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Wo/Men's Alliance for Medical Marijuana (WAMM)
The facts about: the County of Santa Cruz et. al. vs. Gonzales et. al

 

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Important Documents
 
The Complaint
  WAMM Order (.pdf)
  Motion for Preliminary Injunction

  Judicial Notice Request
  WAMM Protocols and Guidelines

Meet the Plaintiffs

  More about the Plaintiffs

  Their Declarations

  1.   Valerie Corral

  2.   RIP Eladio V. Acosta (of cancer)

  3.   Jennifer Lee Hentz

  4.   Harold F. Margolin

  5.   Levi Castro - Quadriplegic &  business
      owner More soon...

  6.   RIP Dorothy Gibbs
      (of Post-polio complications)

  7.   RIP James Daniel Baehr

  8.   RIP Michael Cheslosky
      (of AIDS/Bone Cancer)

     

Supportive Pleadings

  Arnold S. Leff M.D.

  Earnest H. Rosenbaum M.D.

  Harvey L. Rose, M.D.

  Neil Flynn, M.D.

  Robert Brody, M.D.

 

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BINGHAM McCUTCHEN LLP

Frank Kennamer (SBN 157844)

neha nissen (SBN 190848)

LAURI SCHUMACHER (SBN 217506)

TROY SAURO (SBN 224097)

Three Embarcadero Center

San Francisco, California  94111-4067

Telephone:  415.393.2000

Facsimile:  415.393.2286

 

Attorneys for WAMM Plaintiffs

 

 

Gerald Uelmen (SBN 39909)

Santa Clara University School of Law

500 El Camino Real
Santa Clara, California 95053

Telephone:  408.554.5729

Facsimile:  408.554.4426

 

Attorney for County of Santa Cruz
and WAMM Plaintiffs

 

Additional Counsel Listed on Signature Page

 

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

county of santa cruz, California; City of santa cruz, california; Valerie Corral; Eladio V. acosta; james daniel baehr; Michael cheslosky; jennifer LEE hentz; dorothy gibbs; harold F. margolin; and Wo/men’s alliance for medical marijuana

 

Plaintiffs,

v.

Alberto Gonzales, Attorney General of the United States; JOHN B. BROWN III, Acting Administrator of the Drug Enforcement Administration; John P. Walters, Director of the Office of National Drug Control Policy; and 30 UNKNOWN Drug Enforcement Administration AGENTS,

Defendants.

Case No.:_________________

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF plaintiffs’ MOTION FOR preliminaRY injunctION

 

Date:              
Time:              
Place:             
Judge:            

 

 


 

I.                   INTRODUCTION

The federal government has embarked upon a campaign to prevent seriously and terminally ill patients in the State of California from cultivating and using medication that alleviates their pain and prolongs their life; that medicine is medical marijuana.  Federal Drug Enforcement Administration (“DEA”) agents have conducted at least eight medical marijuana raids in California, seizing medical marijuana and harassing the patients who use it.  On September 5, 2002, the DEA raided the site of Plaintiff Wo/Men’s Alliance for Medical Marijuana (“WAMM”), a collective composed of seriously ill patients -- the vast majority of whom are terminally ill -- and seized the medical marijuana of its members, some of whom are Plaintiffs in this action (“Patient-Plaintiffs”). 

For such patients, marijuana is the best, and in some cases, only medication available to treat their symptoms.  Seizure of their medical marijuana jeopardizes their health and subjects them to severe, disabling pain in violation of their fundamental rights to ensure bodily integrity, to ameliorate pain, to consult with their physicians and act on their recommendations, and to control the circumstances of their own deaths.  Plaintiff WAMM and Patient-Plaintiffs seek injunctive relief to halt future violation of these constitutional rights. 

In addition, federal interference with the patients’ access to medical marijuana in violation of the Compassionate Use Act of 1996, which legalizes physician-recommended medical marijuana use by sick and terminally ill patients in California, violates principles of federalism.  Under its “police power,” the State of California and its political subdivisions, including Plaintiff County of Santa Cruz, have broad authority under the California Constitution to legislate for the public health and welfare, as does Plaintiff City of Santa Cruz.  Plaintiffs County and City of Santa Cruz have implemented the Compassionate Use Act through regulations and measures that support their citizens’ personal use of medical marijuana when recommended by a licensed physician.  Defendants’ actions impermissibly undermine the authority of local and state governments to exercise their sovereign powers.  Accordingly, Plaintiffs City and County of Santa Cruz move for injunctive relief to halt federal interference with their ability to regulate for the health and welfare of their residents.

Although the federal government purports to act under color of the Controlled Substances Act (“CSA”), the CSA provides no authority to disrupt WAMM’s lawful activities.  Plaintiff WAMM and the Patient-Plaintiffs cultivate marijuana entirely within California.  They do so exclusively for personal, medical use pursuant to physician recommendation.  They do not purchase or sell marijuana, nor do they take it across state lines.  The CSA, which targets drug trafficking and distribution that impact interstate commerce, provides no authority for federal interference with WAMM’s activities.  Therefore, Plaintiff WAMM and its Patient-Plaintiffs seek injunctive and other relief to redress previous and prevent further federal interference with their wholly intrastate, non-economic activity. 

II.                factual background

A.                 WAMM and Its Patients

Plaintiff Wo/Men’s Alliance for Medical Marijuana (“WAMM”), is a collective located in Davenport, California, in Santa Cruz County.  Declaration of Valerie Corral at ¶ 10.  WAMM is composed of seriously ill patients who cultivate marijuana for their medical use pursuant to the Compassionate Use Act of 1996.  Id. at ¶ 13.  In addition to – and indeed part and parcel with – cultivating medical marijuana, WAMM provides community support to very sick individuals, most of whom are terminally ill.  Id. at ¶ 18; Declaration of Arnold S. Leff, M.D. at ¶¶ 24, 25; Declaration of James Daniel Baehr at ¶ 2-3; Declaration of Eladio Acosta at ¶ 2; Declaration of Jennifer Lee Hentz at ¶¶ 1, 29; Declaration of Dorothy Gibbs at ¶¶ 4-5; Declaration of Harold F. Margolin at ¶¶ 6, 8-9; Declaration of Michael Cheslosky at ¶ 1.

Plaintiff Valerie Corral founded WAMM with her husband and primary caregiver, Michael Corral.  Corral Decl. at ¶ 10.  Plaintiffs Valerie Corral, Eladio V. Acosta, James Daniel Baehr, Michael Cheslosky, Jennifer Lee Hentz, Dorothy Gibbs, and Harold F. Margolin (collectively “Patient-Plaintiffs”) are members of WAMM who use marijuana to alleviate the extreme pain and suffering caused by their illnesses and, in some cases, by the severe side effects of conventional treatments for their illnesses.  Corral Decl. at ¶¶ 14-17; Acosta Decl. at ¶¶ 15-16; Baehr Decl. at ¶¶ 13-14; Hentz Decl. at ¶¶ 13-15; Gibbs Decl. at ¶¶ 17-18; Margolin Decl. at ¶ 11; Cheslosky Decl. at ¶¶ 17, 23. 

WAMM has approximately 250 member patients who suffer from HIV or AIDS, multiple sclerosis, glaucoma, epilepsy, various forms of cancer, and other serious illnesses and diseases.  Corral Decl. at ¶ 10.  Without access to medical marijuana, the Patient-Plaintiffs suffer unnecessarily and their health is severely jeopardized.  Declaration of Neil M. Flynn, M.D. at ¶ 22; Leff Decl. at ¶ 27.  They rely upon medical marijuana to, among other things, control seizures, alleviate severe pain, stimulate appetite to avoid the “wasting syndrome” that afflicts AIDS patients, and control severe nausea caused by cancer treatments.  Cheslosky Decl. at ¶¶ 15, 20; Flynn Decl. at ¶¶ 15, 22; Leff Decl. at ¶¶ 21, 25.  The vast majority of WAMM’s patient members are terminally ill and will die more painful deaths without access to medical marijuana.  Corral Decl. at ¶¶ 10, 34; Leff Decl. at ¶ 26. 

