Medical
Marijuana:
California
Reinstates
ID
Card
Program
7/22/05
The suspension of California's pilot state medical marijuana ID card program in the wake of the US Supreme Court's adverse decision in the Raich case has proven short-lived. State Health Director Sandra Shewry suspended the program on June 8, but one week later California Attorney General Bill Lockyer's office instructed her to suspend the suspension. That was last Friday; by Monday, the program was back on track. Shewry had cited concerns that the Raich ruling, which upheld the federal government's ability to prosecute medical marijuana patients and providers even in states where it is legal, could expose patients and state employees to potential federal prosecution. That position was almost immediately challenged by medical marijuana advocates, including the Drug Policy Alliance and the American Civil Liberties Union, who threatened to sue if the program was not reinstated. Attorney General Lockyer's legal opinion came in a letter from Deputy Attorney General Jonathan Renner to the Department of Health Services. It said that not only could state employees run the program with risk of violating federal law, they ran the risk of violating the California constitution if they failed to implement the program. "We believe the federal government cannot enforce federal criminal laws against state officials who merely implement valid state law," Renner wrote, citing among other arguments the 2002 US 9th Circuit Court of Appeals decision in Conant v. McCaffrey, which held that doctors could not be prosecuted for recommending marijuana. As for failing to implement the law requiring the pilot ID program: "A unilateral decision not to comply with state law, on the grounds that it may be prohibited by federal criminal law, without first receiving the guidance of an appellate court, is barred by the California Constitution," Renner wrote. A Department of Health Services spokesman told reporters Monday the program will restart right away in the three counties the pilot program was operating in when it was shut down. So far, only 123 ID cards have been issued, but the program is expected to go statewide next month, said spokesman Ken August. "California's reinstatement of the card program puts to rest any lingering doubts about the continued validity of state medical marijuana laws," said Allen Hopper, an attorney with the ACLU. "Patients can breathe a sigh of relief today, and we are pleased with the attorney general's prompt attention and support for them." The attorney general's legal opinion makes it "abundantly clear that public officials, including law enforcement, have an obligation to uphold state law," said Kris Hermes, legal director for Americans for Safe Access, the medical marijuana defense group that helped mobilize opposition to the program's short-lived suspension. "This opinion has also dealt a serious blow to the federal government's war against medical marijuana patients," Hermes said in a Tuesday statement. "California follows a number of other medical marijuana states in arguing its right to determine the health and welfare of its people, regardless of any conflict with federal law. This opinion will help empower other states to adopt their own medical marijuana laws in defiance of unscientific and unreasonable federal policies." Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance, praised the Health Department's decision to resume the ID card program. "The Department of Health Services made the right decision and did so quickly. I commend the Department for its commitment to protect patients, and its decision to expand the ID program statewide. The Department's program could soon become a model for other states and even the entire nation." But in one sobering note, Deputy Attorney General Renner agreed with Shewry's concerns that federal prosecutors could subpoena information gathered by ID card applicants. In light of that potential, ID card program applicants should be notified that the information on their forms could be used against them by the federal government, Renner wrote. "Of course I and other patients are concerned about the possibility of being arrested by the federal government, but this concern does not outweigh the value of having a state medical marijuana card for protection from California law enforcement," said Diego Donohoe, the first patient to receive a state-issued medical marijuana card in Mendocino County. Donohoe uses marijuana to relieve the side effects of medication prescribed to treat AIDS and cancer, including intractable nausea, loss of appetite, and pain. California joins Hawaii, Oregon and Alaska as the latest state to affirm the continued validity of its medical marijuana laws since the US Supreme Court ruling last month in Gonzales v. Raich. The Court found in Raich that the federal government retains power under the commerce clause of the US Constitution to enforce federal marijuana laws, even where it is legal under state law. "Having the security of a statewide ID card is very good news for all patients," said Donohoe. "What I am doing is in accord with my conscience. It's nice to know California will respect that even if the federal government does not."
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