Pubdate: Wed, 04 Aug 2010
Source: Tahoe Daily Tribune (South Lake Tahoe, CA)
Copyright: 2010 Steve Kubby
Author: Steve Kubby


Everyone is entitled to their own opinion about medical marijuana.
However, they are not entitled to their own facts. As someone who
played a key role in the Proposition 215 campaign, I must correct
several false and misleading statements issued by council members and
the city attorney recently.

To begin with, members of the council have engaged publicly in
practicing medicine without a license, diagnosing patients based upon
their appearance and age. Furthermore, council members have publicly
criticized those who use medical cannabis for anything less serious
than cancer or AIDS, telling the public, "This isn't what the voters
voted for."

Actually, this is exactly what the voters voted for. In the 1996 Voter
Handbook, voters were instructed that a yes vote would legalize
marijuana for any medical condition and exempt those who possess or
cultivate marijuana with the written or oral approval of a physician.

In fact, James P. Fox, president of the California District Attorneys
Association solemnly warned voters, in the official ballot arguments
opposing our initiative that if Prop. 215 passed, it would "legalize
marijuana." Remember that this is the president of all the district
attorneys and a publicly recognized authority on the law. Voters
trusted his opinion and that this is how all the state district
attorneys would interpret the new law, if approved by voters.

The fact is that when the people of California wrote and passed
Proposition 215, the Compassionate Use Act, it was intended to fully
exempt patients from all criminal prosecution for possession or

Attorney General Dan Lungren even said so when he wrote his official
title and summary to Prop. 215. Nowhere in the official title and
summary or in the text of the Compassionate Use Act does it say
anything about an affirmative defense or any limits or

It was Lungren who fraudulently changed his official attorney
general's interpretation after the election from "exempts patients and
defined caregivers" to his personal "narrow interpretation," which
told law enforcement they could go ahead and arrest anyone who had
"too much for personal use."

Lungren also immediately called a statewide meeting to discuss and
coordinate how police could gut Proposition 215 and ignore the new
law. The gist of his narrow interpretation was relayed to law
enforcement officers throughout California by their professional
associations and through official channels.

Lungren also met with and coordinated his attack on the Compassionate
Use Act with federal officials. The affirmative defense strategy
allowed opponents of medical marijuana to achieve what they couldn't
on election day -- a fraudulent interpretation that allowed police to
continue arresting and charging people as if Proposition 215 had never

Several South Lake Tahoe officials have also expressed their opinion
that federal law supersedes state law. However, our courts have ruled
against this argument and ruled that federal law does not supersede
state law, with respect to health and safety issues.

In People v. Kha, the Fourth District Court of Appeals said, "By
complying with the court order to return Kha's pot, Garden Grove
officers will actually be facilitating a primary principle of
federalism, which is to allow the states to innovate in areas bearing
on the health and well-being of their citizens."

This decision was challenged by various law enforcement organizations
who brought the matter before the California Supreme Court which
refused to hear the case. California police and prosecutors then
appealed to the U.S. Supreme Court, which also refused to hear the
case, upholding this California decision as the law of the land.

Statements that federal law supersedes state law also places the city
council, and every other official who uses this bogus argument to
attempt to nullify the will of the people of California, in direct
conflict with our California Constitution, the highest law in our state.

The US Supreme Court has had three opportunities to declare the
Compassionate Use Act unconstitutional, yet they have not only refused
to do so. Their legal decisions have clearly upheld that the people of
California had every right to legalize the possession and cultivation
of marijuana for medical purposes.

It is vital that the South Lake Tahoe City Council recognize it does
not have the legal authority to restrict patients or their gardens.
That's because the California Constitution requires that any changes
to a voter initiative must be submitted to the voters of the state and
approved by them. Thus, no city attorney, nor city council, nor board
of supervisors, nor sheriff, nor district attorney, nor legislature,
nor attorney general, nor governor has the legal right to change the
state's medical marijuana law. Only the voters can change or modify
this law. Thus, almost all of the city council's proposed limits on
medical marijuana gardens are a direct violation of law and of the
state constitution.

Sick, disabled and dying patients throughout California are still
being raided by SWAT teams, arrested, jailed, humiliated, treated like
criminals, bankrupted, children seized by CPS and forced to fight for
their freedom as well as their life, all because of those who are
still illegally opposing this law 14 years after the people of
California voted to exempt patients and caregivers from criminal
penalties and sanctions.

It is time to separate opinion from fact and uphold the Compassionate
Use Act as it was written and passed by the People of California. The
lives of sick, disabled and dying patients are in the hands of
dedicated and otherwise well-intentioned public officials.

- -- Steve Kubby is a South Lake Tahoe resident and author of "The
Politics of Consciousness" and "Why Marijuana Should Be Legal." 
- ---
MAP posted-by: Jo-D