The Clash Between Federal Drug Law and CA MMJ Law

The Clash Between Federal Drug Law and CA MMJ Law
Posted by CN Staff on November 09, 2007 at 07:49:32 PT
By Vikram David Amar
Source: FindLaw
California -- Two news items during the past couple of weeks in California highlight the complicated legal and political tangle that is American federalism - the relationship between federal and state governments -- today. Both incidents involve the interplay between, on one hand, California's (now decade-old) decision to decriminalize marijuana use for medicinal purposes, and, on the other hand, the continuing illegality under federal law of all marijuana cultivation, possession, distribution and use, for any purpose.
The two events present radically different facts: One involves an alleged criminal conspiracy that is far-flung and linked to violence, whereas the other involves a civil lawsuit brought by a seemingly productive employee against his employer. Yet the two episodes, taken separately and together, nicely illustrate key aspects of the ongoing tug-of-war between so-called "states' rights" and federal supremacy. The First Episode: The Criminal Charges Against Two Entrepreneurial BrothersOn October 30, federal drug agents executed numerous search warrants against Winslow and Abraham Norton, two young brothers (Winslow is 26 and Abraham 23) who are alleged to have sold an estimated $49 million of marijuana at various locations in the Bay Area during the past three years. The Nortons' medical marijuana dispensary was registered and given a permit to operate under the regime prompted by California's Compassionate Use Act ("the Act"), a 1996 initiative measure adopted statewide by voters that decriminalizes, under state law, marijuana cultivation, distribution, and use in those instances where a physician has given a written or oral recommendation or approval to a patient to use marijuana.Under the Act and subsequent implementing legislation, an Alameda County Sheriff's Deputy regularly visited the Nortons' facilities to ensure that only those persons with physician recommendations were being given the drug. According to press accounts, the Nortons paid state and federal income taxes on (at least some) of their income, rewarded their workers well and gave them benefits, and even contributed charitably to the community.Nonetheless, the Nortons appear to have been flagrantly violating the federal Controlled Substances Act, which designates marijuana as an illegal contraband substance whose manufacture, distribution and use is prohibited in virtually all instances. The Constitutional Reason Federal Law Trumps California Law HereHow, some people in California are asking, can the feds impose their will on the people of California, who have chosen a different answer than has Congress to the controversial and vexing question of whether marijuana use should ever be allowed?The answer is short and sweet: The Supremacy Clause of the U.S. Constitution makes validly-enacted federal statutes the "Supreme" law of the land, along with the U.S. Constitution itself. So, as long as the Controlled Substances Act is within Congress' constitutional powers to enact (as the Supreme Court held it was a few years ago, in Gonzales v. Raich), Californians can have no state-conferred immunity to be free from federal restraints and prosecution.Readers who don't easily see why federal statutes ought to be supreme over - and not constrained by - inconsistent state laws may want to consider the example of Southern resistance to federal civil rights laws in the 1950s and 1960s. There too, proponents of local authority argued that the national legislative policy adopted by Congress in Washington DC - in that instance, that racial discrimination in employment and housing should be barred - should not be imposed on states and localities that had reached a different resolution as to how they believed the races ought to interact. In that setting, federal law won out. So too here.Consider another example in which federal supremacy seems quite intuitive and attractive. Suppose Congress outlawed use of a particular environmental pollutant that many considered dangerous. If a majority of voters in any one state nonetheless wanted to allow persons within the state to use that pollutant, then those voters could decriminalize use of the pollutant under state law, but could not prevent the federal government from punishing those within the state who emit the dangerous chemical. Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully Different from Federal Supremacy Regarding Marijuana? One way to attempt to distinguish the civil rights and pollution examples from example taken from the marijuana setting would be to point out that unless there is federal enforcement in the civil rights and environmental law areas, innocent victims who happen to live in the permissive state may suffer. In other words, there are spillover effects from a state's decision to go its own way concerning racial discrimination and pollution - effects that may harm individuals both in that state and in other states.But the same can arguably be said for marijuana. If, for example, marijuana use does create a risk that some persons may drive unsafely or do other unwise things while under the influence, then the effects of this behavior are not limited to the marijuana users themselves, nor are the effects even limited to Californians.California's medical marijuana scheme undoubtedly affects the marijuana market in bordering states, and creates spillover effects in those other states. Drivers cross state lines, as does the violence that tends to follow business enterprises that are illegal in some places. It does not seem coincidental that the Norton brothers' operations involved many young, seemingly healthy customers who nonetheless have physician recommendations. Nor does it seem coincidental that the Nortons have been plagued by armed robberies; news reports suggest that, at least four times, armed assailants have either killed, shot or robbed the Nortons themselves or their employees or customers. This kind of violence rarely can be confined to one small location, or even one state.Indeed, in upholding