State Courts

Cal NORML Release - Nov. 24, 2008 Cal Supreme Court Rules Prop 215 Caregivers Must Do More Than Just Supply Marijuana In a blow to medical marijuana providers, the California Supreme Court ruled that defendants are not entitled to a defense as Prop 215 caregivers if their primary role is only to supply marijuana to patients. The court unanimously overruled an appellate court decision in the case People v Roger Mentch", writing: "We hold that a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) alters this conclusion or offers any additional defense on this record." Full text of the decision may be found at http://www.courtinfo.ca.gov/opinions/documents/S148204.PDF Prop 215 defines primary caregiver to be the "individual designated by the [patient]... who has consistently assumed responsibility for the housing, health, or safety of that person." According to the Court, these words " imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." The Court concluded, " a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." The Court's ruling effectively limits the caregiver defense to relatives, personal friends and attendants, nurses, etc. In particular, it excludes its use by medical marijuana "buyers' clubs," retail dispensaries and delivery services. The remaining legal defense for medical marijuana providers is to organize as patient cooperatives and collectives, which are legal under SB 420. "The Mentch decision highlights the inadequacy of California's current medical marijuana supply system," said Cal NORML coordinator Dale Gieringer. "The law needs to allow for professional licensed growers , as with other medicinal herbs." - D. Gieringer Cal NORML -- Dale Gieringer - [email protected] California NORML, 2215-R Market St. #278, San Francisco CA 94114 -(415) 563- 5858 - www.canorml.org

ASA's web page on the San Diego case: http://www.AmericansForSafeAccess.org/article.php?id=4405 For Immediate Release: October 16th, 2008 California Supreme Court Denies Review of San Diego Medical Marijuana Case Advocates prepared to pursue litigation against counties refusing to uphold state law San Francisco, CA -- The California Supreme Court refused to review a landmark medical marijuana case today that will require all counties to implement the state identification program. The County of San Diego filed suit against the State of California in February 2006, arguing that state law was preempted by federal law. That argument was rejected by the San Diego Superior Court in December of 2006 and was also later denied by the Fourth District Court of Appeals on July 31, 2008. The lawsuit challenged the validity of the state identification card program, as well as the foundation of California's medical marijuana laws, but the decisions by both lower and appellate courts found that the ID card program and state law remained valid and does not violate the state constitution. "The San Diego case is now final under California law," said Joe Elford, Chief Counsel of Americans for Safe Access, who argued before the appellate court on behalf of patients. "The courts have made clear that federal law does not preempt state law relating to medical marijuana and that local officials must comply with California's medical marijuana laws." In a unanimous opinion earlier this year, the Court of Appeals ruled that the federal Controlled Substances Act "signifies Congress's intent to maintain the power of states to elect 'to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country' by preserving all state laws that do not positively conflict with the CSA." Americans for Safe Access (ASA), along with the ACLU Drug Law Reform Project, defended the interests of patients in fighting San Diego's appeal to the State Supreme Court. Both organizations successfully intervened as defendants in the lawsuit in August of 2006, while the case was still being litigated in the Superior Court. After the appellate court ruling, ASA put all counties that had not yet implemented the ID card program on notice of their obligation to implement state law, in particular the state ID card program, which both assists law enforcement and affords greater greater protection to patients. "We expect the remaining holdout counties to implement the medical marijuana card program immediately," continued Elford. "And if they continue to refuse to comply with state law, we will call upon the courts to require them to do so." San Diego County was originally joined by San Bernardino and Merced Counties, but Merced chose not to appeal, opting instead to implement the state ID card program and a Sheriff's policy on medical marijuana patient encounters. In an unusual move, the City of San Diego voiced its opposition to the County's lawsuit by filing an amicus 'friend of the court' brief in December 2007, siding with the Attorney General and medical marijuana patient advocates. For further information: California Court of Appeals ruling from July 31, 2008: http://www.AmericansForSafeAccess.org/downloads/San_Diego_Appeal_Ruling.pdf ASA's web page on the San Diego case: http://www.AmericansForSafeAccess.org/article.php?id=4405

