” If you could talk Dr. Smith into keeping two separate charts, it would be different. Back in the days when we first hear of AIDS we were advised to protect patients against discrimination by keeping separate charts. Medical marijuana patients are discriminated against, too. Confidentiality -that’s why it’s logical to go see a separate doctor who does nothing but medical marijuana applications. Even if your doctor would sign it, there’s a risk of having that information in your chart. [Whereas] you know your employer isn’t going to get Dr. Dodge’s chart. This hit me when I was on the stand: Phil isn’t seeing primary care patients! The staff screens you and you can’t get in the door unless you’ve got recent records about your debilitating condition. That’s a totally different kind of practice. Concerns about confidentiality, 99 times out of 100, that’s why patients go to cannabis specialists. If the Board of Medical Examiners don’t like that, they need to help us reschedule marijuana so that doctors can prescribe it.

FRED GARDNER can be reached at


Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at