Congress' power to regulate all marijuana, including medicinal marijuana, the Supreme Court in Raich noted that the federal government cannot count on California to keep its medicinal marijuana - or the effects of this marijuana - within state boundaries. The Second Event: The California Supreme Court Hears Ross v. Ragingwire Telecommunications Inc. The second illustration that helps frame federalism issues in this area is the Ross v. Ragingwire case, in which the California Supreme Court heard oral arguments this past Tuesday. Ross is a U.S. Air Force veteran who sustained disabling injuries as a result of his military service. Since 1999, he has been taking marijuana on the advice of his physician to alleviate back pain. He was hired by the Sacramento technology company Ragingwire, which, pursuant to company policy, required him to submit to a drug test.Ross complied, and was very open about his medicinal use of marijuana. But when his drug tests came back and they were (predictably) positive for marijuana, he was terminated. Ross then brought an action under the California Fair Employment and Housing Act (FEHA). FEHA, a state law similar to the Americans With Disabilities Act, requires employers in California to accommodate the physical disabilities of an employee or would-be employee so long as the employee can, with accommodation, perform the essential functions of the job. Ross argued that since he was disabled but could, through the use of medical marijuana, perform the essential functions of his job, Ragingwire violated his state law rights in terminating him on account of his marijuana use.The lower courts ruled in favor of the employer, reasoning that FEHA does not generally bar employers from using drug tests or from requiring that all employees refrain from illegal drugs. Since marijuana is an illegal drug under federal law even though its use by Mr. Ross was not criminal under California law, the lower courts reasoned, employers can terminate marijuana users. How Is the California Supreme Court Likely to Decide the Ross Case? Now, the California Supreme Court must decide how to interpret the FEHA in light of this complicated interaction with the federal Controlled Substances Act.A few things seem clear. One is that federal law could, if Congress wanted it to, explicitly empower employers to discriminate against marijuana users, even if marijuana use is decriminalized under state law. In legal parlance, Congress could, if it wanted to, "preempt" state FEHA claims based on Ross' theory.But nothing in the federal Controlled Substances Act or elsewhere in federal law seems to say or do that. In other words, there is no federal preemption or (as in the Norton case) federal enforcement of federal law. Instead, there is only the question of whether FEHA claims, as a matter of California state law, can be based on failure to accommodate medicinal marijuana users, given that marijuana is a federally-proscribed substance.In deciding what FEHA means, or should mean, the California Supreme Court needs to balance a number of factors. First, if Ross prevails, then at a minimum, California employers who are constrained to allow medicinal marijuana should not be held liable under state tort claims for any injuries traceable to the marijuana use. (The state Supreme Court should have the power to confer this tort immunity, since it fashions California tort law. In contrast, the California Justices cannot immunize employers from liability under federal law, but hiring medicinal marijuana users wouldn't seem obviously to violate any federal law.)Second, even if the specter of state tort liability is removed from employers, it is still not clear whether they should be forced to hire persons who are breaking federal law. Should an employer be forced to bear the (small but perhaps non-trivial) risk that his employee will be arrested by the feds (and thus unavailable for work)? Or that the workplace may be the target of a federal law enforcement search? Or that residual marijuana in the employee's physical system will affect his job performance?On that last point, recall that FEHA claims are viable only if the employee can perform the essential job functions. So ruling for Ross wouldn't require employers to hire employees whose medical marijuana use deeply impairs job performance. Still, there is a difference between performing the essential functions of a job and excelling at the job, and there is an argument that an employer should be free to pursue excellence, not bare competence, when a federally-proscribed drug is responsible for any lapse in job performance.Finally, and perhaps most importantly, the California court will have to consider what the California legislature intended when it enacted a provision in 2003 that made clear that employers did not have to accommodate medical marijuana "use" on the jobsite "premises" or during the hours of employment. Does this provision suggest that accommodation is required so long as the medicinal marijuana is ingested off the employer's property? Or does this language create no such strong inference? And what does "use" mean here, anyway? Is a person "using" marijuana on the jobsite if it is still in her bloodstream when she is on the job, even though she inhaled it at home?These and other questions are the ones the California Supreme Court's Justices will grapple with, as they issue an opinion some time in the next few months trying to make sense of the federal-state medicinal marijuana hash. Whatever result the Court reaches, both the decision and the fallout should be very interesting. Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Complete Title: The Clash Between Federal Drug Law and California's "Medical Marijuana" Law: How Two Interesting Recent Events Illustrate Their InterplaySource: FindLaw (CA)Author: Vikram David AmarPublished: November 9, 2007 Copyright: 2007 FindLaw Website: Medical Marijuana Archives
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Comment #6 posted by dongenero on November 10, 2007 at 10:14:45 PT
John Tyler-good comment
John, I make the same distinctions as you. I feel that this law professor's line of reasoning is not a really a valid, balanced comparison.
