Pubdate: Tue, 19 Jul 2005
Source: San Francisco Chronicle (CA)
Copyright: 2005 Hearst Communications Inc.
Author: Sabin Russell, Chronicle Medical Writer
Bookmark: (Cannabis - Medicinal)
Cited: Gonzales v. Raich ( )
Cited: Wo/Men's Alliance for Medical Marijuana ( )
Cited: American Civil Liberties Union ( )


Despite Top Court Ruling, Lockyer Concludes Such Certification 
Doesn't Violate Federal Law

State health officials Monday reinstated a program to issue identity 
cards to patients who have been prescribed medical marijuana, after 
receiving advice from the state attorney general that they could do 
so without violating federal law.

The quick decision to restart the program comes after Attorney 
General Bill Lockyer's office also warned that failure to implement 
the program mandated by a state law would violate the state Constitution.

The nascent program was put on hold July 8 after having issued only 
123 ID cards, which were meant to help qualified patients prove to 
law enforcement personnel that marijuana found in their possession 
was for medical purposes.

State Health Director Sandra Shewry said at the time that the program 
was being suspended, pending a review by Lockyer, in the wake of the 
June 6 U.S. Supreme Court decision that permitted federal prosecution 
of marijuana users even in states such as California that allow its 
use for medical purposes.

On Friday, Lockyer deputy Jonathan Renner sent the Department of 
Health Services a letter advising it to suspend its suspension and 
issue the ID cards.

"We believe the federal government cannot enforce federal criminal 
laws against state officials who merely implement valid state law," 
Renner wrote in an eight-page letter to Shewry's legal office.

Among the legal arguments weighing against federal prosecution of the 
state for its ID card program was a 3-year-old decision by the Ninth 
U.S. Circuit Court of Appeals in San Francisco, holding that doctors 
could not be prosecuted for recommending medical marijuana.

The letter also advised that failure to implement the law out of 
concern that it might violate federal statutes would go against the 
California Constitution.

"A unilateral decision not to comply with state law, on the grounds 
that it may be prohibited by federal criminal law, without first 
receiving the guidance of an appellate court, is barred by the 
California Constitution," Renner wrote.

Shewry had also raised a concern that the information gathered by the 
state from medical marijuana card applicants might be subpoenaed by 
federal prosecutors and used against those patients. Here, Renner 
concluded that there was such a risk -- and he agreed with a state 
suggestion that applicants be notified that the information on their 
forms might be used against them, should the federal government 
decide to go after them.

Department of Health Services spokesman Ken August said the program 
will restart immediately in three counties -- Amador, Del Norte and 
Mendocino -- that were part of a pilot project and that applicants 
will be advised of the federal risk. Plans call for the program to be 
rolled out statewide next month.

Federal authorities have repeatedly said they do not intend to 
prosecute individual medical marijuana users, and August indicated 
there has been no demand for the state to supply information from the 
ID card program. "Not so far," he said.

Valerie Corral, executive director of Wo/Men's Alliance for Medical 
Marijuana, praised the decision to restart the program. "It is 
extremely important that the state support the efforts of our task 
force that worked for three years to set up these regulations," she said.

WAMM, as the Santa Cruz organization is called, had threatened with 
the American Civil Liberties Union to challenge the suspension of the 
program in court. "Political pressure always helps," she said.

Advocates for medical marijuana say as many as 100,000 Californians 
use pot to treat their illnesses.

The program is modeled after similar ID card systems set up in many 
California counties, including San Francisco. Although the state ID 
card offers no legal advantage over a county one, Corral said her 
organization is urging patients to get the state card to show 
strength in numbers.

"As a political statement, it is most important," she said.
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