All of WAMM’s activities are legal under state law, and authorized by local authorities.  See Section II.B. infra.  WAMM patients who have a physician’s written recommendation, in compliance with the Compassionate Use Act, receive a regulated weekly allotment of medical marijuana.  Corral Decl. at ¶¶ 13, 28.  Each WAMM member must sign an agreement requiring a doctor to monitor his or her use of medical marijuana.  Corral Decl. at ¶ 11 and Ex. A. 

In addition, WAMM members do not purchase or sell medical marijuana.  Acosta Decl. at ¶ 13; Baehr Decl. at ¶¶ 18-19; Gibbs Decl. at ¶  22; Hentz Decl. at ¶¶ 25-26; Margolin Decl. at ¶¶ 18-19; Cheslosky Decl. at ¶ 24.  The medical marijuana is cultivated in the WAMM garden in Davenport or by members at their homes within California as part of the WAMM Cultivation Partnership Program or the WAMM Satellite Program.  Corral Decl. at ¶ 13.  WAMM members consume their medical marijuana in California and do not take it across state borders.  Baehr Decl. at ¶ 18; Gibbs Decl. at ¶ 22; Hentz Decl. at ¶ 26; Margolin Decl. at ¶ 18; Cheslosky Decl. at ¶ 24.  WAMM members must sign an agreement under which they agree that WAMM will be their only source of medical marijuana and that they will not sell or provide marijuana to others.  Corral Decl. at ¶ 11 and Ex. B.  When receiving their monthly allotments, members must confirm that they are using their medical marijuana solely within the State of California.  Id. at ¶ 11 and Ex. C.

B.                 California’s Compassionate Use Act and County and City Support for WAMM’s Efforts to Aid Sick and Dying Members

On November 5, 1996, the citizens of California approved Proposition 215, the Compassionate Use Act, Cal. H&S Code § 11362.5, which makes it lawful for patients to cultivate and use marijuana for medical purposes when they do so with the recommendation or advice of their physicians.  The Compassionate Use Act encourages federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of it.  Cal. H&S Code § 11362.5(b)(1)(C) , Plaintiff’s Request for Judicial Notice (“RJN”), Ex. 13.[1]

To ensure effective implementation of the Compassionate Use Act, Plaintiff City of Santa Cruz enacted Chapter 6.90 of the Santa Cruz Municipal Code (“City Ordinance”) pursuant to the City’s broad authority to enact and enforce regulations promoting and protecting the health and welfare of its residents.  See Calif. Const. Art. XI, §§ 5(a), 5(b)  and 7 .  The City Ordinance provides that the City of Santa Cruz shall recognize an individual as a patient qualified to use medical marijuana when he or she possesses a licensed physician’s written recommendation or when he or she is under a physician’s care “for any of those certain medical conditions listed under the definition of ‘qualified patient’ in accordance with the Compassionate Use Act of 1996.”  Santa Cruz Municipal Code § 6.90.020(1) , RJN, Ex. 15.  In addition, the City Ordinance provides that cultivation of marijuana shall be lawful when, as here, the “cultivation is conducted solely for the personal medical purposes of qualified patients in accordance with [the Compassionate Use Act].”  Santa Cruz Municipal Code § 6.90.040(1), RJN, Ex. 15.

The City Ordinance also authorizes the City of Santa Cruz to deputize individuals and organizations as medical marijuana providers to assist the City in implementing the City Ordinance and the Compassionate Use Act.  Santa Cruz Municipal Code § 6.90.080 , RJN, Ex. 15.  On December 10, 2002, the Santa Cruz City Council adopted a resolution deputizing Plaintiff WAMM, Plaintiff Valerie Corral, and her husband and primary caregiver, Michael Corral, to function as City-authorized medical marijuana providers.  Corral Decl. at ¶ 23; Declaration of Emily Reilly, Mayor of the City of Santa Cruz, California, at ¶ 8 and Ex. A. [2] 

Likewise, as a subdivision of the State of California, Plaintiff County of Santa Cruz has broad discretion in determining proper exercises of the police power delegated to it by the State of California for the protection of public health.  See Calif. Const. Art. XI, §§ 1, 7 .  Pursuant to its mandate to protect and promote the health and welfare of its citizens, the County of Santa Cruz supports and indeed authorizes the use of medical marijuana for treatment of seriously ill patients.  Declaration of Ellen Pirie, Chair of the Board of Supervisors of County of Santa Cruz, California, at ¶ 3.  Toward that end, the County adopted the Santa Cruz County Medical Marijuana Ordinance, Santa Cruz County Code §§ 7.122.010-7.122.060  (“the County Ordinance”) on November 3, 1992.  One of the County Ordinance’s purposes is to “direct the elected officials of Santa Cruz County to take whatever actions may be within their power to support the availability of cannabis/marijuana for medical use.”  Santa Cruz County Code § 7.122.020 (C), RJN, Ex. 14.  Thus, for example, the County Board of Supervisors has requested that the sheriff and district attorney exercise whatever discretionary powers they possess to minimize the negative impacts of current marijuana restrictions where medical use is apparent.  Santa Cruz County Code § 7.122.050(B) , RJN, Ex. 14. 

In enacting the County Ordinance, Plaintiff County of Santa Cruz made findings regarding the safety and effectiveness of marijuana as medicine.  Santa Cruz County Code §§ 7.122.040(A) & (B) , RJN, Ex. 14.  The County Ordinance also provides that the board of supervisors shall direct the County Health Services Agency to monitor medical marijuana developments, including research projects, trial studies, or current government programs, and to make available to doctors and patients upon request accurate and timely information regarding the efficacy of marijuana for various medical conditions.  Santa Cruz County Code § 7.122.050(C)

Since the enactment of the Compassionate Use Act and the County and City ordinances, WAMM patients have openly and publicly cultivated medical marijuana with the full knowledge and endorsement of state and local law enforcement officials, including the sheriff’s office, the office of the chief of police and the district attorney’s office.  Corral Decl. at ¶ 25; RJN, Ex. 7.  Plaintiffs County and City of Santa Cruz support WAMM’s purpose and activities because WAMM cares for some of their most seriously ill patients, and, thus, discharges City and County obligations.  Pirie Decl. at ¶ 5; Reilly Decl. at ¶ 11.  In addition to promoting public health by caring for its members, WAMM promotes public safety and effective law enforcement within the City.  By providing its members with a safe and reliable source of medical marijuana, WAMM ensures that seriously ill patients are not forced to obtain relief from their pain and suffering through illegal means, which would jeopardize their safety and might compromise the safety of other residents.  Reilly Decl. at ¶ 11.

C.                 The Federal Government’s September 5, 2002 Raid

In response to California’s legalization of medicinal marijuana, Defendants – the United States Attorney General, the Acting Administrator of the Drug Enforcement Administration, the Director of the Office of National Drug Control Policy, and their agents and officers – have embarked upon a crusade to thwart California citizens’ constitutional right to cultivate medicinal marijuana in compliance with the Compassionate Use Act.  Defendants’ crusade has included raids, seizure of property, unwarranted restraint of patients, and arrests.

On September 5, 2002, a DEA task force consisting of 20 to 30 armed DEA agents and officers from the San Jose Police Department and the Santa Clara County Sheriff’s Office raided the home that Plaintiff Valerie Corral shares with her husband in Davenport, California.  Corral Decl. at ¶ 27; RJN, Ex. 6.  The officers also raided the adjacent garden, which WAMM members use to cultivate medicinal marijuana, cutting down and seizing 160 of WAMM members’ medical marijuana plants and seven of Plaintiff Valerie Corral’s own medical marijuana plants.  Corral Decl. at ¶ 28; RJN, Ex. 1.  The raid and seizures were conducted under color of the federal Controlled Substances Act (“CSA”), which targets drug trafficking and distribution that impact interstate commerce.  See 21 U.S.C. § 801, et. seq.

