Pubdate: Sun, 03 Oct 2004
Source: Ann Arbor News (MI)
Copyright: 2004 The Ann Arbor News
Author: Tracy Davis, News Staff Reporter
Cited: the Ann Arbor initiative
Cited: Wo/Men's Alliance for Medical Marijuana
Cited: Marijuana Policy Project
Bookmark: (Cannabis - Medicinal)


Both Sides of Medical-Marijuana Ballot Proposal Agree Passage Wouldn't 
Settle Legal Issues

A wheelchair-using multiple sclerosis patient and her driver are pulled 
over for speeding in Ann Arbor. When officers approach, they see two 
marijuana cigarettes on the console between the front seats.

But the patient shows the officers a note from her doctor, which recommends 
that she use marijuana to ease her symptoms.

If Ann Arbor voters pass a measure to decriminalize medical use of 
marijuana on Nov. 2, will this hypothetical patient still be arrested? 						

Some law enforcement officials and legal experts say absolutely. The drug 
is illegal under federal and state law, and local officials say Ann Arbor 
officers can enforce state law, even if local laws change.

But other observers, legal experts and proponents of the measure say a new 
law will safeguard those patients, since most marijuana-related arrests are 
made by state and local officials.

The two sides agree Ann Arbor's law likely would wind up in court, as have 
many cases in other parts of the country.

As in other states, many agree that even if a local law is passed, medical 
marijuana will remain an underground movement as officials, patients, 
doctors and growers fear arrest and prosecution for openly using, endorsing 
or recommending its use.

Patients, growers and doctors stay as anonymous as possible. As a matter of 
policy, municipal marijuana programs won't keep patient records, or 
anything that could be subpoenaed. But even then, jurisdictional issues are 
unclear. Police in towns with new marijuana laws say they "probably" won't 
arrest patients; Ann Arbor is not revealing how it will handle the issue.

And then there's the issue of how to fill a "prescription;" where will Ann 
Arbor patients get their medical marijuana?

"Probably the same old place they've always gotten it," said Timothy Beck 
of the Detroit Coalition for Compassionate Care, which initiated Detroit's 
successful marijuana referendum.

The California Experience

In 1996, California voters became the first to pass a medical marijuana law 
that removed criminal penalties for qualifying patients who grew, possessed 
or used marijuana. The law gave cities such as Santa Cruz and San 
Francisco, which previously passed municipal laws, the backing of state law.

In San Francisco, citizens can apply for a voluntary identification card by 
submitting a physician recommendation letter to the public health 
department. The department charges $25 and provides forms for the notes.

Patients can get their marijuana at buyer's clubs. Some of the clubs have 
Web sites; many are known about through word of mouth. San Francisco has 
18, according to officials. Oakland and Berkeley have four and two, 

There are physicians willing to recommend marijuana use for their patients, 
although cities do not keep any records on them or the patients themselves, 
said Dr. Joshua Bamberger. Even so, people are still arrested from time to 
time. And although state and local agents are mostly no longer a threat, 
federal agents can, and do, make arrests.

In Santa Cruz, a grower's collective called the Wo/Men's Alliance for 
Medical Marijuana grows and distributes marijuana to more than 250 sick 

The group started after founder and director Valerie Corral was arrested in 
1992 for growing five marijuana plants. Corral was in a car crash in the 
early 1970s that caused a brain injury, leaving her suffering from as many 
as five grand mal seizures a day. She discovered using marijuana kept the 
seizures at bay.

She challenged her arrest on the grounds of medical necessity and won. That 
same year, 77 percent of Santa Cruz voters passed its medical marijuana law.

Corral was arrested again in 1993, but the district attorney threw out the 
case and said the prosecutor's office had no intention of pursuing it in 
liberal Santa Cruz, where an unsympathetic jury would be hard to find.

When California's state law passed, it legitimized the city's laws, 
recalled Corral. Law enforcement stayed largely off the backs of medical 
marijuana users and of WAMM, whose membership was growing. Corral and her 
husband, Mike Corral, were officially recognized by the city in 2000 as 
medical marijuana providers.

Santa Cruz Sheriff Mark Tracy was elected in 1994. His administration has 
been more sympathetic than previous ones, Corral noted, and that makes a 
big difference.

"If it's a clear case where they're using it for medical marijuana, we just 
walk away," Tracy said.

But he adds there are a couple of cases every year where people are 
obviously not using marijuana for medical reasons.

San Francisco has roughly 7,000 people in its program, said Dr. Joshua 
Bamberger, San Francisco's medical director of housing and urban health.

Not all physicians will recommend it, he said. Bamberger said he has had 
patients ask him for letters for everything from pain to shortness of 
breath to anxiety. He has given a recommendation in only two cases.

It's not clear what Ann Arbor-area physicians will do. A survey of 522 San 
Diego physicians showed about 25 percent were willing to recommend it.

The Washtenaw County Medical Society has not taken a position on the issue, 
said president-elect Dr. Stan Reedy.

A key difference in the momentum of medical marijuana movements, many 
experts and observers agree, is a having a state law. Whether it gives 
enough of a literal or symbolic change in law, it has allowed groups like 
WAMM to run their distribution programs with less fear, Corral said.

