The highly publicized debate regarding medical marijuana dispensaries in Los Angeles has focused on The California Supreme Court's decision in People vs. Mentch and the contention by Los Angeles City Attorney Carmen Trutanich and Los Angeles District Attorney Steve Cooley that this decision makes sales of marijuana to medical marijuana patients illegal.
Actually, that's not what The California Supreme Court concluded on Thanksgiving 2008. Instead, the court went through some truly embarrassing rhetorical gymnastics to conclude that providing marijuana to medical marijuana patients is not enough to qualify as a caregiver under The Compassionate Use Act of 1996.
If this ambush of both the spirit and letter of the law is not found to be in error, the courts will eventually conclude that providing marijuana is not providing for the health and safety of medical marijuana patients and, in complete and utter defiance of Proposition 215 and the will of the people, that marijuana is not medicine. A detailed discussion of the decision will be found at the end of this article, but first a little history about the case and the setting in which it occurred.
"If you don't like it, stay away and shut up"
So said Neal Coonerty in Good Times on 14 Oct 09, and if Santa Cruz had an official town motto, that most certainly should be it. Neil Coonerty is formerly a Santa Cruz City Councilmember, currently a Santa Cruz County Supervisor, and father of Ryan Coonerty who is currently a Santa Cruz City Councilmember and former mayor. Santa Cruz mayors are appointed by the city council.
It was under Santa Cruz County District Attorney Bob Lee that the foundation was laid for denying Roger Mentch a caregiver defense under California Health and Safety Code §11362.5 and for redefining a caregiver in terms so narrow as to conclude that providing marijuana to medical marijuana patients does not constitute providing for their health or safety.
Santa Cruz is not what it seems. While on the one hand holding up The Wo/Men's Alliance for Medical Marijuana (WAMM) as testament that it is Compassion Central and a haven for medical marijuana patients, on the other hand the City Attorney and District Attorney as well as The City Council are responsible for devastating assaults on both the spirit and letter of The Compassionate Use Act of 1996 as well as Measure K, a city initiative which declared marijuana enforcement to be the lowest priority and which mandated an oversight committee to monitor the police.
The Measure K oversight committee was stacked by the City Council with obstructionists, while the City Attorney successfully challenged and struck from the law the requirement that the police department provide information requested by the committee. This made any oversight by the committee impossible and the chair of the committee and another member resigned in disgust, calling it nothing but a rubber stamp for the police. Anita Henri, currently appointed to the committee, stated that she has "served on many boards and never felt less productive and more helpless."
Coincidentally, this past year the Santa Cruz City Council refused to grant the sick and dying members of WAMM an exemption (for one afternoon a year) to the prohibition on smoking in San Lorenzo Park. It should be noted that WAMM was having their annual fundraiser in the park, with a smoking tent for medical marijuana patients, long before the prohibition on smoking was instituted by the City Council.
Santa Cruz has been enacting increasingly draconian smoking bans throughout the city and making no exception for medical marijuana patients, even though San Francisco made such exception in 1999 and even though it was concluded by Dr. Donald Tashkin in 2005 at The University of California Los Angeles (UCLA) that those who smoke marijuana are less likely to get cancer than non-smokers.
Tashkin was the foremost proponent of the theory that smoking cannabis caused cancer and he designed the study to be the definitive study to prove this. The study concluded just the opposite.
Also, cannabis is an expectorant and bronchial dilator. It has a well-documented use for asthma going back well over a hundred years in this country. For asthma, inhaling is the only way to administer it. Miss New Jersey Georgine DiMaria recently made news discussing her use of marijuana for asthma.
Besides prohibiting smoking within 25 feet of public doors and windows, the Santa Cruz smoking ban also "eliminates smoking on city property, including the wharf and City Hall, its adjacent parking lots, all parks and the West Cliff Drive recreational path, benches and landscaping," and within a block of the main street, Pacific Avenue.
Not only is there no where in Santa Cruz to sit down and smoke a cigarette, or anything else, but it appears Santa Cruz does not want medical marijuana patients to participate in government or use city services such as parks and libraries. Certainly not those that need to medicate every few hours as needed and who need to smoke their medicine. Not even one day a year. One thing is for sure, reasonable accommodation for medical marijuana patients is not on the agenda.
Under the auspices of providing safe access to medical marijuana the City of Santa Cruz enacted ordinances in 2000 regarding the establishment of "medical marijuana providers" which were so restrictive (particularly the zoning) that it was not until 2005, nearly a decade after Proposition 215, that the first dispensary was licensed.
To date only two medical marijuana dispensaries have been licensed and the city declared a public health and safety emergency and passed a moratorium in June after receiving two completed applications and two requests for applications. Since then the city has extended the moratorium till February, in the meantime suspending processing of the submitted applications and banning smoking anywhere anyone would want to go.
