VOTERS' WILL AT STAKE IN MEDIPOT TRIAL

It's not just Steve and Michele Kubby who were scheduled to go on trial
today in Placer County on charges of growing marijuana in their home. Also
at issue is the basic political question of whether the people's will
matters, especially when it conflicts in no way with anyone's
constitutional rights.

Plenty of successful California ballot initiatives have been altered by
courts after they were found to trample on basic rights guaranteed by the
Constitution. Examples: The 1964 Proposition 14 and its attempt to
legitimize racial discrimination in housing and the 1996 Proposition 187,
seeking to deprive illegal immigrants of public schooling and health care.
But the courts can't touch Proposition 215, which also passed in 1996. No
one so much as suggests it could ever deprive anyone of any right. This
initiative aimed only at allowing patients to use marijuana when their
doctors say it can help them.

The only legal problem with this measure is that it conflicts with federal
regulations that place pot on the list of dangerous and illegal narcotics
which no one may use under any circumstances - unless they have a federal
permit exempting them.

So insistent are federal officials on enforcing their list that Barry R.
McCaffrey, the appointed federal drug czar who has never stood for elected
office anywhere, told California Attorney General Bill Lockyer last spring
that he risked arrest if he conducted marijuana-related research. So an
appointed federal official was essentially threatening the elected chief
law enforcement officer of America's largest state.

McCaffrey was also ignoring a White House-commissioned report from the
federal Institute of Medicine, which declared pot safe for medical use. But
Lockyer backed off. His office has so far sponsored no research on medical
marijuana. He allows his investigators to testify for the prosecution in
medipot trials. While he makes no move to stop anyone from using medical
marijuana, he also does nothing to stop local sheriffs and district
attorneys from disregarding Proposition 215.

That's why the people's will is as much at issue in the Kubby trial as the
fate of the couple themselves.

Kubby, last year's Libertarian Party candidate for governor, was arrested
with his wife in January, when a joint state-local-federal task force
entered their home near Lake Tahoe and found about 200 pot plants of
varying sizes. Placer County authorities immediately said that was too many
to be just for their own use. So even though prosecutors admit they have no
evidence of even one sale, or any intention of selling, the Kubbys stand
accused of growing pot for sale.

Meanwhile, the couple says they were growing the weed according to the only
guidelines in existence for medipot plant quantity, issued last year by the
city of Oakland. Steve Kubby's doctor insists that without medipot, he'll
die within months of malignant pheochromocytoma, a rare form of adrenal
cancer which he has held at bay with marijuana since the 1970s.

That's what makes this case a classic: Local authorities ignore Proposition
215, medical evidence and testimonials. The attorney general keeps hands
off. That leaves it up to a jury.

"This is no more about pot in the final analysis than the Boston Tea Party
was about tea," says Kubby. "This is about whether you can get the medical
treatment you need without the interference of officialdom. We were told if
we didn't like existing laws on marijuana, we should change them. We did
that. Now our only other chance to go before the people is via a jury.

"That seems the only way to bypass intransigent local officials. We think
if we win, it will influence what sheriffs and district attorneys will do
everywhere in California."

He may be right. For sure if the Kubbys are acquitted, some representatives
of the people will have spoken again. But if their case never reaches the
appeals court level, there's no guarantee law enforcement will heed a
precedent set here any more than it has Proposition 215.