MEDICAL POT RAISES STATE'S RIGHTS ISSUES

CALIFORNIANS DIVIDED IN APPROACHES TO IMPLEMENTATION OF PROPOSITION 215

The U.S. Supreme Court has finally weighed in on medicinal marijuana, but
it will take a lot more than this ruling to help California straighten out
this mess.

The high court ruled the federal marijuana ban does not allow
medical-necessity exceptions, so groups like the cooperative can be
federally prosecuted for growing and distributing marijuana. Cannabis
advocates said the ruling does not affect California's law -- approved by
voters as Proposition 215 of 1996 -- allowing medicinal marijuana use.State
vs. feds

So the federal government says you cannot grow, sell, possess or use
marijuana as medicine, and the state says you can. Yet, more than four
years after the state law's passage, California still seeks a way to
fulfill its vague vision. And this is not even the usual Northern
California/Southern California schism -- the Bay Area itself is torn.

A legislative bill by state Sen. John Vasconcellos, D-Santa Clara, would
set some controls on who gets marijuana and how much they can have without
police interference. The Senate Appropriations Committee will hold a
hearing on it this morning.

But Proposition 215 author Dennis Peron is among those staunchly opposed,
saying the bill's backers are more intent on harassing marijuana users than
helping them.

"They're selling bogus protection and they can't deliver it," Peron bristled.

"It doesn't require him to do anything, so what's his (complaint)?"
Vasconcellos fired back.

That sort of conflict is why previous legislative efforts to implement
Proposition 215 have stalled out. Bereft of guidance from Sacramento,
county and local officials have forged their own policies, often taking
heavy criticism.Oakland's policy

Oakland's is among few policies that marijuana patients find desirable.
Documented patients can grow up to 48 harvestable plants and 96 immature
plants indoors or 30 harvestable plants and 60 immature plants outdoors,
and possess up to six pounds of smoking-ready marijuana.

So when Berkeley passed an ordinance in March limiting patients to 10
marijuana plants regardless of maturity, patients clamored for rules more
like those of the city next door.

"The current law is a blatant contradiction of the intent of Proposition
215 ... and places the City of Berkeley amongst the 10 worst cities in
California in regards to medical cannabis restrictions," raged a recent
Alliance of Berkeley Patients news release.

The alliance now is pressuring city council to adopt a policy like
Oakland's. City council members, meanwhile, also are grappling with how to
grant permits to new medical marijuana clubs. Their proposal to freeze new
permits until a process is devised irks patient advocates as well.

In Marin County, the Marin Alliance for Medical Marijuana now leads an
effort to recall District Attorney Paula Kamena because the group feels her
policy is too harsh; voters will decide Tuesday.

Kamena's flexible policy is that documented patients with up to 12 immature
plants, up to six mature plants and up to half pound of smokable marijuana
are not prosecuted. "But we've declined to prosecute cases with 40 plants
or 70 plants based on the information that's provided to us by the patient
and the doctor."

In 73 cases from 1998, 1999 and 2000 in which a medical defense was raised
for marijuana possession, cultivation or use, Kamena either declined or
dismissed charges in 37 cases; 26 more pleaded guilty.

"We're having a $500,000 recall election because of about 10 disputed cases
- -- it's insanity," she said. "Any direction the state will give to the
local communities and to law enforcement as to when marijuana is
appropriate and what's an appropriate amount would be very well-received."

The Marin Alliance's director, the Rev. Lynette Shaw, insists Kamena's
policy harms patients.

"The DA's policy encourages police to seize and forfeit all marijuana, ...
which kills the plants," she said, adding that more than $500,000 worth of
plants have been destroyed in two years. The plants are federally illegal,
Shaw acknowledged, but the state constitution compels state agencies to
uphold state law even when it conflicts with federal law.

"It's a hidden agenda. She's absolutely not allowing the patients to retain
their property, ... so we're redressing our grievances by petition," Shaw
said. "It's the American way."

Guidance from state courts will not arrive for a while.

The California Supreme Court in March accepted a Tuolumne County case which
could decide whether Proposition 215 provides medical marijuana users with
immunity from state prosecution, or just a defense once they are being
prosecuted. The case also could let the court contemplate standards on how
many plants a patient can have before prosecutors can file felony
cultivation charges.

Mower's appellate attorney, Richard Runcie of Fresno, said he has recently
been joined by a co-counsel -- Gerald Uelman, the Santa Clara University
law professor who argued the Oakland cooperative's case to the U.S. Supreme
Court in March.

But with the first briefs due next week, a Mower decision is a long way
off. Direction could come sooner from Vasconcellos' bill, which inspires
some deja vu in Sacramento.

Soon after taking office in 1999, Attorney General Bill Lockyer -- a
Proposition 215 ally, unlike predecessor Dan Lungren -- convened a task
force of lawmakers, police, prosecutors, medical experts and marijuana
advocates to find a way to implement the law.

The result was a Vasconcellos bill to create a voluntary registry system
with photo ID cards for patients cleared to possess and use marijuana. Law
enforcement officers balked, wanting a surer, quicker way to tell medicinal
from recreational use. When Vasconcellos tried to tweak the bill, doctors
and patients decried confidentiality breaches.

Without law enforcement on board, Gov. Gray Davis signaled he would veto
the bill. Vasconcellos saw the writing on the wall and withdrew it.

Now it is back. Vasconcellos said he decided to pitch the plan again after
law enforcement admitted it is better than what we have got now.

"I'm of a mind to put law enforcement up front ... and see if they can
persuade the governor," he said, adding the bill shouldn't offend anyone.
"It's not mandatory, its not universal, its not exclusive -- you need not
abide by it at all, but if you do, you get a free pass."

Americans for Medical Rights -- a group funded by out-of-state millionaires
George Soros, Peter Lewis and John Sperling, who were Proposition 215's big
financial backers -- support S.B. 187.

Peron, Proposition 215's author, does not.

"We already changed the law. We don't need a free card," he said. "He
(Vasconcellos) is saying he doesn't trust the people to tell the truth."

California does not need more regulations, Peron said -- a doctor's note
should be enough to warn off police and prosecutors from pursuing marijuana
charges. "This is not distribution of marijuana, this is distribution of
cards so the cops will enforce a law they're supposed to enforce anyway."

And Peron does not believe Vasconcellos' registry, if enacted, will remain
optional.

"They say it's voluntary now, but pretty soon, the cops will say, 'Hey why
aren't you registered? If you weren't doing something wrong, you'd be
registered.'"

So California remains divided over interpreting its own law, but how big a
problem is it? Robert MacCoun, public policy and law professor at the
University of California, Berkeley, suggested lawmakers and courts might
have weightier things on their minds.

"Relatively few people are using marijuana for medical purposes, it's
extremely rare for them to be prosecuted, and I think most drug policy
analysts are struck by how minor an issue it is relative to its political
symbolism," he said.

Implementing Proposition 36 -- which replaces jail time with treatment for
uncounted thousands of California drug users -- is far more important, he
said, but lacks medical marijuana's ideological punch.

"The reason we all care about medical marijuana is because it's seen as the
cutting edge of trying to bring about broader changes in marijuana laws,"
he said. "That's why conservatives get upset about it -- they don't have a
problem with treating sick people, but they think it's the Trojan horse for
legalization."