Current regulations include public hearing and approval by the Planning Commission and City Council before a license is granted. The application can be denied at numerous points in the process for just about any reason.
Of the submitted applications, one has been withdrawn. The proposal to increase the "set-back" from the perimeter of residential property from 50 to 600 feet appears to be designed to prevent the approval of the other.
It is likely they will limit the number of dispensaries to the two currently licensed, which are relegated by zoning restrictions to industrial areas at the most remote edges of the town, in total and complete disregard for the convenience and safety of patients.
It should be noted that the Los Angeles City Attorney reports that West Hollywood, with a population of ~34,000, has four licensed medical marijuana dispensaries and a cap of seven. Meanwhile, Santa Cruz, with a population of ~56,000, has two licensed dispensaries and is poised to ban any more.
It should also be noted that the Santa Cruz Planning Commission was not interested in any input from Valerie Corral of WAMM.
In People vs. Mentch, the California Supreme Court ruled (a full dozen years after the passage of Proposition 215) that in order to legally provide marijuana to a medical marijuana patient the provider must, exclusive of and in addition to providing marijuana, also be consistently responsible for the housing, safety, or health of the patient.
Rather than prohibit sales, as claimed by Los Angeles District Attorney Steve Cooley and Los Angles City Attorney Carmen Trutanich, it narrows the definition of who can sell marijuana to a medical marijuana patient to the point that virtually no one can meet the standard.
While claiming to divine the intent of the framers as the narrowest possible interpretation, it completely ignores that California's medical marijuana law is the only one that allows the use of marijuana for "any other illness for which marijuana provides relief". In complete and utter defiance of the law and the will of the people, the court implies that providing marijuana is not providing for the health or safety of medical marijuana patients and lays the groundwork for a determination that marijuana is not medicine or safe.
It begins by citing (on page 9) the definition of a primary caregiver as found in Proposition 215:
This statutory definition has two parts: (1) a primary caregiver must have been designated as such by the medicinal marijuana patient; and (2) he or she must be a person “who has consistently assumed responsibility for the housing, health, or safety of” the patient.
Roger Mentch, while not perfect, was exactly the kind of person Proposition 215 was designed to protect. He was, by all accounts, a mensch. He grew for himself, a half-dozen-or-so other patients, and sold the surplus to a couple of local dispensaries. No one ever accused him of selling marijuana to anyone that was not a bona fide medical marijuana patient.
And he did more than just cultivate and provide marijuana. He took one patient to the doctor, provided housing for another, provided marijuana without charge on occasion, and did other things besides.
On the minus side, firearms and some psilocybin mushrooms were found during the raid. These latter were separate matters from medical marijuana, had no bearing on the appeal, and were not addressed by the California Supreme Court. However, being found guilty on the marijuana charges did result in "enhancements" to the other charges.
Rather than allow the jury to consider all the evidence pro and con, the Santa Cruz District Attorney stood logic and reason on its head to deny Mentch a caregiver defense. Quoting from People vs. Mentch, page 6:
Before trial, the prosecutor filed a motion in limine to exclude any references by counsel during voir dire, testimony, or closing argument to Mentch’s being a “primary caregiver” for Eldridge or Besson. The trial court granted the motion.
After Eldridge and Besson testified, the court concluded the evidence was insufficient to show that Mentch had provided primary caregiver services. Mentch argued in a brief to the court that a person could qualify as a patient’s primary caregiver whenever he or she consistently assumed responsibility for a patient’s health by providing medical marijuana upon a doctor’s recommendation or approval. The trial court rejected the argument."
It should be noted that footnote 3 of the paragraphs above states: "The Act extends immunity from state prosecution for cultivation or possession for sale to both qualified patients and their designated “primary caregiver.” (§ 11362.5, subd. (d).)" The Act referred to above is The Compassionate Use Act of 1996, also known as Proposition 215, also known as California Health & Safety Code §11362.5.
Since the court could not sabotage the law by declaring "sales" illegal per se, it goes through some truly extraordinary rhetorical gymnastics to define "caregiver" in a way that is absurd and strikes at the very heart of Proposition 215.
In doing so The Court commits two very serious errors. First, they essentially declare that cannabis is not medicine when they conclude that providing cannabis to patients is not providing for their health.
Second, they fail to consider that providing cannabis to patients is providing for their safety: because it is safer to obtain and use cannabis through a club or dispensary than from the street and/or gangs and/or organized crime; because cannabis is safer and more effective than most any pharmaceutical; and because cannabis acquired from a caregiver is more likely to be free of contaminants than cannabis purchased on the black market.
