Pubdate: Mon, 14 Jan 2013
Source: Press Democrat, The (Santa Rosa, CA)
Copyright: 2013 The Press Democrat
Contact:  http://www.pressdemocrat.com/
Details: http://www.mapinc.org/media/348
Author: Mary Callahan

MENDOCINO COUNTY TO FIGHT FEDERAL SUBPOENA SEEKING POT PERMIT INFO

Mendocino County is gearing up for a court battle over a federal
subpoena ordering local officials to surrender records from its
now-defunct medical marijuana permitting program, including what
county attorneys say is legally protected medical and financial
information.

Despite repeated queries, Mendocino County officials say they do not
know who the target of the criminal grand jury might be -- growers,
users or public officials.

Some observers have suggested federal authorities hope to get their
hands on nearly $830,000 in revenue the program generated when it was
active.

Attorneys for the county, as well as advocacy groups behind a "friend
of the court" brief, say a variety of court rulings and the Tenth
Amendment support the county's right to establish protocols under
California's 1996 Compassionate Use Act without interference from the
federal government, which does not recognize a medical use for marijuana.

They also cite precedent for maintaining the kind of confidentiality
that would be breached were the county to surrender its records as
ordered -- particularly patient condition information and financial
account and payment records supplied by growers who applied for county
permits.

"We would definitely rather not send people's names and parcel numbers
and how much money they expended to the feds," said longtime county
Supervisor Dan Hamburg, who assumed the board chairmanship last week.

A San Francisco defense attorney hired to fight the subpoena has
lodged a formal motion that contends, in part, that the county is
prevented from releasing confidential medical information because of
criminal sanctions outlined in the 2004 California Medical Marijuana
Program Act under which the county's regulations were developed.

"(It) is clear that if the county were to comply with this subpoena,
the bulk of its disclosure would constitute sensitive medical
information concerning the participants," wrote the attorney, William
Osterhoudt.

The subpoena also seeks information on county financial accounts,
specifically those used by the Sheriff's and District Attorney's
offices, and those related to funds collected through the permitting
program.

The permitting plan approved in March 2010 was abandoned a year ago
after the threat of a federal lawsuit. It allowed qualified medical
marijuana cooperatives to grow up to 99 plants if they complied with
numerous conditions aimed at easing the impact on neighbors, the
environment and crime rates.

Collectives paid $1,500 for the permits, monthly inspection fees of
about $500 and $50 each for special numbered zip ties identifying each
authorized plant. There were 95 entities that applied in the 2011-12
fiscal year, 91 of which were approved, Sheriff Tom Allman said.

Though that program was scrapped, medical marijuana users still may
grow up to 25 plants under an ordinance adopted in 2008 and modified
several times since then.

Although the permit program had been suspended, the U.S. Attorney's
Office empaneled a grand jury that issued an Oct. 23 subpoena ordering
the county to turn over "any and all records" from the program going
back to January 2010. The order includes all application and
inspection records, financial account numbers, and communication of
any kind between the county, permit holders and applicants, and
third-party inspectors.

The county, which recently set aside $10,000 to hire Osterhoudt,
responded Dec. 21 with a motion to quash the subpoena, calling it
overbroad, improper government intrusion that puts privileged
attorney-client and doctor-patient communication at risk without
identifying any relevance to a criminal target or prosecution.

The government, Osterhoudt wrote, "is apparently on something of a
fishing expedition, casting a wide net to ensnare patients
participating in the medical marijuana program, while simultaneously
striking a heavy blow to that program and the county's right to
maintain it."

A Jan. 29 hearing date is set in U.S. District Court in San Francisco
at which the county will ask Northern California District Judge
Richard Seeborg to nullify the order.

Osterhoudt declined comment on the subject, as did Mendocino County
Counsel Thomas Parker.

Attorneys are looking in part to a 2007 district court ruling
involving a private Oregon clinic that successfully quashed a subpoena
seeking records on 17 medical marijuana patients.

San Francisco attorney Adam Wolf, who wrote a brief in support of the
county on behalf of medical marijuana groups, said that ruling raises
the possibility that a federal subpoena could "trump" state
sovereignty given a showing of necessity and relevance. But the ruling
also said the state had a legitimate interest in the integrity of its
program and in maintaining its contract to maintain participants'
confidentiality, he said.

According to Wolf, the U.S. Attorney's Office maintains that
participants in Mendocino County's program relinquished the privilege
to keep medical and financial information confidential when they
provided it to the county and to those who cultivated their marijuana.

Permit applicants also had to acknowledge that the county ordinance
did not protect them from federal prosecution.

But Hamburg and Wolf said that's not the same as waiving
confidentiality. Even so, supervisors tweaked the ordinance language
last week to make explicit what they said was always implicit. The
ordinance now states that any medical marijuana information provided
to the county or generated by the ordinance "was always intended to be
treated as confidential medical information under state and federal
law."

Supporters say any breach of that confidentiality would destroy faith
in the county, voiding very deliberate efforts to balance community
interests and maintain some oversight of the medical marijuana trade.

"It would effectively move those operations underground," Wolf said.
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