There is a clear difference in policy that limits freedom from policy that grants freedom. I feel that that is based on our Constitution's spirit of ensuring freedoms rather than outlining limitations of freedom.Beyond that, the Controlled Substances act is, I feel, an aberrant stretch of the Constitution, Supreme Court decisions or not. It is this desperate stretch of the Constitution that has made the issue so legally complicated.I'm no law professor but, I feel that Professor Amar is just talking himself in circles, mired in legalese, meanwhile missing these fundamental aspects of the issue.
Such is the way of the prohibitionist.
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Comment #5 posted by John Tyler on November 10, 2007 at 09:04:40 PT
Fed is in the wrong
This is a very well reasoned and logical explanation. But, the basic premise in this argument is wrong, flawed, and faulty, whatever you want to call it. Cannabis is not bad. Cannabis is good, and has always been good. History shows that cannabis was prohibited because of rabid racism used to mask narrow, greedy self-interest, not because of any inherent negative qualities it might possess. With this in mind, the Federal legal argument falls apart. This situation is the reverse of the segregation and pollution examples the writer uses. Those several states’ segregation laws were hurtful and unjust and the Federal gov. rightfully forced a change, similarly with the theoretical pollution case. In this situation the states are correct and the Federal government is wrong. So now you have the Federal government trying to enforce hurtful, unjust laws on states that seek freedom for their citizens. Cannabis should be regulated, taxed and available to an adult clientele. If this were done these expensive legal squabbles would come to an end. 
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Comment #4 posted by FoM on November 09, 2007 at 10:33:39 PT
Grand Jury Kills Salem Medical Pot Hash Oil Case
 By Associated PressNovember 9, 2007 SALEM, Ore. (AP) - A grand jury has refused to indict a man police suspected was making hashish or hash oil from his medical marijuana.   
Anthony Beasley, 28, was arrested in October. His 24-plant garden abutted a parking lot at McNary High School.   
Beasley was evicted from the rental property the day of his arrest.    
Police say they found pipes in his home with a concentrate of marijuana, leading them to believe he was producing hashish, or hash oil.
   He told police he was extracting the active ingredient of marijuana, known by the initials THC.
   The grand jury considered a felony charge of manufacturing a controlled substance within 1,000 feet of a school.
   But Marion County Deputy District Attorney Courtland Geyer says the jury's refusal means the case is all but dead.Copyright 2007 by The Associated Press
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Comment #3 posted by fight_4_freedom on November 09, 2007 at 09:44:25 PT:
some good news in ca
Glenn Health Services to Issue Medical–Marijuana IDsBarbara Arrigoni, Staff Writer
November 7, 2007
Chico Enterprise RecordWILLOWS -- Glenn County joined 35 other California counties Tuesday with a decision by the Board of Supervisors to approve a fee for dispersing medical-marijuana identification cards to people who have prescriptions.
At a public hearing in Willows, Health Services Agency Director Scott Gruendl said he's spent the last 18 months working on how to implement the state's marijuana law. He said voters approved medical-marijuana use 11 years ago and the state authorized identification cards three years ago.Part of Gruendl's effort has been spent working with the district attorney, sheriff and Orland and Willows police chiefs to figure out how to operate the plan locally. He has also been watching legal issues pertaining to medical marijuana in other counties, he said.To comply with the 2003 Senate Bill 420, Gruendl asked the board to approve two items: designate Health Services as the local agency to handle applications and establish a fee of $174 per year for administrative costs. A $66 portion of the fee will go to the state Department of Public Health for its costs.Health Services will collect card applications and the fee, verify the validity of the prescriptions and physicians' licenses and obtain photographs. That information will be sent to the state, which will produce the cards. Gruendl said he and law enforcement officials estimated about six cards will be issued locally. He said the card will allow the sheriff's dispatcher to verify with one call that a card is correct, which he said will eliminate several steps law enforcement now take when they encounter people using marijuana. A few individuals in the audience talked about their own experiences with law enforcement and their medicinal use of pot. They asked the board to approve the requests and specifically asked the county to set specific guidelines about how many plants a person with a prescription can legally have.Supervisor Tom McGowan at this point clarified that although the state has passed a law allowing medical-marijuana use, the federal government still considers it a crime."We're not condoning the use of marijuana," McGowan said. "We're only charging the costs we are incurring."Supervisor Keith Hansen also said the board's position was only to comply with the state's law, and not to argue the individual basis or philosophy of the law. The board approved the request 4-1.
