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Waiting for Raich

The Supreme Court’s ruling in Raich could come by the end of this month. Later this spring is more likely, says attorney Robert Raich. Technically, the Court will issue a “judgment” on the Ninth Circuit Court of Appeals’ ruling that prevented the feds from interfering with patient Angel Raich and those who grow her cannabis, and Diane Monson, who grows her own. The key section of the judgment will probably be one word -“affirmed” or “reversed.” The judgment could also affirm in part and reverse in part. The judgment will be accompanied by a written opinion explaining the reasoning behind it. Individual justices may issue concurring and dissenting opinions emphasizing aspects of the case they consider important.

Even a straightforward affirmation or reversal could be on any number of legal grounds. The Commerce Clause was the only issue the Ninth Circuit addressed, so the opinion is very likely to address it. But the Court could also base its ruling on grounds raised by Raich that the 9th Circuit did not address: necessity, federalism, fundamental rights and individual liberties, or a statutory interpretation of the Controlled Substances Act. All Raich needs in order to win is a majority agreeing on the result. For example, O’Connor and Ginzburg, who’ve had brushes with cancer, might decide to affirm on grounds of medical necessity (warding off a greater harm). They could be joined by three conservatives seeking to limit Congressional power under the Commerce Clause. Or by Stevens, Breyer and Souter agreeing with the federalism argument (states should be “laboratories of democracy”).

There could be a ruling favorable to Raich and Monson that does not reverse the restrictions that many California counties and cities have been imposing on dispensaries. Say the Court rules only on Commerce Clause grounds. A given city could then say, “We will allow individual patients to cultivate, like Diane, and individual caregivers to give their medicine away for free, like Angel’s John Does, but we still aren’t going to let collectives and cooperatives exist (even though they’re legal under state law).” It all depends on how the justices frame the opinion.

Some 30 cases are on hold pending the outcome of Raich. Ann Harrison summarizes them in the upcoming issue of O’Shaughnessy’s: Bryan Epis, Keith Alden, The Marin Alliance for Medical Marijuana, the Oakland CBC, WAMM, the Ukiah Cannabis Buyers Club, Ed Rosenthal, David Davidson, Cynthia Blake, Eddie Lepp, Marian Fry and Dale Schafer, Judy and Lynn Osburn, Anna and Gary Barrett, Stephanie Landa, Tom Kikuchi, Kevin Gage, “Duke” Schmidt, Ken Hayes, Rick Watts, Steve McWilliams, Steve Tuck, Michael Teague, Leroy Stubblefield, Jacek Mroz, Jessie Nieblas, Mario Pacetti… The basic crime in each of these cases: implementation of Prop 215.

The Raich ruling will also influence how cities and counties relate to dispensaries. Many jurisdictions have moved to ban cannabis clubs, limit the number allowed, or otherwise restrict their operations (1,000 feet from a school, no medicating on the premises, etc.). Even Oakland, which had pioneered legal distribution, limited the number of clubs to four in 2004, forcing many to move, close, or operate clandestinely.

Whether or not a negative ruling would trigger a wave of repression by the feds, it would heighten the terror alert for California growers, distributors, and even patients. Attorney Bill Panzer thinks the Court will avoid ruling on the constitutional issue. “They can find a way to go sideways. When the government is seeking to enforce criminal statutes there is a strong presumption that the statute is valid. They could say the 9th circuit did not give proper weight to the government’s position of enforcing a criminal statute, therefore the preliimnary injunction was premature. They can send it back with orders to dissolve the preliminary injunction but let the case continue.” It would be years before the Raich case made it back to the Supreme Court.

“They could also knock Angel out of the case, claiming she has no standing,” according to Panzer. Diane Monson and the John Does have standing as growers, he says, “but there is no basis to believe that Angel is under any danger of being arrested for simple possession.”

Panzer expects the media to sensationalize and distort the decision. “Anything other than an out-and-out win for our side will mean law enforcement, both state and federal, taking the attitude, ‘They struck down Prop 215,’ and there’ll be a backlash, just like there was after the OCBC ruling.” Panzer foresees local police and sheriffs arresting more medical marijuana producers and distributors and more people “having to go to court and deal with it.” He “would not be surprised if the DEA hit a couple of dispensaries.”

