POT GOES TO THE POLLS Both Sides of Medical-Marijuana Ballot Proposal Agree Passage Wouldn't Settle Legal Issues A wheelchair-using multiple sclerosis patient and her driver are pulled over for speeding in Ann Arbor. When officers approach, they see two marijuana cigarettes on the console between the front seats. But the patient shows the officers a note from her doctor, which recommends that she use marijuana to ease her symptoms. If Ann Arbor voters pass a measure to decriminalize medical use of marijuana on Nov. 2, will this hypothetical patient still be arrested? Some law enforcement officials and legal experts say absolutely. The drug is illegal under federal and state law, and local officials say Ann Arbor officers can enforce state law, even if local laws change. But other observers, legal experts and proponents of the measure say a new law will safeguard those patients, since most marijuana-related arrests are made by state and local officials. The two sides agree Ann Arbor's law likely would wind up in court, as have many cases in other parts of the country. As in other states, many agree that even if a local law is passed, medical marijuana will remain an underground movement as officials, patients, doctors and growers fear arrest and prosecution for openly using, endorsing or recommending its use. Patients, growers and doctors stay as anonymous as possible. As a matter of policy, municipal marijuana programs won't keep patient records, or anything that could be subpoenaed. But even then, jurisdictional issues are unclear. Police in towns with new marijuana laws say they "probably" won't arrest patients; Ann Arbor is not revealing how it will handle the issue. And then there's the issue of how to fill a "prescription;" where will Ann Arbor patients get their medical marijuana? "Probably the same old place they've always gotten it," said Timothy Beck of the Detroit Coalition for Compassionate Care, which initiated Detroit's successful marijuana referendum. The California Experience In 1996, California voters became the first to pass a medical marijuana law that removed criminal penalties for qualifying patients who grew, possessed or used marijuana. The law gave cities such as Santa Cruz and San Francisco, which previously passed municipal laws, the backing of state law. In San Francisco, citizens can apply for a voluntary identification card by submitting a physician recommendation letter to the public health department. The department charges $25 and provides forms for the notes. Patients can get their marijuana at buyer's clubs. Some of the clubs have Web sites; many are known about through word of mouth. San Francisco has 18, according to officials. Oakland and Berkeley have four and two, respectively. There are physicians willing to recommend marijuana use for their patients, although cities do not keep any records on them or the patients themselves, said Dr. Joshua Bamberger. Even so, people are still arrested from time to time. And although state and local agents are mostly no longer a threat, federal agents can, and do, make arrests. In Santa Cruz, a grower's collective called the Wo/Men's Alliance for Medical Marijuana grows and distributes marijuana to more than 250 sick members. The group started after founder and director Valerie Corral was arrested in 1992 for growing five marijuana plants. Corral was in a car crash in the early 1970s that caused a brain injury, leaving her suffering from as many as five grand mal seizures a day. She discovered using marijuana kept the seizures at bay. She challenged her arrest on the grounds of medical necessity and won. That same year, 77 percent of Santa Cruz voters passed its medical marijuana law. Corral was arrested again in 1993, but the district attorney threw out the case and said the prosecutor's office had no intention of pursuing it in liberal Santa Cruz, where an unsympathetic jury would be hard to find. When California's state law passed, it legitimized the city's laws, recalled Corral. Law enforcement stayed largely off the backs of medical marijuana users and of WAMM, whose membership was growing. Corral and her husband, Mike Corral, were officially recognized by the city in 2000 as medical marijuana providers. Santa Cruz Sheriff Mark Tracy was elected in 1994. His administration has been more sympathetic than previous ones, Corral noted, and that makes a big difference. "If it's a clear case where they're using it for medical marijuana, we just walk away," Tracy said. But he adds there are a couple of cases every year where people are obviously not using marijuana for medical reasons. San Francisco has roughly 7,000 people in its program, said Dr. Joshua Bamberger, San Francisco's medical director of housing and urban health. Not all physicians will recommend it, he said. Bamberger said he has had patients ask him for letters for everything from pain to shortness of breath to anxiety. He has given a recommendation in only two cases. It's not clear what Ann Arbor-area physicians will do. A survey of 522 San Diego physicians showed about 25 percent were willing to recommend it. The Washtenaw County Medical Society has not taken a position on the issue, said president-elect Dr. Stan Reedy. A key difference in the momentum of medical marijuana movements, many experts and observers agree, is a having a state law. Whether it gives enough of a literal or symbolic change in law, it has allowed groups like WAMM to run their distribution programs with less fear, Corral said. No Arrests With a Doctor's Note? According to the Marijuana Policy Project, a Washington, D.C.-based legalization advocacy group, state and local police make 99 percent of marijuana arrests. Take local police out of the equation and that goes a long way toward protecting people who use marijuana for multiple sclerosis, cancer, AIDS-related wasting, and a host of other diseases, reasons spokesman Bruce Mirken. "The question is how local authorities will choose to apply it," he said. 