PROPOSITION S PROCEEDS APACE

In November 2002, 63% of San Francisco voters voted "Yes" on Proposition S,
a one-sentence policy question: "Should the city explore the possibility
of growing and dispensing medical cannabis?"

Two civilian organizers of the task force that promulgated Proposition S,
Wayne Justmann and Michael Aldrich had been proprietors at medical
marijuana dispensaries. The measure was put on the ballot "in light of the
recent DEA crackdown on local medical cannabis clubs," by four city
Supervisors: Mark Leno (now a state Assemblyman), Matt Gonzales (now
President of the Board), Sophie Maxwell, and Chris Daly.

Following the passage of Prop S, at least five reform organizations, with
the Drug Policy Alliance in a leading role, took part in meetings to
discuss implementation strategies. The DPA hired a professional campaign
consultant, Ellie Sue Schafer, and rented space at the Unitarian Church on
Franklin St. and Geary Boulevard to hold a "Community Forum on
Implementation of Proposition S."

At the forum, held July 22, the five leading candidates for Mayor
- --Supervisors Tom Ammiano and Gavin Newsom, Treasurer Susan Leal, former
Supervisor Angela Alioto, and former Police Chief Anthony Ribera-- tried to
outdo each other in expressing support for Prop S. Questions from the
audience reflected a willingness to challenge federal law. Robyn Few of
Americans for Safe Access asked Candidate Alioto, "As Mayor, would you be
willing to stand up to the federal government --to really fight the federal
government-- if they came here to rip out our gardens and close our clubs?"
Alioto replied yes, but --she believes in "victory through coalition-building."

San Francisco District Attorney Terence Hallinan, who is running for
re-election, made one of the few concrete proposals when he suggested that
under Prop S the city could authorize cannabis clubs to give "caregiver"
status to proficient growers, who would then cultivate crops commensurate
with the clubs' needs, i.e., a certain amount per documented patient.

Kamela Harris and Bill Fazio --two former assistant DAs who are trying to
unseat Hallinan--also asserted their support for Prop S, as did Public
Defender Jeff Adachi.

Were all the above-named individuals and institutions conspiring to violate
federal law? Absolutely not, according to featured speaker Gerald Uelmen,
Dean of the University of Santa Clara Law School. This is how he explained
the legal situation:

"...We're in a head-on collision with the federal authorities who say that
there is no exception for medical use under the federal Controlled
Substances Act and all cultivation, all possession, all distribution is
illegal under federal law. How do we get around that? The first approach we
tried was to say, 'There should be an exception for medical necessity.' We
got shot down on that one in the U.S Supreme Court two years ago. But in
issuing that decision, the US Supreme Court made it very clear that they
were not deciding any of the questions of the constitutionality of the
federal law. Now those issues are working their way up through the courts
and will be heard and decided by the 9th Circuit Court of Appeals this
fall. There are three fully-briefed, waiting-to-argue cases pending before
the 9th Circuit. I'm counsel in two of them: the Oakland Cannabis Co-op
Case, which was remanded back to Judge [Charles] Breyer and is now in front
of the 9th Circuit. And the WAMM case from Santa Cruz --a motion to get
their marijuana back after the DEA raid last September... There's also the
[Angel] RAICH case, brought on behalf of patients growing their own for
their own use, without the involvement of a club.

"I am very optimistic about our chances in the 9th Circuit, because these
cases are all going back to the panel that decided the first Oakland
Cannabis case... [Chief Judge Schroeder, Judges Reinhardt and Silverman]
who aren't afraid of being reversed by the U.S. Supreme Court. They will do
what's right. And I'm optimistic that we'll get a favorable decision from
them and may be on our way back to the U.S. Supreme Court with these
constitutional issues.

"...We're making arguments that will appeal to the conservative
justices... The essential argument being made in all of these cases is
that the power of Congress to regulate intra-state commerce --that is just
going on within a state-- is limited to situations where intra-state
commerce has substantial effect on interstate commerce... Congress has made
a finding in the CSA that all drug trafficking affects interstate commerce.
We're trying to persuade the courts that you don't look at the broad
activity, you look at the narrow class of activity that the state of
California has defined in the Compassionate Use Act. That is, cultivation
and possession of marijuana by patients, which has no effect on interstate
commerce at all.

"It's very important that the model we're taking to the U.S. Supreme Court
and to the 9th Circuit is a model in which we can say, 'There really is no
impact on interstate commerce from these activities.'

"There's another issue raised in the OCBC case, and it was a very prominent
issue in the prosecution of Ed Rosenthal... The issue of immunity: whether
there is an exception under the federal CSA for local officials who are
engaged in the enforcement of a law related to controlled substances. The
argument we're making before the 9th Cricuit is that this broad immunity
clause provides that if a local government authorizes the enforcement of
Prop 215 by local officials, even if what those local officials are doing
violates the federal controlled substances act, they are immune, because of
what the Act itself says...