The raid severely restricted WAMM patient members’ ability to use medical marijuana.  Corral Decl. ¶ 28.  In addition to removing all of the WAMM members’ medical marijuana plants, DEA agents seized many of the patient members’ weekly allotments of medical marijuana, which had been measured for correct dosage and placed in envelopes labeled with the names of the patients for whom they were intended.  Id.  Shortly after the WAMM raid, former DEA Administrator ASA Hutchinson (predecessor to Defendant Brown) confirmed in a letter to California Attorney General Bill Lockyer the federal policy of disrupting use of state-authorized medical marijuana, stating that federal agents will continue to raid medical marijuana plots as long as marijuana remains a controlled substance under federal law.  RJN, Ex. 5; see also RJN, Ex. 4, 10, 11 & 12.

To demonstrate its support for WAMM after the DEA raid, Plaintiff City of Santa Cruz allowed WAMM patients to collect their weekly allotment of medical marijuana on the front steps of City Hall.  Reilly Decl. at ¶ 9, RJN, Ex. 3.  Six of seven members of the Santa Cruz City Council, including now Mayor Emily Reilly, attended the demonstration in support of WAMM, as did three former mayors of the City of Santa Cruz, and a Santa Cruz County supervisor.  Id.  The County Board of Supervisors adopted a resolution on September 18, 2002, condemning the raid and urging the federal government not to indict Valerie and Michael Corral for their activities in providing medical marijuana to seriously ill patients.  Pirie Decl. at ¶ 4 and Ex. A

Also in response to the raid, San Jose Police Chief William Lansdowne pulled his department’s officers off of the DEA High Intensity Drug Trafficking Area Task Force.  Declaration of Gerald Uelmen at ¶ 15; RJN, Ex. 6.  In doing so, Lansdowne rejected federal efforts to compel his officers to enforce a federal law that conflicts with California’s medical marijuana law.  Uelmen Decl. at ¶ 14; RJN, Ex. 6.  California Attorney General Bill Lockyer also demonstrated support for WAMM in a letter to Defendant Gonzales in which he called the September 2002 raid part of “the DEA’s strategic policy . . . to conduct . . . raids as punitive expeditions whether or not a crime can be successfully prosecuted.”  RJN, Ex. 2.  Indeed, disrupting California citizens’ lawful cultivation and use of medical marijuana is part of an official federal policy released on December 30, 1996 by the former director of the Office of National Drug Control Policy (“ONDCP”), the predecessor to Defendant Walters.  RJN, Ex. 7.  The policy was promulgated by an interagency working group that included, among other agencies, the ONDCP, the DEA, and the Department of Justice.  Id.; see also RJN, Exs. 8 & 9.

III.             The STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

The Ninth Circuit uses two related tests to determine whether preliminary injunctive relief is proper.  The “traditional” test uses four prongs.  Under the “traditional” test, courts consider:

(1) the likelihood of the moving party's success on the merits; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by granting the preliminary relief.

United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987) .

The “alternative” test collapses the four prongs into two options.  The first option requires that the moving party show both probable success on the merits and the possibility of irreparable injury.  See Idaho Sporting Congress v. Alexander, 222 F.3d 562, 565 (9th Cir. 2000) .  However, if there is less likelihood of success on the merits, the second option requires a showing that the balance of hardships tips in the plaintiffs’ favor.  See Id.  This “alternative test” is a “continuum of equitable discretion whereby the greater the relative hardship to the moving party, the less probability of success must be shown.”  Regents of Univ. of Calif. v. ABC, Inc., 747 F.2d 511, 515 (9th Cir. 1984) .

Under either formulation, a preliminary injunction is appropriate where plaintiffs have at least a “reasonable probability” of success.  Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (1991); Johnson v. California State Board of Accountancy, 72 F.3d 1427, 1429 (9th Cir. 1995) .  Here, all four factors tip sharply in plaintiffs’ favor, regardless of which formulation the Court uses.

IV.              PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

Plaintiffs allege that Defendants’ actions violate the Fifth, Ninth, and Tenth Amendments to the United States Constitution, and the Commerce Clause.  As discussed below, Plaintiffs are likely to succeed on the merits of these claims.

A.                 Defendants’ Seizure Of Plaintiffs’ Medical Marijuana Violates Their Fundamental Constitutional Rights

The Due Process Clause of the Fifth Amendment protects from federal interference liberties not enumerated in the Constitution.  U.S. Const. Amend. V .  The Ninth Amendment also protects such liberties by mandating that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  U.S. Const. Amend. IX .  These unenumerated liberties are of equal dignity with, and are as “fundamental” as, those set forth in the Bill of Rights.  See, e.g., Meyer v. Nebraska, 262 U.S. 390, 401 (1923) ; Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) ; United States v. Troxel, 530 U.S. 57, 57 (2000) .  Where the liberty is “‘deeply rooted in this Nation’s history and tradition’ [Moore v. East Cleveland, 431 U.S. 494, 503 (1977) ] . . . such that ‘neither liberty nor justice would exist if [it] were sacrificed’ [Palko v. Connecticut, 302 U.S. 319, 325 (1937)],” an unenumerated right is as fundamental as one specifically contained within the text of the Constitution.  Washington v. Glucksberg, 521 U.S. 702, 721 (1977)

Here, the Patient-Plaintiffs’ rights to maintain bodily integrity, ameliorate pain, preserve life and control the circumstances of their own deaths — which they exercise by cultivating and using medical marijuana — are deeply rooted in our nation’s history.  They are fundamental liberties, and the federal government’s actions in derogation of them demonstrates a substantial likelihood of success on the merits.

1.                  Defendants’ Actions Violate Patient-Plaintiffs’ Fundamental Rights To Maintain Bodily Integrity, Ameliorate Pain, Preserve Life, And Control The Circumstances Of Their Own Deaths.

The right to be free of government intrusion with respect to one’s body has roots in natural rights principles and the philosophy of individual autonomy.  See John Stuart Mill, On Liberty 15-17 (Prometheus Books, 1986)  (concluding that “[o]ver himself, over his own body and mind, the individual is sovereign”).  As early as 1765, legal commentator William Blackstone recognized a right to personal autonomy that “consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”  1 Wm. Blackstone, Commentaries *128 (1765).  Blackstone noted that this autonomy extends to protect the “preservation of a man’s health from such practices as may prejudice or annoy it.”  Id. at *133.  This autonomy finds expression in both the Due Process Clause of the Fifth Amendment and the unenumerated liberties protected by the Ninth Amendment.

Supreme Court precedent has consistently upheld the fundamental right to maintain bodily integrity.  See, e.g., Cruzan v. Director Mo. Dept. of Health, 497 U.S. 261, 281 (1990)  (holding that Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment); Winston v. Lee, 470 U.S. 753, 766 (1985)  (ruling that involuntary surgery to remove bullet from defendant’s shoulder is unreasonable invasion of his body); Rochin v. California, 342 U.S. 165, 172 (1952)  (finding that forcible pumping of defendant’s stomach is unconstitutional violation of bodily integrity).  In four concurring opinions in Glucksberg, the Supreme Court recognized a patient’s right to use physician-recommended medication to alleviate pain and suffering when treating a terminal illness.  “[A] patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians.”  Glucksberg, 521 U.S. at 736-37 (O’Connor, J., concurring) (emphasis added).  Also concurring in Glucksberg, Justice Breyer affirmed that the “right to die with dignity” includes a right to “the avoidance of unnecessary and severe physical suffering.”  Id. at 790 (Breyer, J., concurring).  Likewise, Justice Stevens:  “[a]voiding intolerable pain and the indignity of living one’s final days incapacitated and in agony is a fundamental right.”  Id. at 745 (Stevens, J., concurring).  And Justice Souter recognized that a person’s “liberty interest in bodily integrity [includes] a right to determine what shall be done with his own body in relation to his medical needs.”  Id. at 777 (Souter, J., concurring) (citation omitted).  By their terms and as applied, the Compassionate Use Act and the City and County’s implementation of it promote Plaintiff-Patients’ fundamental rights, as recognized by the Supreme Court, to avoid unnecessary pain and suffering and to die with dignity.