No Arrests With a Doctor's Note?

According to the Marijuana Policy Project, a Washington, D.C.-based 
legalization advocacy group, state and local police make 99 percent of 
marijuana arrests.

Take local police out of the equation and that goes a long way toward 
protecting people who use marijuana for multiple sclerosis, cancer, 
AIDS-related wasting, and a host of other diseases, reasons spokesman Bruce 

"The question is how local authorities will choose to apply it," he said. 
'It's not going to stop state police or the state attorney general from 
going after people if they want to. But they tend to focus on major 
traffickers. So it probably does provide some substantial protections."

"The obvious effect is no longer will the authorities that have the most 
direct contact with citizens in Ann Arbor be able to arrest them," said 
Randy Barnett, a constitutional law professor at Boston University. "People 
will still be subject to federal prosecution. But (federal authorities) 
have other priorities and other demands on their resources."

On the other hand, Mirken notes, "Even in California, where the law is 
absolutely unambiguous, there have been some cases where cops and local 
prosecutors have chosen to ignore the law."

But the Ann Arbor law won't apply to state police. Detective Lt. Garth 
Burnside of the Michigan State Police said the measure won't affect his 

"If someone hands me a note from a doctor saying they can have marijuana, 
they're still getting arrested," he said. Of 503 drug charges in Livingston 
and Washtenaw last year, 150 were marijuana charges, he said.

And marijuana remains illegal under federal law.

"...This initiative would not impact our efforts," said U.S. Drug 
Enforcement Agency spokesman David Jacobson.

"Medical marijuana initiatives have unfortunately become a Trojan horse for 
marijuana-legalizing groups exploiting the health situations of seriously 
ill people to promote their own agenda. Marijuana is still illegal."

In a California case, a federal judge ruled in favor of two women whose 
medical marijuana plants were seized by the U.S. Drug Enforcement Agency. 
The women sued the federal government on the grounds that the Controlled 
Substances Act, which authorizes the feds to enforce drug laws, was 
unconstitutional as applied to marijuana.

An appeals court ruled in favor of the women, citing an unconstitutional 
exercise of the commerce clause. The federal government has appealed to the 
Supreme Court, and the case is expected to be heard in December or January.

The outcome of that case could have repercussions on city initiatives like 
the one Ann Arbor voters will decide on.

Barnett, the Boston University law professor, is representing the two women 
before the high court this winter. He said if the court rules on the basis 
of the commerce clause, that would eliminate federal prosecution even in 
states that have no medical marijuana law. That greatly increases the power 
of municipalities, because they control their police departments, he said.

But Temple University law professor Mark Rahdert, an expert on 
constitutional law and federal jurisdiction, disagrees.

"It think that's a little similar to the situation we had last spring in 
San Francisco where the registrar of marriage licenses was not enforcing 
state law regarding heterosexual marriage," he said. "I don't think it's 
generally within the province of a local entity to decide which laws it 
will or will not enforce. If there's a state law that prohibits the medical 
use of marijuana, it's incumbent on city authorities to (enforce it). They 
can be directed to do so by proper authority from the state, and a local 
initiative simply can't override that."

City attorney Stephen Postema won't comment on what directions he intends 
to give Ann Arbor Police until after the election, he said.

The Michigan attorney general's office has already sent a letter to Ann 
Arbor officials warning them the new amendment is in conflict with state law.

Police Chief Dan Oates is concerned about the additional burden his 
officers will have, in proving someone is using marijuana for medical 
reasons. "We'll have to prove that it's not," he said.

Beyond that, he said he is waiting for legal guidance from the city 
attorney and administration.

"Law enforcement in California has been left in a situation where it 
becomes very complicated," said Tracy, the Santa Cruz sheriff. "The best 
way to put it is, this issue is still evolving and with each change ... 
we've tried to get good legal advice and move forward within the parameters 
of the law. But I will say it has been very difficult."

Keeping the Issue Alive

If the measure does pass, city officials say anyone could sue to have the 
amendment overturned.

Even if it stands, a 1977 court case may have set legal precedent for city 
law enforcement to refer marijuana violations to other jurisdictions.

In that case, the court ruled that local law enforcement could not be 
prevented from enforcing state laws by local ordinance or charter 
amendment. It also said they could not be prevented from referring a case 
for prosecution.

But proponents say the day Michigan voters will face a question about 
medical marijuana is not far off. Plans are for a ballot question in the 
2006 election.

Beck, who led the effort for Detroit's medical marijuana ordinance 
amendment that passed in August, said there are already state lawmakers 
planning to introduce a medical marijuana bill.

He acknowledges it likely doesn't stand a chance in Michigan's House and 
Senate. But he predicted it will legitimize future efforts for a state 

Proponents hope it will be more than symbolic. "What we really believe . is 
they are not going to mess with people who are truly sick," Beck said. 
"What we have done, is we have protected really sick people."

Many people will be watching the issue closely.

"It will be interesting to see how this plays out," said Ann Arbor criminal 
defense attorney John Shea.

"It's partially a way to get a workable law on the books. But it's 
partially also a way for them to keep the point alive. They want the 
debate, they want people to be thinking about this." 
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