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  Fear and Loathing at Supreme Court

Posted by CN Staff on December 12, 2004 at 08:49:30 PT
By Ben Rice 
Source: Santa Cruz Sentinel 

This past week, I traveled to Washington, D.C., to attend the Supreme Court hearing in which the legal fate of WAMM, the 8-year-old Santa Cruz medical marijuana cooperative, will be decided. The case argued was Raich v. Ashcroft, a medical-marijuana case out of Oakland. Like WAMM, Angel Raich had successfully argued in federal court in San Francisco that she was entitled to an injunction against the attorney general of the United States, John Ashcroft, and his Drug Enforcement Agency.
The injunction in both cases prohibited the federal government from interfering with the patient’s cultivation, possession and use of medical marijuana. While WAMM’s case was the first brought at the trial-court level, the Raich case was the first ruled on and thus was the case that went to the Supreme Court on appeal, leaving WAMM waiting for the court’s ruling. If Raich wins, WAMM wins. Should Raich lose?Having been a lawyer for WAMM for many years, I knew how important the Supreme Court argument on Nov. 29 was going to be for WAMM’s founders, Valerie and Michael Coral, and for the nearly 200 patients in the cooperative. A little background: On Sept. 5, 2002, I was visiting a client in the county jail when the sergeant in charge came, found me and explained that a raid by federal agents was occurring at the WAMM garden and, "I had better get out there because the WAMM members were blockading the federal agents onto the land and the agents were calling the sheriff’s office for backup."WAMM had been operating in the open under California’s Compassionate Use Act of 1996 and had established itself with local government and law enforcement as a legitimate medical-marijuana organization. On the day of the DEA raid, the Santa Cruz Sheriff’s Office hadn’t been told by the DEA that the raid was going to occur, so they were not particularly happy at the prospect of "rescuing" the heavily armed agents from the outraged patients who were refusing to move out of the agents’ way as they tried to leave the garden with a year’s supply of medicine. The standoff was concluded peacefully only after Val, who with Michael was arrested and in DEA custody, used a DEA cell phone and spoke to members and asked them to move.Later that day, Val and Michael were released from custody and have since lived with the knowledge they could face prosecution for the next five (or less) years. Conviction for these two could lead to a decades-long prison term under the federal sentencing guidelines.For the past 10 months since its success in federal court, WAMM has been enjoying its unique position as the only legal medical-marijuana cooperative and garden in the country. The injunction has allowed the sick and dying WAMM members to grow, process and use medical marijuana without fear of interference. The success has been bittersweet as 22 members have died since the raid and everyone has known that the day would come when this very conservative Supreme Court would have the final say. And yet, maybe we can win, we told ourselves.The legal argument made in the Raich and WAMM cases was that "state rights" barred the application of the federal Controlled Substances Act to medical-marijuana patients who were using this medicine at the recommendation of their doctors under California law. The federal government argued that it can create and enforce certain laws because the conduct they seek to regulate has an impact on other states and thus permits federal regulation under the Interstate Commerce clause power Congress has under the Constitution.Ironically, our hope is that arch conservative justices like Chief Justice Rehnquist and Clarence Thomas might support California and the other nine states that have medical-marijuana laws under this states’ rights theory.Decisions by the Supreme Court since the WAMM raid invalidating federal laws dealing with gun possession near schools and with violence against women had given us more reason to hope. The Supreme Court has also left intact a lower federal court’s decision that stopped federal investigations into doctors who have been recommending marijuana to their patients as violating the doctors’ and patients’ First Amendment rights.Given the importance of the ruling, it was decided I should attend the Raich argument. I was admitted to the Supreme Court Bar and headed to Washington.The morning the Raich case was to be argued dawned cold and nearly clear. The court was to hear the case at 10 a.m. but, even with a reserved seat, I wanted to get to the court early to try and get the best seat possible as a large number of attorney spectators were expected. I walked 30 minutes from my hotel to the Supreme Court building and watched the light gradually illuminate our nation’s centers of power. Arriving at 7 a.m., I found that I was the second attorney in line, but a group of at least 50 citizen spectators had been in their line since as early as 3 a.m.When the justices took the bench, the courtroom was packed and felt charged. Justice Stevens presided and noted that the very ill Chief Justice Rehnquist would vote after reading all briefs and transcripts from the oral argument. (Justice Rehnquist is the third