Pubdate: Wed, 28 Oct 2015
Source: Anderson Valley Advertiser (CA)
Copyright: 2015 Anderson Valley Advertiser
Contact:  http://www.theava.com/
Details: http://www.mapinc.org/media/2667
Author: Fred Gardner

Breyer to DOJ:

ACTS OF CONGRESS MATTER

"This court has a lengthy history with this defendant on these 
issues," wrote US District Judge Charles Breyer in an order filed 
October 19 allowing the Marin Alliance for Medical Marijuana to 
reopen because Congress has changed its spending priorities.

MAMM proprietor Lynette Shaw first appeared before Breyer in 1998, 
when the US Attorney for the Northern District of California sought 
an injunction to close hers and five other dispensaries (including 
the San Francisco and Oakland Cannabis Buyers' Clubs).

Back then Breyer granted a preliminary injunction on the grounds that 
the federal Controlled Substances Act took precedence over the 
medical marijuana law enacted by California voters.

Some of the dispensaries remained open, however, arguing that they 
were serving patients whose cannabis use was a matter of necessity. 
This argument was rejected by Breyer, then accepted by the Ninth 
District Court of Appeal, then rejected by the US Supreme Court. 
Breyer issued a permanent injunction in 2002, but Shaw stayed open 
for business in the small Marin County city of Fairfax. MAMM had 
thousands of members and a business license from the city.

It wasn't until 2011 that US Attorney Melina Haag closed the 
dispensary by threatening to seize the property from the landlord. 
Slammed with a $3 million claim from the IRS, Shaw retreated to Los 
Angeles and tried to start a delivery service that didn't take off. 
In 2014, when she returned to the Bay Area to auction off MAMM 
memorabilia, she was at loose ends. Now she plans reopen the 
dispensary at another location in Fairfax if she can get financial backing.

Greg Anton of Sebastopol is the lawyer who sought to get the 
injunction against MAMM "dissolved" on the grounds that it violates 
Section 538 of the Appropriations Act of 2015, also known as the 
Rohrabacher-Farr Amendment after the Santa Ana Republican and Santa 
Cruz Democrat who introduced it. The Amendment forbids the Department 
of Justice (DOJ) to spend funds to prevent California and 32 other 
states "from implementing their own State laws that authorize the 
use, distribution, possession or cultivation of medical marijuana."

Although Breyer left the injunction against MAMM in place, "The plain 
reading of the text of Section 538," he wrote, "forbids the 
Department of Justice from enforcing this injunction against MAMM to 
the extent that MAMM operates in compliance with California law."

Breyer's order was sharply critical of the US Attorney. "Where to 
start?" he asked after summarizing the DOJ arguments. He was appalled 
by the notion that closing down an occasional dispensary "may be 
presumed to have such a minimal effect on California's medical 
marijuana regime that it does not 'prevent' California from 
'implementing' its State law.

"This 'drop-in-the-bucket' argument is at odds with fundamental 
notions of the rule of law. It has never been a legal principle that 
an otherwise impermissible government intrusion can be countenanced 
because any one defendant is a small piece of the legal landscape.

"To the extent the Government cites a few cases addressing Section 
538, none are analogous or even particularly favorable to the 
Government's position," Breyer observed scornfully. The cases cited 
by DOJ all involved individuals or organizations that violated state 
law. But DOJ never alleged that MAMM had violated state law. Lynette 
Shaw treasured her license from the city and ran a legal operation, 
according to Fairfax mayor Larry Bragman, whose letters of support 
Breyer cited in his order.

What happens next?

Your correspondent asked some lawyers if Breyer's order would block 
DEA participation in and funding of the Inter-Agency Drug Task Forces 
that have taken down so many growers.

 From Attorney Greg Anton: Yes -it means the Feds cannot interfere 
with state medical marijuana laws, including inter-agency actions. So 
far the ruling applies to Northern California. It will soon apply in 
the 32 states named in the order. In December it will probably apply 
to 40 states, as per Senator Cochran's draft appropriations bill.

 From Attorney Zenia Gilg: I think this is a very significant 
decision, as it essentially states that Congress means what they 
legislate, and they are legislating a ban on DOJ action against 
medical cannabis providers. Further, next year they will also ban DOJ 
action against all providers in those states which have legalized it 
for recreational purposes. This exceeds simply foreclosing 
prosecutions, but also curtails civil and equitable actions. The 
problem, of course, is it can change on a dime depending on the 
controlling politicians. Be that as it may, it is a great decision.

 From Attorney Haile Cynical: I suspect neither Breyer nor anyone 
else looked too closely at MAMM... Larry Bragman has been Lynette's 
lawyer and supporter for more than a decade - long before he became 
mayor of Fairfax. If the feds really were motivated, I believe they 
could make both an arguable case that MAMM was out of compliance and 
that California has inadequate regs... The interesting question now 
is whether the government will take Breyer up to the Ninth Circuit.