CALIF. SUPREMES HEAR FROM FRIENDS IN HIGH PLACES ON EMPLOYEE'S MARIJUANA USE

Eight days after accepting a systems administration job with
Sacramento's RagingWire Telecommunications Inc. in 2001, Gary Ross
was fired for testing positive for marijuana.

The 43-year-old father of two admitted he smoked pot at home for back
pain, but explained it was legally prescribed by his doctor under the
state's Compassionate Use Act. His new bosses backed their decision,
however, by citing federal law that still criminalizes marijuana.

Five years later, the dispute shows no sign of losing steam as an
employment discrimination suit filed by Ross awaits a full hearing by
the California Supreme Court. Although oral arguments haven't been
set, a host of high-powered amici curiae have already stoked
expectations with hard-hitting briefs on both sides of the issue.

Their arguments could go a long way in helping the court decide
whether Ross' state-approved treatment regimen trumps an employer's
right to discharge employees for violating federal law.

While the state Supreme Court has held that the Compassionate Use Act
- -- approved by voters in 1996 -- provides an affirmative defense for
using marijuana as medicine, the U.S. Supreme Court has declared
medical necessity no exception to the federal Controlled Substances Act.

Last week, 10 state and national medical organizations and two
well-regarded disability rights groups took up Ross' cause by filing
two separate briefs in which they argued RagingWire violated the
state's Fair Employment and Housing Act by firing Ross for following
doctor's orders.

In addition, five state legislators took the highly unusual step of
filing a third brief, claiming that a 2003 bill they authored was
meant to require employers to accommodate off-duty, off-premises pot
use by employees with valid prescriptions.

All three briefs were filed -- at the request of Ross' attorneys --
to counter opposing arguments submitted earlier by RagingWire's own
heavyweight amici.

Sacramento's conservative Pacific Legal Foundation filed papers in
late July maintaining state law can't force employers to retain
workers whose judgment could be impaired by drug use.

And two other groups -- the Santa Clara Valley Transportation
Authority and the Western Electrical Contractors Association Inc. --
pointed out in separate briefs that employers could lose certain
state and federal funds or contracts if they condone pot use by employees.

Both the trial court and Sacramento's 3rd District Court of Appeal
ruled in Ross' case that employers aren't required to retain workers
who use federally banned drugs.

Jamerson Allen, a partner in Jackson Lewis' San Francisco office who
represents RagingWire, said Monday he couldn't comment about the
amici without his client's approval. He never called back.

But Joseph Elford, chief counsel of Oakland-based Americans for Safe
Access, who is co-counsel for Ross, said the amici's participation
proves the case involves an issue "that resonates nationally."

Elford was especially pleased that the legislators had taken a stand
because they authored Senate Bill 420, which three years ago
clarified when employers are permitted to prohibit medicinal pot use
by employees.

In their brief, former Sen. John Vasconcellos and current Assembly
members Mark Leno, Loni Hancock, Jackie Goldberg and Paul Koretz said
the legislation was meant to let individuals smoke pot at home, while
giving employers the power to banish it from the workplace.

"We believed that the voters did not intend for the Compassionate Use
Act to apply only to unemployed medical cannabis patients," Oakland
solo practitioner Robert Raich wrote on their behalf, "but to all
qualified patients, including those who could be productive members
of the workforce."

Ross' medical amici -- among them the American Medical Women's
Association, the California Nurses Association and the Berkeley-based
Drug Policy Alliance -- argued a variation of the legislators' theme.

Daniel Abrahamson, director of legal affairs for the DPA, accused
RagingWire of improperly intruding into a doctor-patient relationship
and forcing Ross to choose between his job and medical treatment.

The disability rights amici -- Protection & Advocacy Inc. and Equal
Rights Advocates -- made the further argument that the 3rd District's
decision would enable employers to deny jobs to medicinal pot users
without showing there would be any adverse impact on their businesses.

However, Deborah LaFetra, principal attorney for the PLF, said in
briefs that there's definitely a measurable impact on businesses.
Arguing for RagingWire, she said it has been proven that marijuana
impairs smokers' cognitive abilities, which exposes employers to
greater liability.

"History abounds with cases of employers found liable," she wrote,
"because their employees were driving vehicles, operating heavy
equipment or otherwise performing tasks made more dangerous by their
being under the influence of alcohol or drugs."

The high court might also be swayed by the Santa Clara Valley
Transportation Authority's warning that public agencies could be
denied federal and state grants if they don't prohibit pot use.

"If there is going to be a catastrophic loss of funding for these
agencies," Santa Clara VTA Assistant General Counsel Richard Katzman
wrote, "then that decision should be out in the open for the
Legislature or the electorate" to decide.

How much weight the high court will give the amici arguments in Ross
v. RagingWire Telecommunications Inc., S138130, isn't possible to
gauge, but the justices count on them for a third-party view of the issues.

At the very least, the amici have given the court a lot to think about.