justice to suffer cancer. Might that help, many of us have wondered?)Each side was given 30 minutes to present its case before the court. The government’s attorney began his argument and was immediately interrupted, first by Justice Stevens and then by Justice O’Connor, who questioned him skeptically concerning his contention that the medical-marijuana patient’s conduct in this case constituted significant economic activity that would impact other states, thus allowing federal intervention. When Justice Ginsburg seemed skeptical, too, I began to think a victory was possible.But then it was Boston University Law Professor Randy Barnett’s turn to argue for Raich, and the beating began. Justices Breyer, Kennedy, Souter and Scalia took turns attacking, and the day suddenly seemed darker and heavier to me. The final insult was Justice Scalia’s snide reference to WAMM as "that 200-person commune" out there in California — invoking the stereotypical picture of ’60s-type hippies laying around "smoking dope."There is some reason to cling to hope here. If Justices Stevens, O’Connor and Ginsburg were revealing their inclinations and if the Chief Justice agrees with the states’ rights claim and Justice Thomas (who never speaks at these hearings), who is also a "states’ rights" champion, agree, then Raich, WAMM and the many thousands of people who are benefiting from medical marijuana will win.The Raich case will be decided by the court sometime in the spring or early summer of next year. Should it be lost, it is important to remember that the decision will not overturn California’s Compassionate Use Act.Individual patients will not be at risk from California authorities and will most likely never need to fear arrest by federal authorities who, one hopes, are more preoccupied with hunting down terrorists. Nor will doctors need to worry about being investigated. But people with the best of motivations and intentions, like Val and Mike Corral, will indeed be at risk — a scenario too awful to contemplate.Ben Rice is a Santa Cruz attorney. Source: Santa Cruz Sentinel (CA)Author: Ben Rice Published: December 12, 2004Copyright: 2004 Santa Cruz SentinelContact: editorial santa-cruz.comWebsite: http://www.santacruzsentinel.com/Related Articles & Web Sites:WAMMhttp://www.wamm.org/Angel Raich v. Ashcroft Newshttp://freedomtoexhale.com/raich.htmPictures From WAMM Protesthttp://freedomtoexhale.com/eventpics.htmShattered Grass? - Metro Santa Cruzhttp://cannabisnews.com/news/thread19998.shtmlPot Group Wins Legal Roundhttp://cannabisnews.com/news/thread18708.shtml

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Comment #11 posted by FoM on December 13, 2004 at 09:24:36 PT
runruff
Would you tell me what you think was learned by communal living? I believe many good things came from an experience like that. I believe giving, sharing, being non judgmental were a few qualities that must have come from a commune experience.
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Comment #10 posted by runruff on December 13, 2004 at 09:15:06 PT:
communes
I lived in two different communes during the sixties and have many friends in the famous Rainbow family and From the original Hog Farm with Wavy Gravy. I know and have met people from influental families such as the Du Puonts. I know school teachers, Doctors, Attorneys and an assortment of mixed middle and lower middle class people. It would be impossable to stereotype the average commune member.Namaste 
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Comment #9 posted by paulpeterson on December 13, 2004 at 06:55:26 PT
Where were you on 9/5/02?
On 9/5/02, at exactly the same time as the WAMM bust, I was in Federal District Court in Chicago arguing for a preliminary injunction as well-in a case with the exact same commerce clause argument that is now in the US Supreme Court. The judge asked me what kind of case this was and I spoke in the crowded courtroom that this was a "marijuana case" (boy was he embarrassed to even hear that word).In late 2003, in "dicta" the judge stated that "obviously" I would lose on that argument. I then did a motion to dismiss that claim, stating for my part that "obviously" I would be better off awaiting case law precedent from the 9th Circuit Court of Appeals (from WAMM & Raich, that is, which had already been briefed and heard), which "obviously" would have a more liberal bent. My claim was dismissed, of course, without any argument from the DOJ.The very next week the 9th Circuit weighed in. Right now I am very glad that I did not pursue my own claim in the conservative 7th Circuit.One thing that I find interesting here, is that no one has mentioned recently that the 9th Circuit Court of Appeals, en banc, unanimously affirmed the 2-1 decision from the panel. I believe the US Supremes will be more likely to affirm when the entire 9th Circuit ruled on the case first.Best wishes to this appeal, that controls the future of MM for states other than those identified as having active programs (like Illinois, where we have a world-class MM law some 26 years old). Over and out. PAUL PETERSON
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Comment #8 posted by FoM on December 12, 2004 at 20:33:17 PT
siege
Thank you. I always felt that those who lived in communes were very intelligent. What you said makes perfect sense to me.