The fundamental rights to ameliorate pain and to control the circumstances of one’s own death also find expression in other California laws.  The Intractable Pain Law, Cal. Bus. & Prof. Code § 2241.5 , for example, exempts from disciplinary action a physician or surgeon who prescribes or administers controlled substances for treatment of intractable pain.  Another example, the Pain Patient’s Bill of Rights, Cal. H&S Code §§ 124960-124961, provides that “[a] patient suffering from severe chronic intractable pain has the option to request or reject the use of any or all modalities in order to relieve his or her severe chronic intractable pain,” which includes use of physician-prescribed opiate medications.  Cal. H&S Code §§ 124960(g) , (h), and (i).  An analysis that accompanied the Legislature’s third reading of Senate Bill 402, which enacted the Pain Patient’s Bill of Rights, states that one of the Legislature’s goals in enacting the statute was to confirm “[t]hat treatment for severe, chronic, intractable pain is a fundamental human right.”  Such popular and state legislative action indicates that a particular liberty is fundamental just as surely as a judicial inquiry into its historical roots.  See Troxel v. Granville, 530 U.S. 57, 90-91 (2000) .

Based on historical principles, Supreme Court precedent, and the voice of the citizens of California, the Patient-Plaintiffs must be permitted to exercise their fundamental right to use medical marijuana to alleviate their pain and suffering.  Even with today’s state-of-the-art therapies, many cancer patients, for example, are forced to endure unremitting nausea and vomiting, excruciating pain, and/or wasting (sometimes referred to as cachexia), that can only be alleviated or ameliorated effectively through the use of medical marijuana.  Declaration of Ernest H. Rosenbaum, M.D. at ¶ 9.  The use of medical marijuana in compliance with State, County and City rules and regulations enables Patient-Plaintiffs to avoid the pain and suffering that are symptomatic of their illnesses and conventional treatments, as well as in some cases, control the circumstances surrounding their impending deaths.  For example:

·        Patient Plaintiff Jennifer Lee Hentz, 37 years old, was diagnosed with Stage IV colon and lymph node cancer one and a half years ago.  Hentz Decl. at ¶ 1.  She suffers intense pain from the cancer, and every round of chemotherapy brings on waves of nausea that leave her doubling over with pain.  Id. at ¶¶ 6-7.  The cancer and Jennifer’s therapy frequently leave her with no appetite, and even when she is able to eat, she often can’t keep the food down due to persistent and intense nausea.  Id. at ¶ 7Traditional pain medications either did not work to alleviate the pain, caused increased nausea and/or left Jennifer incapacitated.  Id. at ¶ 8.  The use of medical marijuana through WAMM provided significant and almost immediate relief; Jennifer’s nausea disappeared, which allowed her to eat, enabled her to keep down her other oral medications as needed, and relieved the stomach cramping caused by the cancer, chemotherapy, hunger and vomiting.  Id. at ¶ 13.

·        Michael Cheslosky suffers from AIDS as well as from several other chronic medical conditions associated with the disease, including Kaposi’s sarcoma, Hepatitis C, thrush, liver disease, a damaged spleen, gastrointestinal disorders, neuropathic illnesses, and degenerative disk disease.  Cheslosky Decl, ¶ 1.  Recurrent pneumonia, chronic pain, and wasting syndrome are also aspects of Michael’s deteriorating health.  Id.  Medical marijuana effectively relieves his chronic pain without the debilitating grogginess, nausea and lethargy he experienced with other prescribed pain medications, including those prescribed specifically for spastic pain and neuropathy.  Id. at ¶ 18.  Marijuana also acts as an appetite stimulant, helping him eat enough to avoid “wasting” and the malnutrition that results.  Id. 

·        Dorothy Gibbs, a 93-year old resident of Santa Cruz, suffers from polio and post-polio syndrome ,which have caused permanent damage in her legs, spine, and back, resulting in increasing levels of pain and atrophy in her legs and back as well as severe osteoarthritis in her hands, arms, and joints.  Gibbs Decl. at ¶¶ 1-4.  She has been in nearly constant pain for decades and homebound for several years.  Id. at ¶¶ 6-7.  Her physician has prescribed various prescription medications over the years but they either did not work or caused harmful and debilitating side effects.  Id. at ¶ 10.  When Dorothy began using medical marijuana at the age of 86, she experienced almost immediately its positive effects on her pain and nausea.  Id. at ¶¶ 6-17.  Dorothy believes that she should have the right to use anything that may help to relieve her pain, and that her last years, months and days should not be spent suffering.  Id. at ¶ 18.

·        Valerie Corral was in an automobile accident at the age of 20 in which she suffered a severe closed head trauma.  Corral Decl. at ¶ 1.  She has suffered from epileptic seizures ever since.  Id. at ¶ 2.  Doctors prescribed a myriad of anticonvulsants and pain medications, but the medications were not successful in preventing seizures and were only minimally successful in reducing pain.  Id. at ¶ 3.  The medications also sedated Valerie to the point that she lived in a near vegetative state.  Id. at ¶ 4.  The use of medical marijuana has controlled her seizures and restored normalcy to her life; it enables her to do virtually everything that she did before her accident.  Id. at ¶ 7. 

·        Patient-Plaintiff Eladio Acosta suffers from Stage III nasopharyngeal cancer with bilateral cervical lymph node metastases.  Acosta Decl. at ¶ 2.  The medical marijuana recommended by his physician stimulates his suppressed appetite and alleviates his chronic and severe pain, which are symptoms of his cancer and side effects of his conventional treatment.  Id. at ¶ 15.

·        Patient-Plaintiff Harold Margolin, who developed a massive edema after a double cervical fusion operation and then was diagnosed with chronic peripheral neuropathy, suffers from severe debilitating pain.  Margolin Decl. at ¶¶ 9-10.  Hal’s use of the conventional medication Neurontin to control his pain caused loss of muscle control, making it impossible for him to tolerate an increased dosage.  Id. at ¶ 14.  The use of medical marijuana substantially relieves Hal’s pain.  Id. at ¶ 11.

Defendants, through their attempts to block California’s implementation of the Compassionate Use Act, impermissibly erect barriers to these (and other) chronically and terminally ill patients seeking to ameliorate pain and to control the circumstances of their own deaths by using medication recommended by qualified physicians.  See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 852 (1992) (finding that pain and suffering “is too intimate and personal for the State to insist, without more, upon its own vision” of medical treatment); Ingraham v. Wright, 430 U.S. 651, 673-674 (1977) (finding that Due Process has historically included the rights “to be free from and to obtain judicial relief, for unjustified intrusions on personal security” and to enjoy the privileges long recognized as being essential to the pursuit of happiness).  The seizure of Plaintiffs WAMM and Valerie Corral’s marijuana plants and Patient-Plaintiffs’ medical marijuana allotments have severely impaired the Patient-Plaintiffs’ ability to ameliorate pain, and for some, to control the circumstances of their impending deaths. See e.g., Baehr Decl. at ¶ 21; Cheslosky Decl. at ¶ 26; Gibbs Decl. at ¶ 24-25; Margolin Decl. at ¶¶ 21-22.  For example, since Defendants’ September 2002 raid, Plaintiff Jennifer Hentz again began to experience sharp and increasing abdominal pains and to have frequent episodes of nausea, vomiting and diarrhea.  Hentz Decl. at ¶¶ 20-21.  Jennifer has been rushed to the hospital due to the excruciating pain she is now forced to endure with little to no medical marijuana.  Id.  Unless Plaintiff WAMM’s members and Patient-Plaintiffs like Jennifer are allowed to continue their state-authorized cultivation and use of marijuana without federal interference, their fundamental rights will continue to be violated.

