Why We Lost & What We Can Do About it & more

When I first contemplated opening the Inland Empire Patients Health and Wellness Center, I was aware that Riverside’s zoning ordinance didn’t permit medical marijuana collectives that dispensed marijuana. However, I felt deeply that patients were entitled to have access to this medicine under Prop. 215 as why would the voters of California have approved it if they didn’t want patients to have reasonable access. 

In fact Prop. 215 did say that as it encouraged state government “to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” Notice it says “all patients” – not just patients in cities or counties that haven’t banned it.

 

Before opening the collective I spoke with many respected, seasoned and competent attorneys who all agreed that the idea a city could overturn a state permitted activity by zoning its implementation out of existence is farfetched. The rejection of that idea was not the idle speculation of a handful of inept lawyers, but was shared by hundreds of lawyers up and down the state.

On the other side, were the lawyers that I saw as hustling for police and law enforcement terrified that medical marijuana would lead to legal  marijuana and the end of their annual $20 billion taxpayer funded marijuana prohibition full employment program. I recognized that they too were respected, seasoned and competent attorneys and that there were a lot of them as well.

Unfortunately, the California Supreme Court agreed that they were right and the attorneys that advised patients were wrong.

Apparently the people of California encouraging the state to develop some kind of medical marijuana distribution system is not enough for the California Supreme Court.  Rather the Supreme Court in their continuing rejection of a humane and rational interpretation of Prop. 215, behaved like they did in Ross vs. Raging Wire where they said employers are free to fire employees who use marijuana medicinally under California law even if they are not impaired on the job.

Common sense would have it that the voters of California never could have intended that a person be fired from a job for doing something that voters had legalized, but common sense has not been  the hallmark of many of this court’s rulings when it comes to marijuana.

According to the Court good intentions specified by the voters is not enough. The initiative must specifically enumerate what could be done to achieve the goal of “safe and affordable distribution.” If it doesn’t, well than it certainly is a nice thought on the part of the voters but it really doesn’t mean very much. 

Ditto SB 420. This well-meaning but still pussy-footed piece of legislation specified that it was the intent of the legislature in enacting SB 420 to:

(2) Promote uniform and consistent application of the act among the counties within the state.

(3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.

Once again good intentions are not enough to keep cities and counties from undoing what the legislature permitted because the legislature didn’t say they couldn’t do it. With a straight face the California Supreme Court ruled that just because the legislature didn’t say cities couldn’t ban what the legislature said can be done, then it’s perfectly okay for cities to repeal a state law by banning its implementation under their zoning ordinances.

The legislature specifically stated they wanted “uniform and consistent application of the act.” It probably never dawned on the legislature that cities and counties would come up with this loopy proposition which the Supreme Court would uphold that cities could overturn through a zoning ordinance an activity the legislature had specifically said should be uniformly promoted and consistently applied. 

According to the Supreme Court the legislature need not specifically state that cities could ban a legislatively permitted activity in order for them to ban it, but that the legislature must specifically state cities could not ban if they didn’t want them too. I think the last sentence needs to be read twice for the ultimate meaning of this to sink in. If the consequences weren’t so tragic, it would be laughable. 

The Court keep using words like “expressly” or “explicitly” to degrade the credibility of the people and state legislators to provide reasonable access to medicinal marijuana through Prop.215 and SB 420. According to the court unless the people or the legislature “expressly” and “explicitly” say how they want whatever is they want to be done, it’s all meaningless feel-good gibberish.

If you read the decision, this same reasoning permeates every rejection of every pre-emption argument that state law pre-empts local law raised by Inland Empire Health & Wellness Center. Since Prop. 215 and SB 420 did not “expressly” and “explicitly” prohibit banning, the Supreme Court says it’s OK to ban no matter how much the bans turn Prop. 215 and SB 420 on their heads.

The use of byzantine legal mumbo-jumbo as a pretext to undo the obvious intent of the voters is exactly the kind of stuff that makes people distrust our courts and elected representatives.