"When this was presented to Judge Breyer in the Rosenthal case, he kind of
read the immunity clause right out of the law by saying, 'You can only be
immune if the activity in which you're engaged is in compliance with the
CSA. In other words, you only get immunity if you don't need it.' A
ludicrous interpretation of the law, and I hope the 9th circuit will see it
that way... [A favorable ruling by the 9th Circuit] would open the door to
government-authorized programs in which the people running the programs
actually are officials and we can say they are engaged in the enforcement
of a law related to controlled substances. They are enforcing California's
Compassionate Use Act by ensuring that only patients who have the requisite
medical approval are possessing, cultivating and using marijuana.

"The other issue on the front burner right now is the potential liability
of physicians for making recommendations under the CSA. We had a wonderful
win in the 9th Circuit in Conant v. Drug Czar where the court declared that
physicians are protected by the First Amendment, they have the First
Amendment right to discuss all treatment alternatives with their patients,
and the government cannot limit that right by saying 'You can't talk to
your patients about medical marijuana.' The [government's appeal] may be
headed to the U.S. Supreme Court as early as this fall. And that will be a
very important case, because if we lose that one, it's over. But I'm very
optimistic, because of this court's track record on First Amendment issues,
that we can win that case in the U.S. Supreme Court. And I think a win on
that case will put us in a very good position when these other
constitutional issues find their way up to the court after the 9th Circuit
has ruled on them.

"In terms of implementing Prop S , there are really only three models to
work from. Model A, the model used by the Oakland Cannabis Co-op and by the
WAMM Collective in Santa Cruz, is a true collective, where the patients are
all members of an organization collectively working together and they all
come under the joint user concept. Model B would try to utilize the
exception under federal law for medical research. That is the model being
used in San Mateo. The problem with that is, the only pot you can use in a
government research program is the government-grown pot that comes from
their plantation in Mississippi, which has significant drawbacks in terms
of medical quality... And Model C is the Whiskey Rebellion. Back in the
1790s, when the federal government first decided they were going to tax the
production of whiskey, the farmers in Western Pennsylvania said 'Fuck you,
federal government!' And George Washington sent in the federal troops and
put down the rebellion. I think that model really has very little to
recommend it. I think we really should struggle to come within whatever
exceptions we can find in both the state and federal law."

The WAMM Model

The Drug Policy Alliance has hired Mike and Valerie Corral, the widely
admired leaders of the Wo/man's Alliance for Medical Marijuana to consult
on political and horticultural matters in connection with Prop S. At the
forum Mike advised, "Most of the cost in a WAMM style community garden
would be donated. Patients would donate labor and the city would donate
the garden space and an office... Assuming each patient uses about three
pounds a year, the requirement for a 25-patient garden would be 75 pounds.
Production costs would be $250 per pound, $13.50 an ounce, and 50 cents a
gram. That's for a patient-run garden where the patients do all the work
and everything is on a donation basis... Remember, the WAMM model is based
on outdoor growing. The more indoor growing you do, the more your costs go
up dramatically.

"The city has greenhouse space available, and growing in a greenhouse is
about the same as growing outdoors. There are a few things you have to
change in that environment, but the cost would be negligible.... Even in an
urban environment, with the cooperation of your neighbors and the local
authorities, people can grow outside on apartment decks, they can grow in
their backyards... Indoor growing might make sense for security reasons,
or for an individual grower, but if you're growing for a large collective,
it makes far more sense to be growing outdoors in the light of the sun. You
can set up your garden so that patients in wheelchairs can have full access
to the plants and be gardeners themselves. We've learned in WAMM that
exposure to the plants can be greatly beneficial to patients. So the idea
we're proposing is as much hands-on patient participation as possible,
which in turn reduces the security issues..."

to be continued

The Ballad of Grinspoon and Guy

Sativa is a pretty plant

It grows tall and green

With 68 cannabinoids

And the spicy-sweet terpenes

Guy says I can market this

I'll put it in a spray

Grinspoon says let's grow our own

Why should people have to pay?

Guy says some prefer it neat

And some don't like the high

Grinspoon says the government

Won't even let 'em try

Euphoria's a side effect

Could do a lot of good

Guys says I'm all for ya, please

Don't let me be misunderstood

We're dealing with a system that

Is not about to change

Grinspoon says why not

Reinvent the grange?

And let a thousand farmers grow

Every helpful strain...

Guy says my approval wasn't easy

Or cheap to almost obtain

Sativex is a useful drug

It bears the Bayer cross

Grinspoon shakes the bottle

With a subtle sense of loss

"You're right from your side

And I am right from mine

We're just one too many mornings

And a thousand miles behind..."