2.                  Defendants’ Actions Violate The Patient-Plaintiffs’ Fundamental Right To Follow The Recommendations Of Their Physicians

Defendants’ actions have also violated Patient-Plaintiffs’ fundamental right to follow their doctors’ recommendations in treating their illnesses.  In compliance with the Compassionate Use Act, licensed physicians have recommended that the Patient-Plaintiffs use marijuana in treating their pain and other symptoms of their illnesses.  Declaration of Robert V. Brody, M.D. at ¶ 19; Flynn Decl. at ¶ 15; Leff Decl. at ¶ 21.  These recommendations are based on significant research findings, clinical observations, and anecdotal evidence which confirm that marijuana is effective both in relieving severe and chronic pain and as an antiemetic, meaning that it reduces nausea and vomiting which frequently accompany the use of certain medications, therapies and treatments.  Declaration of Harvey Rose, M.D. at ¶ 4; Leff Decl. at ¶ 13; Rosenbaum Decl. at ¶ 12.  Future federal interference with California’s medical marijuana law will further erode the relationships between the Patient-Plaintiffs and their physicians by preventing these patients from following their physicians’ recommendations.

The Supreme Court has repeatedly acknowledged the inviolability of the physician-patient relationship.  In Griswold v. Connecticut, 381 U.S. 479 (1965) , for example, the Court struck down a Connecticut law criminalizing distribution of contraceptives as violating the Due Process Clause because the “law operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”  Id. at 482.  Similarly, in Roe v. Wade, 410 U.S. 113, 153, 156 (1973) , the Court stressed that criminalization of abortion detrimentally affected the physician-patient relationship.  See also Glucksberg , 521 U.S. at 779 (noting that “the good physician is not just a mechanic of the human body whose services have no bearing on a person’s moral choices, but one who does more than treat symptoms, one who ministers to the patient”); Jaffee v. Redmond, 518 U.S. 1, 10 (1997)  (finding that complete and accurate patient information is essential for the delivery of proper medical care). 

The Ninth Circuit’s recent decision in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) , affirms the sanctity of the physician-patient relationship in the context of medical marijuana recommendations pursuant to California’s Compassionate Use Act.  The Court explicitly recognized the importance of physician-patient communications regarding the potential use of medical marijuana, and held that such communications must be unimpeded by government interference:  “An integral component of the practice of medicine is the communication between a doctor and a patient.  Physicians must be able to speak frankly and openly to patients.”  Id. at 636.  Concurring, Judge Kozinski emphasized the value of a physician’s advice to assist the patient in appropriate use of a drug that is not available by prescription:

For the great majority of us who do not suffer from debilitating pain, or who have not watched a loved one waste away as a result of AIDS-induced anorexia, see IOM Report at 154 [citing Report of the National Institute of Medicine, Marijuana: Assessing the Science Base (1999), which cautiously endorses the medical use of marijuana], it doesn’t much matter who has the better of this debate.  But for patients suffering from MS, cancer, AIDS or one of the other afflictions listed in the IOM report, and their loved ones, obtaining candid and reliable information about a possible avenue of relief is of vital importance. . . . A far more likely consequence is that, in the absence of sound medical advice, many patients desperate for relief from debilitating pain or nausea would self-medicate, and wind up administering the wrong dose or frequency, or use the drug where a physician would advise against it. 

Id. at 643-44. 

Several WAMM members would never have known about the benefits of medical marijuana without the advice and recommendation of their physicians, advice that has directed the treatment of their pain and illnesses.  See e.g., Acosta Decl. at ¶¶ 11-12.  To ensure the continued vitality and efficacy of the physician-patient relationship, the Patient-Plaintiffs must be free to follow the recommendations of their physicians pursuant to state law.  Federal interference with California’s Compassionate Use Act makes it impossible for them to do so, violating this fundamental right. 

Since the Patient-Plaintiffs have at least a “reasonable probability” of establishing violations of rights secured by the Fifth and Ninth Amendments, they are entitled to a preliminary injunction to prevent further application of the CSA to medical marijuana use authorized by the Compassionate Use Act and future raids and seizures until the Court can resolve the merits of their claims.

B.                 Federal Interference With The Compassionate Use Act Violates The Tenth Amendment

Defendants’ actions interfere with the duty and decisions of state and local governments to care for their sick and dying patients.  A state’s police power to safeguard the health and safety of its citizens without federal interference is a foundation of our system of dual sovereignty.  See United States v. Lopez, 514 U.S. 549, 566 (1995).  By interfering with the cultivation and personal use of medical marijuana authorized by California and local law, Defendants have violated and will continue to violate the State of California’s and its subdivisions’ rights to provide for the health and welfare of their citizens.

The Compassionate Use Act embodies the will of the voters of California to allow its citizens to use medical marijuana without fear of prosecution.  General regulation of health and welfare is a power reserved to the states.  See Whalen v. Roe, 429 U.S. 589, 602-03 & n.30 (1977)  (holding that it is “well settled that the State has broad police powers in regulating the administration of drugs by the health professions” and that states have inherent interests in protecting health); Robinson v. California, 370 U.S. 660, 664 (1962)  (holding that there is “no question of the authority of the State in the exercise of its police power to regulate the administration, sale, prescription, and use of . . . drugs”); Barsky v. Board of Regents, 347 U.S. 442, 449 (1954)  (holding that the “State has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there”); see also Cruzan, 497 U.S. at 292 (holding that states have “unqualified interest in the preservation of human life”); Glucksberg , 521 U.S. at 728 (same); Roe , 410 U.S. at 156 (recognizing “the state interests as to protection of health” and “medical standards”); Linder v. United States, 268 U.S. 5, 18 (1925)  (holding that “direct control of medical practice in the [S]tates is beyond the power of the federal government”).[3]

The Compassionate Use Act falls squarely within the power to police health and safety that is reserved to the states and its political subdivisions.  See Calif. Const. Art. XI, §§ 1 , 7 .  As a subdivision of the State of California, Plaintiff County of Santa Cruz, pursuant to its broad authority to determine the proper exercises of the police power delegated to it by the State of California, id., adopted the Santa Cruz County Medical Marijuana Ordinance to “direct the elected officials of Santa Cruz County to take whatever actions may be within their power to support the availability of cannabis/marijuana for medical use.”  Santa Cruz County Code § 7.122.020(C) , RJN, Ex. 14.  Likewise, Plaintiff City of Santa Cruz, pursuant to its broad police power to enact and enforce regulations promoting and protecting the health and welfare of its residents under the “Home Rule,” Calif. Const. Art. XI, §§ 5(a) , 5(b)  and 7 , enacted Chapter 6.90 of the Santa Cruz Municipal Code, which provides that the City shall recognize an individual as a patient qualified to use medical marijuana when he or she possesses a licensed physician’s written recommendation or when he or she is under a physician’s care.  Santa Cruz Municipal Code § 6.90.020(1) , RJN, Ex. 15. 

Like the State, the County and City Plaintiffs support the physician-recommended use of medical marijuana for the treatment and well-being of their seriously ill residents.  However, federal interference with California’s and these Plaintiffs’ implementation of the Compassionate Use Act impermissibly infringes legitimate state and local power to regulate the health and welfare of their citizens.  See Conant, 309 F.3d at 645 (Kozinski, J., concurring) (noting that “in the circumstances of this case . . . I believe the federal government’s policy runs afoul of the ‘commandeering’ doctrine announced by the Supreme Court.”) (citations omitted). 

In addition, Defendants’ actions violate the Tenth Amendment by commandeering California’s executive functions.  The DEA task force that conducted the September 5, 2002 raid on WAMM included, among others, officers from the San Jose Police Department and the Santa Clara County Sheriff’s Department.  RJN, Ex. 6; Corral Decl. at ¶ 28; Uelmen Decl. at ¶ 11.  The Tenth Amendment, however, forbids the federal government from compelling state law enforcement officers to enforce federal law.  “[T]he Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress’ instructions.”  Reno v. Condon, 528 U.S. 141, 148 (2000)  (quoting New York v. United States, 505 U.S. 144, 162 (1992) ).