So why did the court side with this preposterous argument presented by Riverside against patient access? I believe the answer can be found in the amicus briefs that were filed.

Amicus briefs are arguments filed in support of one side or the other by groups or individuals that are not a party to the case. In addition to reaffirming the legal arguments of the side they support, they may also present new arguments.  One of the most important aspects of amicus briefs is that they show the Court the type and extent of community support for each side.

Footnote 5 on page 9 of the published decision took note that Amicus curiae briefs filed on behalf of Riverside were submitted by (1) the League of California Cities and the California State Association of Counties (League of California Cities et al.), (2) the California State Sheriffs Association, the California Police Chiefs Association, and the California Peace Officers‘ Association (California State Sheriffs‘ Association et al.), and (3) the City of Los Angeles.

The only amicus brief filed on behalf of patients was submitted by Americans for Safe Access (ASA).  

Here we have organizations representing every city and county in the state, organizations representing every police officer and sheriff in the state and the state’s largest city all filing briefs backing up the arguments of Riverside.

Our side had one rather obscure (at least to the Court) medical marijuana patient’s group filing the only amicus brief on our behalf – not exactly a show of overwhelming community support especially compared to the inexorable and prodigious community support for deciding the case in Riverside’s favor.

Laws are subject to interpretation and that is what courts do. They interpret the law from whatever perspective they might have and I would imagine an onslaught of amicus briefs from cities and police organizations might have an outsize influence on that perspective.

The arguments of our lawyer and ASA were not so far out in left field that the Supreme Court could summarily reject them. The proposition that cities could not ban a state permitted activity is not an off-the-wall position. Legions of lawyers argued that position in a multitude of court cases. The court scoreboard was actually in our favor with only one appellate court ruling cities could ban and two that they could not.

It is not that the Supreme Court didn’t know about the other appellate court decisions concluding cities couldn’t ban, but they probably felt they had to allow cities to ban because of the overwhelming show of support from cities and police throughout the state of California. The lack of any meaningful community input on our side made their decision less problematic as they chose to ignore and trivialize the impact of their ruling on patient access. 

The justices did not get to the Supreme Court based on their anti-establishment opinions, but through judicial restraint in rulings that do not upset the apple cart.

I believe the lack of amicus briefs in support of medical marijuana patients’ rights was the Achilles heel of our case. With the literal avalanche of community support for Riverside’s interpretation and essentially no community support for the patient’s side, it is not surprising that the court bent over backwards to accommodate Riverside’s interpretation even to the point of totally ignoring the rulings against bans by two other Courts of Appeal. 

There is a multitude of reasons why there was such a paucity of amicus briefs on our side, but whatever the reasons, the lack of these supporting filings with the court told the justices loud and clear that there was little community support for patients to have access in their local communities. I have no idea if amicus briefs submitted on our side would have won the day, but it is hard to see where they could have made it any worse.

WHAT WE CAN DO ABOUT IT

The lack of amicus briefs on our side is indicative of one of the major problems facing our movement as a whole. Other than the vast majority of patients sitting on their butts and doing nothing, our inability to forge coalitions within our own community and with organizations outside of our community has been our greatest downfall. 

The coalition formed between law enforcement, elected officials and chambers of commerce is a juggernaut that can crush any and all in its relentless quest for control and power. It’s not that they cannot be quelled – they can as we have seen in the passage of Prop. 215, SB 420 and the landslide of public support for medicinal marijuana as well as outright legalization. The question is how can we consistently leverage that support in order to attain the political power and clout to match them? 

We can obtain that kind of political power by working through the political system and forming coalitions and alliances with other groups and organizations. To accomplish that will require our involvement in the political system that has resulted, so far, in the election of politicians who are lapdogs for the police/drug war industrial complex.

