Friday, November 11, 2011

Turd Stew Update


Sorry I've been lagging a bit on this update.  I've been out of the office the past few days crusading for truth and justice.

This past Tuesday, plaintiffs published the text of the latest lawsuit challenging the Obama Administration's crackdown on California's Medical Marijuana Program.  As previously reported here, a coalition of medical marijuana growers, patients and collectives is seeking injunctive relief to block enforcement of federal marijuana laws as they relate to individuals who comply with California's voter-approved medical marijuana system.

Attorneys Matthew Kumin, David Michael and Alan Silber filed the case of Marin Alliance for Medical Marijuana v. Eric Holder, et al. in all 4 of California's federal judicial districts.  Read the 30-page motion in support of the preliminary injunction here.

A preliminary injunction is an order from a judge to stop doing something until the legal issues can be more definitively decided by a court.  In this case, the plaintiffs are asking a federal judge to order the DEA to cease raids against medical marijuana growers and collectives until the law can be more clearly settled.

As anticipated, plaintiffs are relying on at least 5 distinct arguments in support of their injunction: collateral estoppel, the 5th / 9th Amendments, the 10th Amendment, the 14th Amendment and the Commerce Clause of the US Constitution.

Bear with me as a try to break these arguments down --

Collateral estoppel is the idea that a party to a lawsuit shouldn't be allowed to change his or her mind to the detriment of someone else.  Once you've staked out a position on an issue in a case, you can't shift your position if by doing so you screw over the other party.  Once you have argued position X and other parties act in reliance on your position, you are "estopped" from later arguing position Y.

In the 2009 case of Santa Cruz v. Eric Holder, the Justice Department assured a federal judge that the DEA would not expend federal resources to prosecute medical marijuana providers who act in compliance with state law.  In reliance on that officially stated position, marijuana dispensaries proliferated across the Golden State.  Cooperatives invested time, money and resources to expand their operations under the faith that they would not be attacked by a flip-flopping DEA.  Without warning or explanation, the Justice Department abruptly shifted its position re: medical marijuana within the past couple months.  Long story short: dispensaries got shafted by acting in reliance on the officially stated position of the DEA's lawyers. 

The 5th / 9th Amendment arguments relate to the "fundamental rights" to ameliorate pain and to act upon a doctor's recommendation.  Among other rights enshrined in the 5th Amendment is the right to Due Process, which has been interpreted to ensure "fundamental rights".  Fundamental rights are those rights which aren't explicitly enumerated in the Constitution, but which the Framers must have assumed exist without needing to be specifically mentioned.  Fundamental rights include things like the right to raise your own children, the right to enter into contracts and the right to travel freely throughout the country.  The 9th Amendment ties in with the 5th Amendment because it states that citizens hold rights beyond those expressly enumerated in the Constitution. 

When the courts need to decide whether or not a right is "fundamental", they look at whether or not the right is "deeply rooted in the nation's history and tradition" and whether or not the asserted right is "implicit in the concept of ordered liberty".  Plaintiffs are now arguing that the right to take medicine and to act under a doctor's recommendation are "fundamental" and that they are implied under the 9th Amendment.  

The 14th Amendment assures, among other things, equal protection under the laws.  It prohibits arbitrary distinctions and capricious enforcement where those distinctions are not founded on some "rational basis".  The argument here is based on the fact that, among the 16 states that allow for the medical use of marijuana, California is seemingly being singled out for heavy-handed enforcement.  California's system is more stringent and less permissive than other states, where marijuana consumption is allowed at dispensaries (Oregon) and where for-profit sales of marijuana is permitted (Colorado), which creates the impression that the current crack-down is political in nature and not "rational".

The Commerce Clause and 10th Amendment arguments are outlined under "The Turd Stew Thickens", below.

This is certainly going to be an up-hill fight for the plaintiffs, but a preliminary injunction isn't out of the picture.  It's foreseeable that a progressive California Federal District Court could block enforcement until such time as the laws can be more clearly established.  The Commerce Clause arguments have been roundly rejected before, but the collateral estoppel angle is novel.  Stay tuned for updates as they become available.