These principles find application in Printz v. United States, 521 U.S. 898, 902 (1997) .  In Printz, the Supreme Court invalidated a provision of the Brady Act, a federal gun regulation scheme that compelled state and local officers to conduct background checks on prospective handgun purchasers.  In striking down the provision, the Court held that the federal government cannot compel states to enact or enforce a federal regulatory program, nor may it circumvent that prohibition by conscripting state officers directly.  See id. at 935.  Cf. Conant , 309 F.3d at 645 (Kozinski, J., concurring).  Much like the Brady Act, the CSA is a federal regulatory scheme that the federal government cannot conscript the states to enforce.  San Jose Police Chief Lansdowne pulled his officers off of the DEA High Intensity Drug Trafficking Area Task Force after the September 2002 raid because of the conflict that exists between state and federal law.  Uelmen Decl. at ¶ 11-14; RJN, Ex. 6.  He objected to his officers being asked to enforce federal law in contravention of California law.  Id.  The use of state and county officers to conduct raids pursuant to the federal CSA in conflict with state law commandeers the State of California’s executive functions, violating the Tenth Amendment.  A preliminary injunction should issue to halt continued federal conscription of local law enforcement. 

C.                 Defendants’ Interference With The Compassionate Use Act Exceeds Congressional Power Under The Commerce Clause

The deference to the sovereign police power of the State and its political subdivisions, including Plaintiff County of Santa Cruz, is required both by the Tenth Amendment and by the Commerce Clause.  Plaintiff City of Santa Cruz also has broad police powers under the California Constitution.  See Calif. Const. Art. XI, §§ 5(a) , 5(b) and 7 .  Within the formal structure of our federalism,

Congress has vast power, but not all power.  When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations.  Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. 

Alden v. Maine, 527 U.S. 706, 758 (1999) .  Thus, although Congress’ power to regulate commerce among the states is supreme, the extension of that power to intrastate commerce is derivative, depending upon a showing that the intrastate commerce it proposes to regulate has a substantial impact upon interstate commerce.  When a state, in the exercise of its sovereign and supreme powers, explicitly authorizes intrastate transactions, Congress cannot avoid its burden to show a “substantial effect” on interstate commerce by asserting “supreme authority” to define the class of activity to be regulated.  This showing must be directed to the particular intrastate activity the state has authorized.  Printz, 521 U.S. at 923-24 (quoting The Federalist No. 35, at 204 (A. Hamilton) ).

Defendants rely upon the CSA to interfere with Plaintiffs’ wholly intrastate activity that is expressly authorized by local and state governments.  Cal. H&S Code § 11362.5(b)(1)(A) , RJN, Ex. 13; Santa Cruz Municipal Code § 6.90.020, RJN, Ex. 15.  But purely intrastate, non-economic activities are beyond the limited reach of Congress to regulate “[c]ommerce . . . among the several States.”  U.S. Const., Art. I, § 8.  As Chief Justice Marshall made clear at the outset of Commerce Clause jurisprudence, “the completely internal commerce of a State. . . may be considered as reserved for the State itself.”  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) .

Applying the CSA to proscribe Plaintiffs’ wholly intrastate, non-economic activities impermissibly expands the reach of federal authority.  The Patient-Plaintiffs’ cultivation, possession and use of medical marijuana take place entirely within California.  The medical marijuana is cultivated exclusively in the WAMM garden in Davenport, California, or by members at their homes in California as part of the WAMM Cultivation Partnership and Satellite Programs.  Corral Decl. at ¶ 13.  The Patient-Plaintiffs consume their medical marijuana in California, and do not take it across state borders.  Baehr Decl. at ¶ 8; Gibbs Decl. at ¶ 22; Hentz Decl. at ¶ 26; Margolin Decl. at ¶ 18; Cheslosky Decl. at ¶ 25.  They do not purchase or sell medical marijuana, Acosta Decl. at ¶ 13; Baehr at ¶¶ 18-19; Gibbs at ¶ 22; Hentz at ¶¶ 25-26; Margolin at ¶¶ 18-19, and each member signs an agreement that prohibits her or him from providing marijuana to others.  Corral Decl. at ¶ 11 and Ex. B. 

Federal efforts to regulate medicinal marijuana legalized by California “considerably blur the distinction between what is national and what is local.”  Conant, 309 F.3d at 647.  That is because “[m]edical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce.”  IdCf. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 495 n. 7 (2001)  (Stevens, J., concurring) (reserving “whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause”).  The limited sphere of federal authority under the Commerce Clause is the subject of two Supreme Court decisions that must inform this Court’s consideration of this motion.  See United States v. Lopez , 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000) .

In Lopez , the Court struck down the Gun-Free School Zones Act of 1990, a provision of which made it a federal offense to knowingly possess a firearm in a school zone.  See 18 U.S.C. § 922(q)(1)(A).  In doing so, the Court held that the “Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce” and, therefore, “exceeds the authority of Congress.”  Lopez, 514 U.S. at 551.  The Court warned that Congress’ authority over “the scope of the interstate commerce power . . . ‘may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would obliterate the distinction between what is national and what is local and create a completely centralized government.’”  Id. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

The Court rejected another federal regulation based on an “attenuated analysis” in MorrisonMorrison dealt with the federal Violence Against Women Act, 42 U.S.C. § 13981 , which was supported by Congressional findings that the aggregate effect of violence against women was economic in nature.  However, the Court rejected the notion that non-economic, intrastate activities could affect interstate commerce.  See Morrison, 529 U.S. at 613.  In particular, the Court rejected the “attenuated analysis” that an activity might affect interstate commerce somewhere down the road “as unworkable if we are to maintain the Constitution’s enumeration of powers.”  Id.  The Court held that acceptance of such “attenuated” reasoning would leave it “hard pressed to posit any activity by an individual that Congress is without power to regulate.”  Id. at 612-613.  Thus, the Supreme Court squarely rejected the argument that a wholly non-economic, intrastate activity, such as Patient-Plaintiffs’ cultivation and use of medical marijuana, has an “aggregate effect” on interstate commerce sufficient to justify federal regulation. [4] 

The Ninth Circuit recently reaffirmed and applied the Supreme Court’s Commerce Clause analysis in United States v. McCoy, 03 C.D.O.S. 2483 (9th Cir. Mar. 20, 2003) McCoy held unconstitutional a federal statute prohibiting intrastate possession of child pornography made with materials that had traveled in interstate commerce where the pornography at issue was not transported interstate and was not intended for interstate distribution or for any economic use.  Id. at 2483.  Specifically, McCoy found that the federal prohibition of possession of child pornography “cannot be upheld as a valid exercise of the Commerce Clause” as applied to possession that is non-economic and non-commercial.  “We interpret the statute as applied to McCoy’s conduct as it falls within a class of activity that § 2252(a)(4)(B) purports to reach:  intrastate possession of a non-commercial and non-economic character.”  Id. at 2490. 

Similarly, the prohibition of drug trafficking contained in the CSA is unconstitutional as applied to non-economic and non-commercial cultivation of marijuana for medical purposes.   It is of no import in this case that Congress has declared that all drug trafficking activity substantially affects interstate commerce.  The class of activity under scrutiny is not all drug trafficking, as defined in the federal CSA, but rather it is the intrastate cultivation of marijuana for medicinal purposes pursuant to the recommendation or approval of a physician in compliance with the Compassionate Use Act.

Where, as here, a State has carved out a discrete class of intrastate activity and explicitly authorized that activity in the exercise of its exclusive police power to protect the health and safety of its citizens, Congress can no longer rely upon a sweeping finding that a broader class of activity substantially affects interstate commerce.  There must be a reasonable basis to conclude that the discrete class of intrastate activity that the State has itself authorized has a substantial effect upon interstate commerce.  The discrete class of activity at issue in this case cannot be prohibited by Congressional authority to regulate interstate commerce without a showing that this activity has a substantial effect upon interstate commerce.[5]

Taken together, Lopez , Morrison  and McCoy  require the federal government to demonstrate that the particular activity it seeks to regulate substantially affects interstate commerce.  Defendants cannot make that showing here.  Patient-Plaintiffs’ non-economic, wholly intrastate, physician-recommended cultivation and personal use of medicinal marijuana has no effect on interstate commerce.  The marijuana at issue here is grown in California, consumed in California, is never bought or sold, and does not leave California.  Application of the CSA to the Patient-Plaintiffs’ use of medicinal marijuana “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce,” Lopez , 514 U.S. at 551, and therefore is outside the scope of federal authority.[6]  Accordingly, there is a reasonable probability that Plaintiffs will succeed on the merits of their Commerce Clause challenge.  A preliminary injunction should issue to prevent the federal government from continuing to overstep its Commerce Clause authority.

