Stirring the pot

Can the California attorney general convince the U.S. Supreme Court to legalize medical marijuana?

Claudia Arellanes of Citrus Heights holds a marijuana plant and a vial of the marijuana tincture that she uses as medicine.

Claudia Arellanes of Citrus Heights holds a marijuana plant and a vial of the marijuana tincture that she uses as medicine.

Photo By Larry Dalton

Since 1996, voters in Alaska, Arizona, California, Colorado, Maine, Nevada, Oregon and Washington have approved ballot measures legalizing the use of marijuana for medical purposes.

It’s about 2,723 miles from where Claudia Arellanes lives in Citrus Heights to the massive stone columns of the United States Supreme Court building in Washington, D.C. But next week, the justices that occupy this storied building will hear a case that could determine whether the 57-year-old grandmother is a law-abiding citizen or a federal criminal.

The high court will hear oral arguments in “United States vs. Oakland Cannabis Buyers’ Cooperative” on March 28, considering the question of whether the federal government improperly denies citizens the right to use marijuana as medicine. A ruling with potentially wide ramifications is expected by June.

Like thousands of other seriously ill Californians, Arellanes uses marijuana as medicine. She suffers from chronic viral hepatitis C, diabetes and fibromyalgia, ailments that leave her with near-constant pain and nausea.

To stimulate her appetite, she begins most mornings by eating crackers spread with a concoction made from butter and marijuana extract. To alleviate her pain throughout the day and enable her to sleep at night, she uses an eyedropper to place drops of a cannabis tincture beneath her tongue.

This drug use was legalized under California law with the 1996 passage of Proposition 215, the California Compassionate Use Act, which permits people like Arellanes “to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of cannabis.”

Unfortunately for these patients, the Compassionate Use Act is in conflict with a federal law enacted in 1970. That year, the United States Congress passed the Controlled Substances Act which decreed marijuana a “Schedule I” drug with “a high potential for abuse” and “no currently accepted medical use in treatment in the United States.” Possession or use of a substance banned by the act is a federal crime.

That conflict prompted the federal government in 1998 to file a lawsuit against the Oakland Cannabis Buyers Cooperative, its director and others involved in distributing cannabis to eligible medical marijuana patients. In essence, the federal government argues that it is a higher authority and that the use of cannabis under any conditions, even if authorized by the voters of California, is illegal under federal law.

The defendants in the suit counter that treatment utilizing medical marijuana is authorized by the passage of Proposition 215 and measures like it in eight states, and that the federal government has no business banning a drug widely seen as having medical value. They argue that regulation of marijuana should be a state issue, not a federal one.

In agreeing to hear

“United States vs. Oakland Cannabis Buyers’ Cooperative,” the U.S. Supreme Court could be the final word in a back-and-forth battle over whether narcotic regulation should be a state or federal issue, and how far cannabis collectives may go to provide their members with medicine.

An initial ruling in favor of the federal government was overturned on appeal, with the Ninth Circuit Court of Appeals twice ruling that the public interest and patients’ right to use medically necessary drugs trumps the Controlled Substances Act. But the federal government was granted a stay on that order pending review of the case by the Supreme Court.

The outcome of this litigation is expected to determine if Californians with serious illnesses can continue to legally obtain and use cannabis as a treatment without being considered federal criminals, and its decision is expected to affect legalization laws in seven other states and the District of Columbia.

Interested individuals and organizations can offer the court input and guidance in the form of “friends of the court” briefs. Several parties, such as the Family Research Council and the Institute on Global Drug Policy of Drug Free America, have submitted these amicus briefs in support of the federal government’s position.

On the defendant’s side of the issue, the National Association of Criminal Defense Lawyers, American Civil Liberties Union (ACLU), and the National Organization for the Reform of Marijuana Laws (NORML) have filed briefs arguing that the Compassionate Use Act should be implemented without intrusion by the federal government.

Last month, in a development that surprised many medical marijuana advocates and others who have followed the issue, California Attorney General Bill Lockyer took an active role in the case. In effect, Lockyer has asked the Supreme Court to tell the federal government to mind its own business, and allow the state to implement the Compassionate Use Act without interference.

Lockyer, the chief law enforcement officer in California, has weighed in with a friend of the court brief arguing that the Compassionate Use Act should remain a valid state law despite its conflict with the Controlled Substances Act. The attorney general’s brief was researched and prepared by a 22-year veteran of the department, Special Assistant Attorney General Dave De Alba.

It’s about 16 miles from Claudia Arellanes’ home to De Alba’s functional, state-issued corner office on the 17th floor of the imposing state Department of Justice fortress on I Street.

De Alba’s designated job is to advise the attorney general in various policy areas, including firearms and assault weapons, drugs and alcohol, and safe schools. Memorabilia on an office bookshelf reflect the issues he has worked on: an autographed picture of Charlton Heston toting a shotgun, a gift from the National Rifle Association (with whom De Alba has what he describes as a “civil, working relationship”), is displayed next to a bottle of Humboldt Hemp Ale, a gag gift from his staff acknowledging his ongoing work related to Prop. 215.

De Alba was enthusiastic about working on the Supreme Court brief and feels it is the job of the department to represent the interests of California citizens in upholding and enforcing state law: “We were trying to be faithful to the voters in their enactment of Proposition 215.”

De Alba is well-read on the Compassionate Use Act and has given numerous presentations on the implementation of Proposition 215 to law enforcement groups, including the California District Attorneys Association, California Narcotic Officers’ Association and the infamously militaristic Campaign Against Marijuana Planting (CAMP).