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Comment #2 posted by unkat27 on November 09, 2007 at 09:20:28 PT
CA MMJ Proof-Positive Legal MMJ Works
What hits me directly about this federal vs state conflict with MMJ is the way in which the feds and prohibitionists completely avoid the most obvious reality about CA decade-long legal MMJ policies. What is most obvious is that legal MMJ does NOT turn humans into a bunch of violent criminals such as the prohibitionists suggest with their reefer-madness redux.What is most obvious is that legal MMJ has been put to a decade-long state-wide test and it has passed that test and if it were not for the feds making it much more difficult for people than it should be, it would look even better than it does.Think about it. Scientific method uses test-cases to prove points. California has more test-cases to prove that legal marijuana works well and does not have all kinds of adverse side-effects than any research into the benefits of marijuana in the USA. And yet, the feds choose to ignore and deny it!They are sadistic fascist idiots! How can anyone that checks these facts continue to give the prohibitionists fools any respect at all?
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Comment #1 posted by fight_4_freedom on November 09, 2007 at 08:21:58 PT:
They try to poison us on a daily basis
By LINDA A. JOHNSON, AP Business Writer 15 minutes agoTRENTON, N.J. - Merck & Co. said Friday it will pay $4.85 billion to end thousands of lawsuits over its painkiller Vioxx in what is believed to be the largest drug settlement ever.Merck faced personal injury lawsuits representing 47,000 plaintiffs, and about 265 potential class action cases, filed by people or family members who claimed the drug proved fatal or injured its users. The agreement covers cases filed in both federal and state courts.Negotiating teams met more than 50 times in eight states and spoke hundreds of times over the telephone to hammer out the deal, according to attorneys."I'm very happy with it," Chris Seeger, one of the six plaintiff lawyers who helped negotiate the settlement, said Friday. "It's a tremendous way to resolve this litigation."Merck pulled Vioxx from the market Sept. 30, 2004 after its researchers determined the then-blockbuster painkiller doubled risk of heart attacks and strokes.To qualify for a settlement, plaintiffs must have filed claims by Thursday and meet several criteria, including medical proof that they suffered a heart attack or stroke, that they received at least 30 Vioxx pills and that they received enough pills to support a presumption that they were ingested within two weeks before injury.That is a big concession by Merck, which has long claimed that Vioxx caused harm only after 18 months of use.Those claims were dismissed by independent scientists and plaintiffs lawyers.Merck stressed that the agreement is not a class action settlement and that it is not admitting fault.Company executives and attorneys said as recently as last month that every case would be fought individually.Analyst Steve Brozak of WBB Securities called Merck's' handling of the litigation "a Harvard casebook study of how to deal with a problematic product."Investors seemed to agree, as Merck shares jumped 4.6 percent, or $12.50, to $57.27 Friday.Analysts predicted early on that liability could reach $50 billion, but after losing its first case in a $253 million verdict, Merck has won a string of civil cases.Merck may now have put the uncertainty of millions of dollars in legal costs behind it, though it has been fairly successful fighting cases individually, winning 10 of 15 court verdicts to date.The company said last month it had added $70 million to its reserves for defending lawsuits. As of Sept. 30, Merck had reserved a total of $1.92 billion for legal expenses and spent a total of $1.2 billion.The deal becomes binding only if 85 percent of the plaintiffs in about 26,600 lawsuits agree to drop their cases. It was finalized in the early morning hours after attorneys for Merck and the plaintiffs met with three of the four judges overseeing nearly all Vioxx claims.Seeger said the deal was put in motion last December when three key judges pushed the parties to open out-of-court talks."Every claimant is going to be compensated" once their claim is validated, he said.Seeger believes it is the largest settlement ever in the industry and said he will recommend that his 2,000 clients accept the deal.Payments would vary, depending on severity of injuries and the length of time that Vioxx was used."The agreement is structured to provide a significant degree of certainty toward resolving the majority of the outstanding VIOXX product liability claims in the United States for a fixed amount," Richard T. Clark, chairman, president and chief executive officer of Merck, said in a statement.Attorneys for both sides were to present the deal Friday morning to U.S. District Judge Eldon E. Fallon in New Orleans."In light of significant costs and delay that would result in protracted litigation, the settlement program will ensure that those who suffered injuries as a result of Vioxx are compensated fairly and efficiently," according to a statement from one of the lead plaintiffs law firms in the case, Beasley, Allen, Crow, Methvin, Portis & Miles of Montgomery, Ala.
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