V.                 DEFENDANTS’ actions have caused, and will continue to cause, IRREPARABLE HARM TO PLAINTIFFS

The second consideration in deciding whether injunctive relief is appropriate is the existence of irreparable harm.  Loss of constitutional freedom, “for even minimal periods of time, unquestionably constitutes irreparable harm.”  Elrod v. Burns, 427 U.S. 347, 373 (1976)  (holding that First Amendment violations constitute irreparable harm without the need for further inquiry).  As discussed above, Defendants’ actions violated and threaten to continue to violate Plaintiffs’ constitutional rights. 

Even if that were not enough, Plaintiffs can and do show irreparable harm.  The Patient-Plaintiffs have already suffered severe damage to their health through federal seizure of the medical marijuana plants at WAMM’s Davenport location.  The seizure has severely restricted (and otherwise compromised) many patients’ allotments of medicinal marijuana, impeding and reducing Patient-Plaintiffs’ efforts to alleviate their pain, stimulate their appetite and, for many, control the circumstances of their deaths.  Hentz Decl. at ¶¶ 20-21; Margolin Decl. at ¶¶ 21-22; Corral Decl. at ¶¶ 29, 34.  WAMM is the only safe, legal source for its members’ medicine.  Corral Decl. at ¶ 13.  Continued federal seizure of Patient-Plaintiffs’ medical marijuana will result in increased pain and suffering. 

The declarations filed in support of this motion amply demonstrate the real and irreparable harm that the Patient-Plaintiffs endure on a daily basis as a result of the federal government’s September 5, 2002 raid.  See e.g., Hentz Decl. at ¶¶ 20-21; Margolin Decl. at ¶¶ 21-22.  Similarly, Plaintiffs County and City of Santa Cruz have also suffered and will continue to suffer irreparable harm in the form of unauthorized federal interference with their ability to provide for the health and welfare of their citizens, in derogation of the sovereignty they retain as a political subdivision and municipality, respectively, of the State of California.  Pirie Decl. at ¶¶ 1-2; Reilly Decl. at ¶¶ 1, 2-4.

VI.              The BALANCe OF HARDSHIPS tips SHARPLY in plaintiffs’ Favor

A preliminary preservation of the status quo imposes very little, if any, burden on Defendants.  It would not halt enforcement of the CSA with respect to interstate trafficking and use of recreational marijuana and other controlled substances.  It would simply prohibit federal interference with the County and City Plaintiffs’ implementation of California’s Compassionate Use Act until a ruling on the merits. 

In contrast, the Patient-Plaintiffs and other members of WAMM face enduring pain and other severe symptoms as a result of their illnesses and the side effects of their conventional treatments.  Without the ability to use medicinal marijuana, Patients-Plaintiffs will continue to suffer increasing and often excruciating pain.  Rosenbaum Decl. at ¶ 23; Flynn Decl. at ¶¶ 18, 23; Rose Decl. at ¶ 26.  Without medical marijuana, many WAMM patients will be deprived of their fundamental rights to control the circumstances of their own deaths.  Fifteen WAMM members have died since the September 2002 raid and several others face impending death.  Corral Decl. at ¶ 34.  Plaintiffs County and City of Santa Cruz face continued interference with their ability to provide for the health and welfare of their citizens.

This is not a close call.  The hardships are all on Plaintiffs’ side.

VII.           PUBLIC INTEREST in health and safety FAVORS preliminary injunctive relief

The public interest also strongly favors granting a preliminary injunction.  The State of California, Plaintiff County of Santa Cruz, and Plaintiff City of Santa Cruz recognize the benefits of medical marijuana and they therefore support and promote the activities of Plaintiff WAMM and its members.  Proposition 215, which enacted the Compassionate Use Act, passed with 81% of Santa Cruz voters voting in favor of it.  RJN, Ex. 6.

WAMM actively promotes and aids public health and safety within the City and County of Santa Cruz.  By virtue of its status as deputy, WAMM is authorized to assist the City of Santa Cruz in administering the City Ordinance and the Compassionate Use Act.  Reilly Decl. at ¶ 8.  WAMM provides effective medication in the form of medical marijuana to many of the City’s and County’s most seriously ill residents, including those suffering from HIV/AIDS and various forms of cancer.  Pirie Decl. at ¶ 5; Reilly Decl. at ¶ 11; Corral Decl. at ¶ 10.  WAMM is also intimately involved in the care of its members, including the provision of in-home care, hospice care, support groups, health education, and professional counseling.  Corral Decl. at ¶ 12; Acosta Decl. at ¶ 14; Baehr Decl. at ¶ 17; Gibbs Decl. at ¶ 22; Hentz Decl. at ¶ 28; Margolin Decl. at ¶¶ 16-17; Cheslosky Decl. at ¶ 24.  Some of WAMM’s patients are indigent residents for whom the County would otherwise be providing health care.  Pirie Decl. at ¶ 5.  Losing the services that WAMM provides to its patients would strain the County’s ability to care for its sick and dying residents.  Id. at ¶ 5.  Further application of the CSA to WAMM’s activities will place a serious strain on Plaintiffs’ ability to protect and promote public health and welfare.

WAMM also promotes public safety and effective law enforcement within the City and County of Santa Cruz.  By providing its members with a safe and reliable source of medical marijuana, WAMM ensures that seriously ill patients are not forced to obtain their medication through illegal means, which would jeopardize their safety and, perhaps, the safety of other Santa Cruz residents.  Uelmen Decl. at ¶ 9; Reilly Decl. at ¶ 11.  Since 1994, WAMM has worked closely with the offices of the area sheriffs, chiefs of police and district attorneys to enforce and monitor the implementation of state and local medical marijuana regulations.  Corral Decl at ¶ 25; Uelmen Decl. at ¶¶ 9, 12.  WAMM’s open and public conduct of its activities aids City and County law enforcement officials in enforcing state drug laws efficiently without infringing the rights of seriously ill patients to possess and use medical marijuana with a physician’s recommendation.  Reilly Decl. at ¶ 11; Uelmen Decl. at ¶ 9.  The public interest – as expressed by California’s and Santa Cruz County’s voters and as served by WAMM’s County and City-authorized activities – is best served by a preliminary injunction.  Until this Court or a jury can resolve on the merits whether Plaintiffs’ interconnected activities are insulated from application of the CSA, the federal government should be enjoined from interfering with them.

VIII.        CONCLUSION

For the reasons stated, this Court should grant Plaintiffs’ motion for preliminary injunction.

DATED:  April ___, 2003

 

BINGHAM McCUTCHEN LLP

By:

Frank Kennamer

Attorneys for WAMM Plaintiffs

 

Additional Counsel:

Daniel Abrahamson (SBN 158668)

Judith Appel (SBN 179121)
DRUG POLICY ALLIANCE
Office Of Legal Affairs
717 Washington Street
Oakland, California 94607
Telephone: 510.208.7711
Facsimile:  510.208.7722

 

Attorneys for WAMM Plaintiffs

(Continued On Following Page)

 

 

 

 

Benjamin Rice (SBN 98551)
331 Soquel Avenue, Suite 203
Santa Cruz, California 95062
Telephone: 831.425.0555
Facsimile: 831.459.9815

 

Attorney for County of Santa Cruz
and WAMM Plaintiffs

 

 

John Barisone (SBN 87831)
333 Church Street
Santa Cruz, California 95060
Telephone: 831.423.8383
Facsimile: 831.423.9401

Attorney for City of Santa Cruz, California

 

 


 

I.......... INTRODUCTION.............................................................................................................. 1

II......... factual background............................................................................................. 2

A........ WAMM and Its Patients.......................................................................................... 2

B......... California’s Compassionate Use Act and County and City Support for WAMM’s Efforts to Aid Sick and Dying Members......................................................................................... 4