After considering the “medical necessity” legal approach being used by the team of lawyers representing the Oakland Cooperative and consulting with legal scholars, De Alba decided on using a different strategy to persuade the nation’s highest court.

With final approval from Lockyer, De Alba took the position that because Prop. 215 was passed by the voters of California and addresses the health and welfare of its citizens, the Ninth and Tenth Amendments to the U.S. Constitution prohibit the federal government from interfering with the law.

De Alba explains that the legal approaches taken by the other defendants “may be better, but we thought this would be a unique approach. We were trying to find a niche, [and] the niche for us was our obligation to protect the voters.”

In essence, the Ninth Amendment states that although the Constitution sets out and protects certain rights, it should not be interpreted as limiting other, unspecified rights “retained by the people.” The California Department of Justice maintains that a state’s interest in the welfare of its citizens is one of those rights.

“The Ninth Amendment limits the power of Congress and the federal government to pass legislation that unduly interferes with California’s interest in regulating the health, safety and welfare of its citizens. As applied, the Controlled Substances Act appears to prohibit seriously ill Californians from using cannabis. The state of California maintains this type of intrusion by the federal government is prohibited by the Ninth Amendment,” De Alba wrote in the brief.

The Tenth Amendment is similar and states that all powers not delegated to the federal government by the Constitution are reserved for the states or to the people. Here, the state argues that the Tenth Amendment “suggests that federal enforcement of the Controlled Substances Act on the individual states violates the expressed protection given to the states,” and that “[u]nquestionably, the Controlled Substances Act unduly intrudes into California’s traditional right to regulate for the health and welfare of [its] citizens.”

In concluding his argument, Lockyer concedes that the effectiveness of medical marijuana is subject to debate, but that the voters of California “have expressed their belief that cannabis should be available to persons with a serious illness who have no other legal alternative to treat their symptoms or illness.”

The attorney general goes on to compare the current medical marijuana controversy with a debate over the effectiveness of smallpox vaccinations in the early 1900s, and dusts off a Supreme Court ruling from that era that addressed the issue.

In 1905, the Supreme Court decided a case which challenged mandatory smallpox vaccinations in the state of Massachusetts. At that time, there was considerable worldwide debate over whether the treatment was effective. The Supreme Court ruled that the state Legislature, acting on behalf of the people, had acted within its powers to require the immunizations.

Because the Supreme Court is generally obligated to respect, and maintain consistency with, its own prior logic and decisions, Lockyer reminds the current court that, in that case it said, “The fact that the belief (in the medical effectiveness of the smallpox vaccine) is not universal is not controlling, for there is scarcely any belief that is accepted by everyone … for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.”

Beyond defending the Compassionate Use Act in federal court, the attorney general has declined to provide much guidance on how the law should be implemented. Questions remain on how much medical marijuana may be possessed or cultivated by a patient or caregiver for personal medical purposes.

“The attorney general’s office does not feel it is its business to issue any specific quantity guidelines,” said De Alba. “That is a medical issue for the Legislature or the courts to work out.”

De Alba explains that after the law passed, then-Attorney General Dan Lungren issued an information bulletin to law enforcement agencies noting that in a criminal prosecution for marijuana possession, it could be argued that possession of a plant or two for medical purposes may be consistent with the new law.

“However, the current attorney general does not endorse or take a position on this previously issued information bulletin,” said De Alba. “And (Lockyer) does not believe it’s proper to issue a view on the (appropriate) amount.”

It’s only a couple of miles from Claudia Arellanes’ home to FloraCare, the local cannabis cooperative where she obtains her medication. The impending outcome of the Supreme Court case was a big topic at the club on a recent Saturday afternoon, as Arrellanes and other patients stopped by to take their medication.

A 70-year-old retired NASA electrical engineer hobbling on a cane explained that the pain and muscle spasms associated with his degenerative spinal disease and three hip replacements have severely impaired his mobility. Unable to tolerate the side effects from prescription pain medication, he said that cannabis lessens the pain and enables him to get around. “I think that in the future, it will be shown that cannabis is good for a wide range of ills,” he adds.

A 35-year-old, self-described “all-American jock” says his professional tennis ambitions were sidelined 11 years ago when he was hit by a car. His lower left leg was severely damaged and his doctor has told him he can expect to suffer traumatic arthritis pain the rest of his life. Most of the time, he prefers to live with the pain without medication.

“I don’t like the idea of taking pills all the time, I don’t even like to take aspirin,” he explains. “But it got to where I couldn’t play sports without severe pain during and immediately after the exercise.” After Proposition 215 passed, a doctor suggested he consider medical marijuana as a pain treatment. He now medicates with a small amount of cannabis before running and is able to exercise with minimal pain.

As for Arellanes, she could be a poster girl for the type of patient many Californians may have had in mind when they voted for Proposition 215. She contracted the viral hepatitis C years ago from a blood transfusion she was given after severe hemorrhaging during childbirth. Among other things, the condition progressively damages the liver.

When she was diagnosed with fibromyalgia, she was initially prescribed Tylenol and codeine for the pain, and Ambien to help her sleep. “I would break the Ambiens in half,” she says. “I got good rest, but they’re highly addictive.”

And the medications put a strain on her weakening liver. “I don’t even take vitamins every day so my liver doesn’t overwork. So many of these pills they prescribe put a strain on the liver,” she said.

Arellanes says she won’t stop using cannabis as a medical treatment regardless of what the Supreme Court decides, and is willing to break the law if it impacts her ability to function. “I guess they could arrest and process me, but then it would probably be thrown out of court,” she said. “With my ailments, I don’t feel like I’ll be imprisoned.”