'It's not going to stop state police or the state attorney general from going after people if they want to. But they tend to focus on major traffickers. So it probably does provide some substantial protections." "The obvious effect is no longer will the authorities that have the most direct contact with citizens in Ann Arbor be able to arrest them," said Randy Barnett, a constitutional law professor at Boston University. "People will still be subject to federal prosecution. But (federal authorities) have other priorities and other demands on their resources." On the other hand, Mirken notes, "Even in California, where the law is absolutely unambiguous, there have been some cases where cops and local prosecutors have chosen to ignore the law." But the Ann Arbor law won't apply to state police. Detective Lt. Garth Burnside of the Michigan State Police said the measure won't affect his officers. "If someone hands me a note from a doctor saying they can have marijuana, they're still getting arrested," he said. Of 503 drug charges in Livingston and Washtenaw last year, 150 were marijuana charges, he said. And marijuana remains illegal under federal law. "...This initiative would not impact our efforts," said U.S. Drug Enforcement Agency spokesman David Jacobson. "Medical marijuana initiatives have unfortunately become a Trojan horse for marijuana-legalizing groups exploiting the health situations of seriously ill people to promote their own agenda. Marijuana is still illegal." In a California case, a federal judge ruled in favor of two women whose medical marijuana plants were seized by the U.S. Drug Enforcement Agency. The women sued the federal government on the grounds that the Controlled Substances Act, which authorizes the feds to enforce drug laws, was unconstitutional as applied to marijuana. An appeals court ruled in favor of the women, citing an unconstitutional exercise of the commerce clause. The federal government has appealed to the Supreme Court, and the case is expected to be heard in December or January. The outcome of that case could have repercussions on city initiatives like the one Ann Arbor voters will decide on. Barnett, the Boston University law professor, is representing the two women before the high court this winter. He said if the court rules on the basis of the commerce clause, that would eliminate federal prosecution even in states that have no medical marijuana law. That greatly increases the power of municipalities, because they control their police departments, he said. But Temple University law professor Mark Rahdert, an expert on constitutional law and federal jurisdiction, disagrees. "It think that's a little similar to the situation we had last spring in San Francisco where the registrar of marriage licenses was not enforcing state law regarding heterosexual marriage," he said. "I don't think it's generally within the province of a local entity to decide which laws it will or will not enforce. If there's a state law that prohibits the medical use of marijuana, it's incumbent on city authorities to (enforce it). They can be directed to do so by proper authority from the state, and a local initiative simply can't override that." City attorney Stephen Postema won't comment on what directions he intends to give Ann Arbor Police until after the election, he said. The Michigan attorney general's office has already sent a letter to Ann Arbor officials warning them the new amendment is in conflict with state law. Police Chief Dan Oates is concerned about the additional burden his officers will have, in proving someone is using marijuana for medical reasons. "We'll have to prove that it's not," he said. Beyond that, he said he is waiting for legal guidance from the city attorney and administration. "Law enforcement in California has been left in a situation where it becomes very complicated," said Tracy, the Santa Cruz sheriff. "The best way to put it is, this issue is still evolving and with each change ... we've tried to get good legal advice and move forward within the parameters of the law. But I will say it has been very difficult." Keeping the Issue Alive If the measure does pass, city officials say anyone could sue to have the amendment overturned. Even if it stands, a 1977 court case may have set legal precedent for city law enforcement to refer marijuana violations to other jurisdictions. In that case, the court ruled that local law enforcement could not be prevented from enforcing state laws by local ordinance or charter amendment. It also said they could not be prevented from referring a case for prosecution. But proponents say the day Michigan voters will face a question about medical marijuana is not far off. Plans are for a ballot question in the 2006 election. Beck, who led the effort for Detroit's medical marijuana ordinance amendment that passed in August, said there are already state lawmakers planning to introduce a medical marijuana bill. He acknowledges it likely doesn't stand a chance in Michigan's House and Senate. But he predicted it will legitimize future efforts for a state referendum. Proponents hope it will be more than symbolic. "What we really believe . is they are not going to mess with people who are truly sick," Beck said. "What we have done, is we have protected really sick people." Many people will be watching the issue closely. "It will be interesting to see how this plays out," said Ann Arbor criminal defense attorney John Shea. "It's partially a way to get a workable law on the books. But it's partially also a way for them to keep the point alive. They want the debate, they want people to be thinking about this."