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Comment #7 posted by siege on December 12, 2004 at 20:07:53 PT
Commune
They talk about Commune the ones I have seen, The largest part of these people where every accomplished they all had from 4-6 or more years of college backing them, they where not the dope heads that we where called by some, ***they could not find work in there fields of expertise.*** Only the very Ignorant talk about them badly, I know four that are working attorneys and have been for years, to bad he did not have one of them in front of him at the time. 
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Comment #6 posted by runruff on December 12, 2004 at 16:44:41 PT:
That perverbial dark place.
It's always easy to see where the light shines and where it doesn't and those who keep their heads there.
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Comment #5 posted by global_warming on December 12, 2004 at 14:17:04 PT
Not bad for an attorney
I guess this article, like recent articles, shows that even an attorney can feel compassion, and how this marijuana issue is splitting our society down the middle.Attorneis, much like those black robed justices that are prevailing over this current marijuana matter, have largely contributed to this war on people, they, like their law enforcement wannabe cousins, are the ones who built and sustain this human persecution and callous disregard of human freedom.The clock http://www.drugsense.org/wodclock.htm, keeps ticking and time just keeps rolling along, but that trumpet in my ear is playing a sour note, for the angels are not happy with what is going on down here on Earth.Those numbers, so much money, our tax dollars, go ticking bye, and with each heartbeat, I realize with each breath, how both justice and hope are out of my reach.They say that the Federal government this year has spent 18 billion dollars to this moment, fighting the war on drugs, and the state has spent 19 billion dollars, all of this money comes from our taxes, and all of this money is not being spent on peace or doing good, certainly not for the work of God. These numbers above do not consider the toll and expense of the 1.5 million people that have been arrested for drugs this year, the cost to these people has not been accurately calculated, the lost jobs, broken families, the disgrace and further subjugation into unholy and dark places that the children of our God have to endure.Before I forget the original point, the attornies,judges, and law enforcement personnel that have each taken a slice of life from these enslaved souls will someday have to be revealed and digested with our tears that will flow everlasting.One of my hopes, is that people, like you and me, will awaken and see this injustice and come with baskets of fruits and salve to comfort, they will come to open the underground prisons, break down the walls and admit the light of day, the light that shines in all of hearts, we will receive and pardon those souls that have been living in this horrible nightmare we call reality or current society.Praying for the common light,
gw
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Comment #4 posted by FoM on December 12, 2004 at 13:40:16 PT
Hope
I never saw a commune. I never personally met anyone that had lived in a commune but I could see where they were coming from particularly in the self discovery times of the 60s. People that don't like the 60s for what it stood for don't seem to understand what was trying to be accomplished. It didn't matter if it worked or not it was the trying something that makes me respect their efforts. Communes had bad things but I am sure they had many good things about them too.
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Comment #3 posted by Hope on December 12, 2004 at 13:34:53 PT
FoM
Make that "self-righteous AND ignorant"! Just because they represent themselves as "know alls" about everything, one would be very ignorant to rely on such an assumption. Sadly, many do. 
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Comment #2 posted by FoM on December 12, 2004 at 13:17:58 PT
Commune
Why do people hate what the 60s was? Why is something bad just because it isn't what the majority believes is the way to live? I get so tired of self righteous politicians.
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Comment #1 posted by kaptinemo on December 12, 2004 at 12:43:40 PT:

If Scalia really said that
"...that 200-person commune". If he truly did say that, he has demonstrated tremendous ignorance of the entire matter. This outrage should have been in the daily 'nooz', but of course we only received the 'condensed' version. Only the terminally ill, often with maladies incurring excruciating pain, are allowed membership in WAMM. And 'Justice' Scalia makes such a comment? These are evil times indeed of we expect those who harbor such ignorance and lack of compassion determine the amount of compassion society is allowed to express. It's too late for recusal - but never too late for impeachment.
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