Pubdate: Sun, 12 Dec 2004
Source: Santa Cruz Sentinel (CA)
Copyright: 2004 Santa Cruz Sentinel
Author: Ben Rice
Note: Ben Rice is a Santa Cruz attorney
Cited: Raich v. Ashcroft
Cited: Wo/Men's Alliance for Medical Marijuana
Cited: Santa Cruz v. Ashcroft
Bookmark: (WAMM)
Bookmark: (Santa Cruz v. Ashcroft)
Bookmark: (Valerie Corral)
Bookmark: (Angel Raich)


This past week, I traveled to Washington, D.C., to attend the Supreme Court 
hearing in which the legal fate of WAMM, the 8-year-old Santa Cruz medical 
marijuana cooperative, will be decided.

The case argued was Raich v. Ashcroft, a medical-marijuana case out of 
Oakland. Like WAMM, Angel Raich had successfully argued in federal court in 
San Francisco that she was entitled to an injunction against the attorney 
general of the United States, John Ashcroft, and his Drug Enforcement 
Agency. The injunction in both cases prohibited the federal government from 
interfering with the patient's cultivation, possession and use of medical 
marijuana. While WAMM's case was the first brought at the trial-court 
level, the Raich case was the first ruled on and thus was the case that 
went to the Supreme Court on appeal, leaving WAMM waiting for the court's 
ruling. If Raich wins, WAMM wins. Should Raich lose?

Having been a lawyer for WAMM for many years, I knew how important the 
Supreme Court argument on Nov. 29 was going to be for WAMM's founders, 
Valerie and Michael Corral, and for the nearly 200 patients in the cooperative.

A little background:

On Sept. 5, 2002, I was visiting a client in the county jail when the 
sergeant in charge came, found me and explained that a raid by federal 
agents was occurring at the WAMM garden and, "I had better get out there 
because the WAMM members were blockading the federal agents onto the land 
and the agents were calling the sheriff's office for backup."

WAMM had been operating in the open under California's Compassionate Use 
Act of 1996 and had established itself with local government and law 
enforcement as a legitimate medical-marijuana organization. On the day of 
the DEA raid, the Santa Cruz Sheriff's Office hadn't been told by the DEA 
that the raid was going to occur, so they were not particularly happy at 
the prospect of "rescuing" the heavily armed agents from the outraged 
patients who were refusing to move out of the agents' way as they tried to 
leave the garden with a year's supply of medicine. The standoff was 
concluded peacefully only after Val, who with Michael was arrested and in 
DEA custody, used a DEA cell phone and spoke to members and asked them to move.

Later that day, Val and Michael were released from custody and have since 
lived with the knowledge they could face prosecution for the next five (or 
less) years. Conviction for these two could lead to a decades-long prison 
term under the federal sentencing guidelines.

For the past 10 months since its success in federal court, WAMM has been 
enjoying its unique position as the only legal medical-marijuana 
cooperative and garden in the country. The injunction has allowed the sick 
and dying WAMM members to grow, process and use medical marijuana without 
fear of interference. The success has been bittersweet as 22 members have 
died since the raid and everyone has known that the day would come when 
this very conservative Supreme Court would have the final say. And yet, 
maybe we can win, we told ourselves.

The legal argument made in the Raich and WAMM cases was that "state rights" 
barred the application of the federal Controlled Substances Act to 
medical-marijuana patients who were using this medicine at the 
recommendation of their doctors under California law. The federal 
government argued that it can create and enforce certain laws because the 
conduct they seek to regulate has an impact on other states and thus 
permits federal regulation under the Interstate Commerce clause power 
Congress has under the Constitution.

Ironically, our hope is that arch conservative justices like Chief Justice 
Rehnquist and Clarence Thomas might support California and the other nine 
states that have medical-marijuana laws under this states' rights theory.

Decisions by the Supreme Court since the WAMM raid invalidating federal 
laws dealing with gun possession near schools and with violence against 
women had given us more reason to hope. The Supreme Court has also left 
intact a lower federal court's decision that stopped federal investigations 
into doctors who have been recommending marijuana to their patients as 
violating the doctors' and patients' First Amendment rights.

Given the importance of the ruling, it was decided I should attend the 
Raich argument. I was admitted to the Supreme Court Bar and headed to 

The morning the Raich case was to be argued dawned cold and nearly clear. 
The court was to hear the case at 10 a.m. but, even with a reserved seat, I 
wanted to get to the court early to try and get the best seat possible as a 
large number of attorney spectators were expected. I walked 30 minutes from 
my hotel to the Supreme Court building and watched the light gradually 
illuminate our nation's centers of power. Arriving at 7 a.m., I found that 
I was the second attorney in line, but a group of at least 50 citizen 
spectators had been in their line since as early as 3 a.m.

When the justices took the bench, the courtroom was packed and felt 
charged. Justice Stevens presided and noted that the very ill Chief Justice 
Rehnquist would vote after reading all briefs and transcripts from the oral 
argument. (Justice Rehnquist is the third justice to suffer cancer. Might 
that help, many of us have wondered?)

Each side was given 30 minutes to present its case before the court. The 
government's attorney began his argument and was immediately interrupted, 
first by Justice Stevens and then by Justice O'Connor, who questioned him 
skeptically concerning his contention that the medical-marijuana patient's 
conduct in this case constituted significant economic activity that would 
impact other states, thus allowing federal intervention. When Justice 
Ginsburg seemed skeptical, too, I began to think a victory was possible.

But then it was Boston University Law Professor Randy Barnett's turn to 
argue for Raich, and the beating began. Justices Breyer, Kennedy, Souter 
and Scalia took turns attacking, and the day suddenly seemed darker and 
heavier to me. The final insult was Justice Scalia's snide reference to 
WAMM as "that 200-person commune" out there in California -- invoking the 
stereotypical picture of '60s-type hippies laying around "smoking dope."

There is some reason to cling to hope here. If Justices Stevens, O'Connor 
and Ginsburg were revealing their inclinations and if the Chief Justice 
agrees with the states' rights claim and Justice Thomas (who never speaks 
at these hearings), who is also a "states' rights" champion, agree, then 
Raich, WAMM and the many thousands of people who are benefiting from 
medical marijuana will win.

The Raich case will be decided by the court sometime in the spring or early 
summer of next year. Should it be lost, it is important to remember that 
the decision will not overturn California's Compassionate Use Act.

Individual patients will not be at risk from California authorities and 
will most likely never need to fear arrest by federal authorities who, one 
hopes, are more preoccupied with hunting down terrorists. Nor will doctors 
need to worry about being investigated. But people with the best of 
motivations and intentions, like Val and Mike Corral, will indeed be at 
risk -- a scenario too awful to contemplate. 
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