In the recent period of relative calm, Panzer points out, the feds have moved against Richard Marino’s dispensary in Roseville (using the forfeiture laws), and against a Southern California affiliate of Ukiah’s UMCC (using a forfeiture threat against the landlord). Panzer is mot concerned about how the Raich decision will affect the preliminary injunction won by WAMM. “Unless it’s a clear win for Raich, the Court says, ‘Dissolve the preliminary injunction.’ And they’ll have to dissolve it.” Panzer is worried that Mike and Valerie Corral stand to lose the land on which WAMM members grew cannabis… not to mention their freedom.

Role of Physician Assistants Questioned

Panzer bemoans the recent proliferation of “clinics” at which patients seeking approval to use cannabis are examined by a physician’s assistant. Panzer named “Suffering Patients” and “MediCann” as two clinics that employ PAs. He said he was alerted to the trend in late 2004 by a dispensary proprietor in Hayward who was seeing letters of approval on which the doctor’s signature had been rubber-stamped. “These pre-signed forms may not stand up in court,” Panzer warns. “The wording of Prop 215 specifies that ‘physicians’ must recommend or approve cannabis use by California patients. Expect judges to interpret it conservatively,” says Panzer.

Two days after Panzer expressed his misgiving, we saw a post from a group called overgrow.com. “Butte County DA Mike Ramsey has ordered MediCann Clinic in Chico to not open for business as usual on Wednesday (2/9) or he will come and shut them down. Ramsey states he does not recognize Physician Assistant generated medical cannabis recomendations in Butte County. The DA states MediCann must use MDs for recommendations to be ‘legal’ per Prop 215. This is direct violation of California medical law which states that PA’s can perform ‘any duties typically performed by an MD” to include surgery, as long as PA is properly trained and supervised.'”

The Overgrow post concludes, “Hope the DA in your County is focusing on murder, rape, armed robbery, corporate crime, etc., and not a handful of medical cannabis patients.”

Dale Gieringer of Cal NORML agrees with Panzer: “Cal NORML advises patients to insist on seeing a real MD, not a physician’s assistant. Our attorneys are of the opinion that PA approvals are likely not to be upheld by the courts.” .

A dam of litigation ready to burst. I worry about a wave of bad local ordinances up and down the state.

On 2/7 Calaveras County allowed Kim Cue to open a dispensary. Orange County Register article said two supervisors had relatives with conditions -AIDS and pancreatic cancer- for which marijuana is known to provide relief. It was a 3-2 ruling, against the vigorous opposition of the sheriff. It had the typical onerous ridiculous provisions -can’t be within 1,000 feet of a School, church, playground, etc.

The danger is that the Court will view this case as a “drug” case instead of a medical case, and they’ll carve out yet another exception to the Constitution for the drug war. How might they avoid ruling on the constitutional question. In our brief we explain how they could do it by a statutory-interpretation method. They could interpret the controlled substances act page 45 as an act of congress not broad enough to a phyusician who writes a valid order in the jurisdiction in which he practices to distribute of dispense is not unlawful, therefore the patient who has it How about an unfavorable way?

Can a caregiver argue that what mattered was not the John Does giving it away for free, but not making anything beyond expenses? Or an exorbitant profit? If that’s a matter that a majority of the justices weigh in on.

The 9th Circuit had reversed a U.S. district court’s refusal to grant an injunction sought by Raich-Monson calling off the feds. It remanded the case back to the district court to enter the injunction. Pebbles Trippet of the Medical Marijuana Patients Union calls it “the most significant case dealing with medical freedom to face the court since Roe v Wade” (which affirmed the gatekeeper role of doctors in medical decisions, as well as women’s reproductive rights).

Raich set federal precedent for an individual patient’s right to grow marijuana for medical purposes. It led to Santa Cruz v Ashcroft, which went further, setting precedent for medical cannabis collectives, i.e., patients engaged in collective cultivation of marijuana for their personal medical use under state law. Santa Cruz v Ashcroft still stands as 9th Circuit precedent for collectives but undoubtedly will be challenged if Raich is reversed.

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

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