[Courtesy of National Advocates for Pregnant Woman & Drug Policy Alliance] For Immediate Release: May 12, 2008 For More Info: Lynn Paltrow 917-921-7421 or Tony Newman 646-335-5384 South Carolina Supreme Court Reverses 20-Year Homicide Conviction of Regina McKnight Decision Recognizes Research Linking Cocaine to Stillbirths Based on "Outdated" and Inaccurate Medical Information COLUMBIA, SC – Today, the South Carolina Supreme Court ruled that Regina McKnight did not have a fair trial when she was convicted in 2001, becoming the first woman in South Carolina to be convicted of homicide by child abuse as a result of suffering an unintentional stillbirth. McKnight was arrested in 1999, several months after she experienced a stillbirth at Conway Hospital. McKnight’s conviction was based on the jury’s acceptance of the scientifically unsupported claim that her cocaine use caused the stillbirth. McKnight had no prior arrest history and even prosecutors agreed that she had no intention of harming the fetus or losing the pregnancy. Nevertheless, upon conviction she was given a twenty-year sentence, suspended to twelve years in prison with no chance for parole. She was projected to be released in 2010. The medical community has strongly opposed McKnight’s prosecution and conviction. From the beginning, leading South Carolina and national medical, public health, and child welfare organizations and experts have opposed the prosecution and conviction. These organizations—represented by National Advocates for Pregnant Women and the Drug Policy Alliance, with South Carolina counsel Susan Dunn included the South Carolina Medical Association, the South Carolina Nurses Association, the South Carolina Association of Alcoholism and Drug Abuse Counselors, and the South Carolina Coalition for Healthy Families—argued in an amicus (friend of the court) brief that women do not lose their rights to a fair trial upon becoming pregnant and challenged the state’s evidence that cocaine use or anything else that McKnight did or did not do caused the stillbirth. In 2002 counsel for Ms. McKnight challenged the constitutionality of using homicide statutes to prosecute women who experience stillbirths. On appeal, a bare majority of the State Supreme Court upheld the conviction and the new interpretation of the state's homicide law. The Court held that a pregnant woman who unintentionally heightens the risk of a stillbirth could be found guilty of “extreme indifference to human life” homicide. Under this decision a conviction for homicide is permitted on any evidence that a pregnant woman engaged in activity “public[ly] know[n]” to be “potentially fatal” to a fetus. The U.S. Supreme Court refused to review the decision. Today’s ruling focused on the question of whether Ms. McKnight received a fair trial and concluded that Ms. McKnight's counsel was "ineffective in her preparation of McKnight's defense through expert testimony and cross-examination." The decision also indicated that the medical and scientific basis for her prosecution and that of other women in the state is based on outdated and inaccurate medical information. “Significantly, the opinion acknowledges that current research simply does not support the assumption that prenatal exposure to cocaine results in harm to the fetus, and the opinion makes clear that it is certainly 'no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.'” said Susan K. Dunn, counsel for amicus. “This decision puts prosecutors across the state on notice that they must actually prove that an illegal drug has risked or caused harm—not simply rely on prejudice and medical misinformation.” This ruling addressed a petition filed on behalf of McKnight seeking a judicial review to determine whether the person is imprisoned lawfully or should be released from custody. The petition must show that the court ordered the imprisonment based on a legal or factual error. In McKnight, the factual error was accepting a causal link between McKnight’s cocaine use and her stillbirth. The legal errors were not calling medical expert as witnesses who could refute that link, failing to investigate the medical evidence the state's witnesses relied on and that was based on outdated scientific studies, and failing to challenge the court's confusing and contradictory explanations to the jury of what "intent" Ms. McKnight had to have. “Ms. McKnight is one of more than 500 women in South Carolina who experience stillbirths each year, and in many of those cases, medicine just can’t determine the cause,” said Brandi Parrish, coordinator of the South Carolina Coalition for Healthy Families. “It is a tragedy that Ms. McKnight has been in prison for nearly eight years for a crime she did not commit. Families in South Carolina are not helped by treating stillbirths as crimes and wasting hundreds of thousands of tax dollars to imprison innocent mothers.” The medical and public health groups also raised concerns about the consequences of South Carolina’s policy of arresting pregnant women who experience drug problems. In their brief, they cited the fact that threatening pregnant women with jail time deters them from seeking prenatal care and other vital services, as has been the case in South Carolina since the Whitner ruling in 1997 that originally permitted prosecution of pregnant women under state child endangerment charges. Ms. McKnight is represented on the petition by C. Rauch Wise of the American Civil Liberties Union of South Carolina Foundation, Inc., and Matthew Hersh and Julie Carpenter of the law firm Jenner & Block for the DKT Liberty Project.