The court appears to confuse "or" with "and" when it argues on page 13 that "The words the statute uses — housing, health, safety — imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." In making this argument the court fails to note that the exact phrase is "housing, health, or safety" and that "or" means any one or combination.
The court does not explain why medical marijuana patients should be any more involved with the production and distribution of their medicine than pharmaceutical patients are with the production and distribution of pharmaceuticals. Nor does it examine why pharmaceutical sales are legal and sanctioned, while medical marijuana sales are not. Nor does it explain how the Attorney General can issue Guidelines in August of 2008, three months prior to publication of People vs. Mentch, which state: "In February 2007, the California State Board of Equalization (BOE) issued a Special Notice confirming its policy of taxing medical marijuana transactions, as well as its requirement that businesses engaging in such transactions hold a Seller's Permit."
By denying Mentch a caregiver defense during the initial trial, the Santa Cruz District Attorney was able to convict Mentch of both cultivation and possession for sale; a total of seven charges in all. While the jury was able to hear that he was a qualified patient, they were not able to hear instruction on a caregiver defense. Consequently he was found guilty.
Proving that Mentch was a mensch, the trial court suspended imposition of sentence and imposed three years' probation. Judge Stevens explicitly permitted Mentch to continue to operate The Hemporium and provide medical marijuana to his patients during the three years' probation.
On 18 Oct 2006 The California Sixth District Court of Appeal overturned the conviction of Mentch on grounds the jury was not allowed to hear evidence that Mentch was a primary caregiver stating: "Because there was sufficient evidence to support an instruction on the primary caregiver defense, the trial court erred by redacting all references to it in CALJIC No. 12.24.1. (See People v. Michaels (2002) 28 Cal.4th 486, 529"
It was immediately announced by Santa Cruz County District Attorney Bob Lee that, "The Attorney General informed us they intended to file a motion for appeal. Usually we ask them to appeal, but now they informed us." That would be California Attorney General Bill Lockyer.
Upon reconsideration of this decision, the California Supreme Court writes on page 11 of their 27 page decision:
The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.
Put that in your pipe and smoke it. It is nothing more and nothing less than a declaration that medical marijuana is illegal in California and that Proposition 215 is null and void. It has less logical integrity and foundation in reality than a treatise on how many angels can dance on the head of a pin.
To support this sophistry, the California Supreme Court cites The Attorney General's Guidelines which state: "“Although a ‘primary caregiver who consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is serving a health need of the patient,’ someone who merely maintains a source of marijuana does not automatically become the party ‘who has consistently assumed responsibility for the housing, health, or safety’ of that purchaser.” (Cal. Atty. Gen., Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) pt. II.B., p. 4.)"
Astonishingly, the court then concludes that when Mentch sold his overstock to dispensaries, he could not qualify as a primary caregiver, and then equates selling to a dispensary to selling on the street.
The decision repeatedly cites People ex rel. Lundgren v. Peron, but fails to note that Dennis Peron was not only author of Proposition 215, but that he was selling marijuana in a 5-story building at the time it passed, and that the campaign headquarters for Proposition 215 was on the ground floor of that 5-story building.
The proposition that cannabis is not only safer but more effective than pharmaceuticals is the very foundation of the medical marijuana movement. If this were not true there would be no medical marijuana movement.
Marijuana is also safer than street drugs and alcohol. California doctors report that about 10% of their patients use it for harmful dependence including alcoholism. The "side-effects" of alcoholism include delireum tremons, wet brain, cirrhosis of the liver, hangovers, black-outs, nausea, vomiting, loss of coordination, blurred vision, auditory and visual hallucinations, Jekyll/Hyde personality distortions, addiction, tolerance, and life threatening withdrawal.
It appears the argument that providing cannabis to patients is also providing for their safety was never made. It also appears that if the Los Angeles County District Attorney and the City Attorney were really interested in upholding both the spirit and the letter of the law they would be presenting the Los Angeles City Council with statutes designed to serve as a foundation for them to challenge the Mentch decision, rather than filibustering the council into accepting statutes that will set the stage for them to not only defend the Mentch decision but further attack and narrow Proposition 215 to the point it is meaningless.
Coincidentally, or not, similar judicial activism is taking place in Colorado. In the case of Stacey Clendenin, The Colorado Appeals Court determined that providing marijuana does not qualify as a "significant responsibility for managing the well being of a patient."
It appears neither the California Supreme Court nor the Colorado Appeals Court grok that marijuana = medicine and that providing medicine, particularly at risk of jail and financial ruin, is a "significant responsibility for managing the well being of a patient."
November 27, 2009
Santa Cruz County Drug Policy Examiner