This will take time and this will take money, but the process has been started with the formation of Brownie Mary Democratic Clubs. BMDCs are building coalitions with many different groups – from environmental to labor to gay to Hispanic to health care and more. Our community supports them and their communities will support us – that’s how it works. And supporting these groups is easy to do as it also just happens to be the right thing to do.

The difference between what has been done in the past and what BMDC is doing is that it will now be done through community organizations aligned with the dominant political party in California rather than through non-partisan local community organizations.

Although the BMDC has been around for less than year, we had a wonderful “La Quinceañera” at the 2013 California State Democratic Convention where BMDC staffed a booth in the convention exhibit hall along with the Coalition for Cannabis Policy Reform. Almost three thousand convention delegates saw BMDC was there supporting the Democratic Party. Most exciting is that 167 convention delegates signed up to form a Democratic Statewide Hemp and Cannabis Caucus.

Two resolutions submitted by BMDC were passed by the Riverside County Democratic Party. One called on President Obama to (l) allow Colorado and Washington’s marijuana legalization initiatives to go forward with no federal interference, (2) end the federal police raids in medical marijuana states and (3) appoint a commission to look into reforming our nation’s marijuana laws. This resolution was introduced at the California Democratic Convention last April.

Our newest resolution calling on our state legislators to enact statewide medical marijuana licensing requirements and regulations was passed in May by the Riverside County Democratic Central Committee and is officially supported by four Democratic clubs and two dozen members of the Democratic State Central Committee.

In July these resolutions will be before the Executive Board of the State Democratic Party where they are given a good chance of passage. BMDC will be there to make the presentations why the resolutions should become part of the official policy statements of the California Democratic Party.

BMDC members staffed phone banks in the November 2012 election on behalf of local Democratic candidates, were present at regional Democratic meetings, attended candidate fundraisers, were the featured speakers at three Democratic Clubs, participated in monthly Central Committee meetings and more. Democratic activists and elected officials are becoming aware that an organization working within the political system on behalf of patients and marijuana law reform is gaining significant support and with that comes political clout.

We are getting into the room with the big girls and boys, but to get noticed in that room takes time and takes money as in YOUR TIME and YOUR MONEY. It is time YOU threw down the gauntlet and took up the challenge so that our branches of our government – legislative, executive and the courts - treat us with respect and deference. You don’t get that respect and deference just because you deserve it, you have to EARN IT.

YOU are an important part of our ability to EARN that respect and clout. YOU can do that by going to www.browniemaryclub.org and support this new and bold organization with your hard-earned money by making a donation or even better signing up for an automatic monthly donation.

If you are a Democrat you can also join the BMDC. If you are not a Democrat (and you don’t want to become one), then do the work to form similar organizations in your political party and work with your party’s leaders to protect the rights of medical marijuana patients and support marijuana law reform.

No more legislative meaningless gestures, no more Governor vetoes and no more Supreme Court decisions that make a mockery of the voters of California. Although our movement is ostensibly about marijuana, there is a deeper current – a current that calls for openness, common sense, fairness, tolerance, compassion and respect for the individual in a government that has all too often been corrupted in the interest of the rich and powerful. Marijuana has the power to do that, but for marijuana to do that, it needs help and specifically needs YOUR help.

Forward thinking supporters gave Brownie Mary the marijuana for the brownies she delivered to AIDS patients in San Francisco’s hospitals. Now the Brownie Mary Club needs forward thinking supporters to provide the financial resources to engage effectively and successfully in the political process to re-establish patient access and end marijuana prohibition. Please go to www.browniemaryclub.org  and make that donation now.

I have been contacted by several organizations that are looking for proud patients who are willing and would actually like to be out in the public eye about their use of marijuana. Out in the public eye in this case means speaking before various social and civic organizations as well as being featured in state and local media.

Patients of all ages are being sought exhibiting any of the physical and/or mental ailments so successfully treated with cannabis. For more information, send me an email, lanny@marijuananews.org or call me at 760-799-2055.

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