[Courtesy of Americans for Safe Access] For Immediate Release: January 24, 2008 Contact: ASA Chief Counsel Joe Elford (415) 573-7842 or ASA Media Liaison Kris Hermes (510) 681-6361 CA Supreme Court Denies Medical Marijuana Patients' Right to Work Advocates to call on state legislature to prevent discrimination Sacramento, CA -- The California Supreme Court ruled against medical marijuana patient Gary Ross today in his fight against employment discrimination. In a 5-2 decision, the Supreme Court claimed that Ross could not rely on the Fair Housing and Employment Act or the state's medical marijuana law to prevent discrimination at the workplace. The Court did indicate in its decision that the state legislature had not adequately clarified employment rights of medical marijuana patients. "Obviously, we are very disappointed by today's decision," said Joe Elford, Chief Counsel of Americans for Safe Access (ASA), the medical marijuana advocacy organization that argued the case. "However, we remain hopeful that the legislature will come to the aid of patients by preventing the sort of discrimination that is likely to occur from such a decision." The dissenting opinion, written by Justice Joyce L. Kennard, stated that the ruling "has seriously compromised the Compassionate Use Act, denying to those who must work for a living its promised benefits." Despite a clearly worded amicus "friend of the court" brief filed in support of Ross in July 2006 by all of the original co-authors of SB 420 (state legislation that helped to define the rights of medical marijuana patients), the Supreme Court failed to believe that it was the intent of the entire legislature. Advocates assert that they will seek a different response from the state legislature in the form of a bill introduced in the next few weeks. Gary Ross, a 45-year old disabled veteran and a medical marijuana patient living in Carmichael, California, is at the forefront of a landmark employment case, with significant ramifications for patients in California and across the country. Ross was fired in September 2001 for failing an employer-mandated drug test while working as a systems engineer for RagingWire Telecommunications, Inc. "All I am asking is to be a productive member of society," said plaintiff Gary Ross. "I was not fired for poor work performance, but for an antiquated policy on medical marijuana,” continued Ross. “This practice allows employers to undermine state law and the protections provided for patients.” Ross's physician recommended cannabis for chronic back pain that resulted from injuries sustained during his military service. But Ross's employer, RagingWire Telecommunications, refused to make an exception to its policy of terminating anyone testing positive for marijuana. Ross filed suit after he was fired in 2001, arguing that RagingWire illegally discriminated against him because of his condition. However, a Sacramento Superior Court, and then the Third Appellate District Court both rejected his argument. In October 2005, ASA appealed to the California Supreme Court on behalf of Ross. Strong public support has been shown for Ross and the plight of California patients to seek and maintain employment. Since it began recording instances of employment discrimination in 2005, ASA has received hundreds of such reports from across California. Companies that have either fired patients from their job, threatened them with termination, or denied them employment because of patient status or a positive test for marijuana, include Costco Wholesale, UPS, Foster Farms Dairy, DirecTV, the San Joaquin Courier, Power Auto Group, as well as several construction companies, hospitals, and various trade union employers. Further information: Today's California Supreme Court decision: http://www.safeaccessnow.org/downloads/Ross_Ruling.pdf Photo of Gary Ross: http://safeaccessnow.org/img/original/Ross_pic3.jpg Legislative-based amicus brief: http://www.safeaccessnow.org/downloads/ross_legislative.pdf Review legal briefs and more about the Ross v. RagingWire case here: http://www.safeaccessnow.org/Ross