California Medical Marijuana Clubs Illegal, Says Appeals Court; Feds File Civil Suit Against Six Clubs; Legal Defense Fund Organized
On December 12, the California 1st District Court of Appeal ruled that medical marijuana "clubs" cannot legally sell the drug despite the passage in 1996 of Proposition 215, California's medical marijuana initiative. The ruling will go into effect in 30 days unless stayed by further appeals (Stephen Schwartz, "Medical Marijuana Clubs Illegal," San Francisco Chronicle, December 13, 1997, p. A1; Katherine Seligman, "Court clamps down on pot club," San Francisco Examiner, December 13, 1997, p. A1; Reuters, "Marijuana Clubs Illegal, California Court Rules," New York Times, December 14, 1997, p. A42; "Cannabis Buyers' Club Isn't Legal Under California's 'Medical Use of Marijuana' Law," Criminal Law Reporter, December 24, 1997, p. 1267) (see "Medical Marijuana Measures Pass November 5th Ballots in California and Arizona ..." NewsBriefs, December 1996).
State Attorney General Dan Lungren, who opposed Proposition 215, said state agents will move against the marijuana clubs if they do not voluntarily close within 30 days. "We believe [the ruling] gives proper guidance throughout the state of California,'' Lungren said. "Had the people of the state of California believed that they were voting for the purpose of establishing Cannabis Buyers' Club-like operations around the state, they probably would have defeated this operation.''
The court ruling stems from a raid on San Francisco's Cannabis Buyers Club by state agents that shut down the facility in August 1996 ("State Agents Raid Cannabis Buyers' Club in San Francisco," NewsBriefs, September 1996). After Proposition 215 was adopted in November 1996, San Francisco Superior Court Judge David Garcia ruled that the club could reopen and held that Proposition 215 allows such nonprofit organizations to be designated as a "primary caregiver." Lungren appealed Garcia's ruling (see "Medical Marijuana Club in San Francisco Reopens Under Protection of Proposition 215," NewsBriefs, February 1997).
Cannabis club operators said they will challenge the Court of Appeal ruling. Dennis Peron, founder of the Cannabis Buyers' Club in San Francisco and author of Proposition 215, said, "The court has nullified the will of the voters as expressed in the success of Prop. 215" (Erin McCormick, "Cannabis Club vows to stay open," San Francisco Examiner, December 14, 1997, p. D1).
The key issue in the ruling was whether, under Proposition 215, a buyers' club may be legally considered a "primary caregiver, who has consistently assumed responsibility for the housing, health, or safety of that person." Presiding Justice J. Clinton Peterson, ruled: "The intent of the initiative was to allow persons to cultivate and possess a sufficient amount of marijuana for their own approved medical purposes, and to allow `primary caregivers' the same authority to act on behalf of those patients too ill or bedridden to do so." However, he said patients are not allowed to designate buyers' clubs as their primary caregiver. If that were allowed, Peterson said, "Any marijuana dealer in California [could] obtain a primary caregiver designation from a patient before selling marijuana, and ... thereby evade prosecution."
In a separate opinion, Justice J. Anthony Kline supported the argument that the club was not a primary caregiver. However, he said, "The right to obtain marijuana is, of course, meaningless if it cannot legally be satisfied." He warned that the ruling would make marijuana impossible to obtain by seriously ill Californians.
On January 9, the U.S. Justice Department filed civil lawsuits seeking injunctions against six California medical marijuana clubs and their staff. Operators of the clubs have promised to fight the lawsuit (Press release, "Federal Civil Suits Filed Against California Cannabis Clubs," U.S. Department of Justice, January 9, 1998; Sabin Russell, "California Pot Clubs Targeted," San Francisco Chronicle, January 10, 1998, p. A1; Lisa M. Krieger, "U.S. acts to close pot clubs," San Francisco Examiner, January 10, 1998, p. Ben Chamy and Jeff Israely, "Feds file suit to close cannabis clubs," Oakland Tribune, January 10, 1998, p. A10; Mary Curtius and Maria L. La Ganga, "U.S. Launches Drive to Close Marijuana Clubs, Los Angeles Times, January 10, 1998)
Michael Yamaguchi, the U.S. attorney for Northern California, whose office filed the civil lawsuits, said the government's action is a "measured response" to what he characterized as repeated federal violations by the California clubs. DEA agents made undercover marijuana buys at the six clubs the government is seeking to shut down, Yamaguchi said. "The issue is not the medical use of marijuana, it is the persistent violation of federal law," Yamaguchi said. "Under our system of federalism, laws passed by Congress cannot be overridden or supplanted by state law." He did not rule out the possibility of filing criminal charges against clubs or their operators, or civil lawsuits against other clubs in California.
Clubs and operators included in the lawsuit are the San Francisco Cannabis Cultivators Cooperative (CCC), operated by Dennis Peron; the Flower Therapy Medical Marijuana Club (San Francisco), operated by John Hudson, Mary Palmer, Barbara Sweeney, and Gerard M. Buhrz; the Oakland Cannabis Buyer's Cooperative, operated by Jeffrey Jones; the Santa Cruz Cannabis Buyers Club; the Ukiah Cannabis Buyers clubs, operated by Cherrie Lovett, Marvin Lehrman, and Mildred Lehrman; and Marin Alliance for Medical Marijuana, operated by Lynette Shaw.
Senator John Vasconcellos (D-Santa Clara), chair of the Senate Public Safety Committee, said, "I'm particularly angry that a president who won this state by a smaller margin than voters approved Proposition 215 has the temerity to send his federal law enforcement into our state to undo the decision of our citizens. If there was a mistake made by the voters in 1996, it wasn't to pass 215; it was to elect a president who has so little regard for the wishers of the voters." On January 12, Vasconcellos announced a program to implement Proposition 215 in good faith, including a medical marijuana summit with invitations to Governor Wilson, Attorney General Dan Lungren (a gubernatorial hopeful), and U.S. Attorney General Janet Reno (Press release, "Vasconcellos to Convene Statewide Summit on Distribution of Medical Marijuana," Senator John Vasconcellos office, January 12, 1998; "State Senator Wants a Marijuana Summit," Orange County Register, January 13, 1998).
Club operators vowed to continue operations. "We'll devise a plan to help people [get marijuana]," Peron said. Almost all 17 clubs in California that serve an estimated 6,300 patients have promised to seek new ways to distribute medical marijuana, including clandestine distribution (Lisa M. Krieger, "Marijuana clubs vow to continue operations," San Jose Mercury News, January 10, 1998, p. D3; Lisa M. Krieger, "Cannabis organizations say 'it's business as usual," Houston Chronicle, January 18, 1998, p. 22A).
A coalition of supporters have organized a legal defense fund for medical marijuana patients, caregivers, and dispensaries. To make donations, contact California NORML: Medical Marijuana Patients' and Caregivers' Fund, 2215-R Market St., #278, San Francisco, CA 94114. Checks should be made payable to NORML Foundation: MMPCF. Contact Dale Gieringer - Tel: (415) 563-5858, E-mail: firstname.lastname@example.org.
U.S. Attorney Michael Yamaguchi - (415) 436-7200.
California Sen. John Vasconcellos - State Capitol, Room 4061, Sacramento, CA 95814, Tel: (916) 445-9740, E-mail: email@example.com.