C........ The Federal Government’s September 5, 2002 Raid................................................. 6

III....... The STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF..................................... 8

IV....... PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS........................................ 8

A........ Defendants’ Seizure Of Plaintiffs’ Medical Marijuana Violates Their Fundamental Constitutional Rights....................................................................................................................... 9

1......... Defendants’ Actions Violate Patient-Plaintiffs’ Fundamental Rights To Maintain Bodily Integrity, Ameliorate Pain, Preserve Life, And Control The Circumstances Of Their Own Deaths......................................................................................................... 9

2......... Defendants’ Actions Violate The Patient-Plaintiffs’ Fundamental Right To Follow The Recommendations Of Their Physicians........................................................ 13

B......... Federal Interference With The Compassionate Use Act Violates The Tenth Amendment            15

C........ Defendants’ Interference With The Compassionate Use Act Exceeds Congressional Power Under The Commerce Clause........................................................................................... 18

V........ DEFENDANTS’ actions have caused, and will continue to cause, IRREPARABLE HARM TO PLAINTIFFS................................................................................................. 22

VI....... The BALANCe OF HARDSHIPS tips SHARPLY in plaintiffs’ Favor............ 23

VII...... PUBLIC INTEREST in health and safety FAVORS preliminary injunctive relief.......................................................................................................................................... 24

VIII..... CONCLUSION................................................................................................................ 25


 

Cases

Alden v. Maine, 527 U.S. 706 (1999)........................................................................................... 18

Barsky v. Board of Regents, 347 U.S. 442 (1954)........................................................................ 16

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)....................................................... 14, 15, 17, 19

Cruzan v. Director Mo. Dept. of Health, 497 U.S. 261 (1990).............................................. 10, 16

Elrod v. Burns, 427 U.S. 347 (1976)............................................................................................ 22

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........................................................................... 19

Gilder v. PGA Tour, Inc., 936 F.2d 417 (1991)............................................................................. 8

Griswold v. Connecticut, 381 U.S. 479 (1965)............................................................................ 14

Idaho Sporting Congress v. Alexander, 222 F.3d 562 (9th Cir. 2000)........................................... 8

Ingraham v. Wright, 430 U.S. 651 (1977).................................................................................... 13

Jaffee v. Redmond, 518 U.S. 1 (1997).......................................................................................... 14

Johnson v. California State Board of Accountancy, 72 F.3d 1427 (9th Cir. 1995)........................ 8

Linder v. United States, 268 U.S. 5 (1925).................................................................................. 16

Meyer v. Nebraska, 262 U.S. 390 (1923)....................................................................................... 9

Moore v. East Cleveland, 431 U.S. 494 (1977)............................................................................. 9

New York v. United States, 505 U.S. 144 (1992)......................................................................... 17

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).......................................................... 20

Palko v. Connecticut, 302 U.S. 319 (1937)................................................................................... 9

Pierce v. Society of Sisters, 268 U.S. 510 (1925)........................................................................... 9

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)................................... 12

Printz v. United States, 521 U.S. 898 (1997)......................................................................... 17, 18

Regents of Univ. of Calif. v. ABC, Inc., 747 F.2d 511 (9th Cir. 1984)........................................... 8

Reno v. Condon, 528 U.S. 141 (2000).......................................................................................... 17

Robinson v. California, 370 U.S. 660 (1962)............................................................................... 15

Rochin v. California, 342 U.S. 165 (1952)................................................................................... 10

Roe v. Wade, 410 U.S. 113 (1973)......................................................................................... 14, 16

Troxel v. Granville, 530 U.S. 57 (2000)....................................................................................... 11

United States v. Kim, 94 F.3d 1247 (9th Cir. 1996)..................................................................... 20

United States v. Lopez, 514 U.S. 549 (1995)................................................................... 15, 19, 22

United States v. McCoy, 03 C.D.O.S. 2483 (9th Cir. Mar. 20, 2003).............................. 20, 21, 22

United States v. Moore, 423 U.S. 122 (1975).............................................................................. 16

United States v. Morrison, 529 U.S. 598 (2000)........................................................ 19, 20, 21, 22

United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001)................................... 19

United States v. Odessa Union Warehouse Co-op, 833 F.2d 172 (9th Cir. 1987).......................... 8

United States v. Troxel, 530 U.S. 57 (2000).................................................................................. 9

United States v. Visman, 919 F.2d 1390 (9th Cir. 1990).............................................................. 22

Washington v. Glucksberg, 521 U.S. 702 (1977)......................................................... 9, 10, 14, 16

Whalen v. Roe, 429 U.S. 589 (1977)............................................................................................ 15

Winston v. Lee, 470 U.S. 753 (1985)............................................................................................ 10

STATUTES

18 U.S.C. § 922(q)(1)(A).............................................................................................................. 19

21 U.S.C. § 801, et. seq.................................................................................................................. 6

21 U.S.C. § 885(d).......................................................................................................................... 5

42 U.S.C. § 13981........................................................................................................................ 20

Cal. Bus. & Prof. Code § 2241.5................................................................................................... 11

Cal. H&S Code § 11362.5, et seq............................................................................................. 4, 18

Cal. H&S Code § 124960, et seq.................................................................................................. 11

Calif. Const. Art. XI, § 1............................................................................................................ 5, 16

Calif. Const. Art. XI, § 5(a).................................................................................................. 4, 16, 18

Calif. Const. Art. XI, § 5(b)................................................................................................. 4, 16, 18

Calif. Const. Art. XI, § 7.................................................................................................. 4, 5, 16, 18

Santa Cruz County Code §§ 7.122.010-7.122.060.................................................................... 5, 16

Santa Cruz Municipal Code § 6.90.020.......................................................................................... 18

Santa Cruz Municipal Code § 6.90.020(1)................................................................................. 4, 16

Santa Cruz Municipal Code § 6.90.040(1)....................................................................................... 4

Santa Cruz Municipal Code § 6.90.080............................................................................................ 4

U.S. Const. Amend. IX.................................................................................................................... 9

U.S. Const. Amend. V..................................................................................................................... 9

U.S. Const., Art. I, § 8................................................................................................................... 18

other authorities

1 Wm. Blackstone, Commentaries *128 (1765)............................................................................ 10

John Stuart Mill, On Liberty 15-17 (Prometheus Books, 1986)........................................................ 9

The Federalist No. 35 (A. Hamilton)............................................................................................. 18

 


 

[1]           At least eight other states (Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington) have passed laws approving the use of medical marijuana.  RJN, Exs. 16-23.

[2]           By virtue of their status as deputies of the City of Santa Cruz authorized to enforce the City Ordinance, Plaintiff WAMM and the Patient-Plaintiffs are immune from criminal and civil liability under the Controlled Substances Act, 21 U.S.C. § 885(d).

[3]           Even the legislative findings behind the federal CSA recognize that states retain the power to regulate the practice of medicine without federal interference.  The CSA’s legislative history confirms that registration to prescribe controlled substances “would be as a matter of right where the individual or firm is engaged in activities involving those drugs which are authorized or permitted under State law.”  1970 U.S.C.C.A.N. at 4590 (emphasis added).  The legislature also made clear that the CSA was only to be applied to “transactions outside the legitimate distribution chain.”  United States v. Moore, 423 U.S. 122, 135 (1975)  (emphasis added).

[4]           In so holding, the Court observed that “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”  Id. (citations omitted).  Thus, while the “aggregate effects” doctrine may apply where illegal drugs are sold for profit (see United States v. Kim, 94 F.3d 1247 (9th Cir. 1996) ), such plainly is not the case here.

[5]           Thus, the constitutionality of the federal CSA’s prohibition on intrastate, non-economic cultivation of medicinal marijuana must be tested by analyzing whether the class of activity defined by the Compassionate Use Act substantially affects interstate commerce.  Morrison  identified a four-part inquiry, applied in McCoy, for determining whether the challenged portion of a statute regulates intrastate activity that has a substantial effect on interstate commerce.  McCoy, 03 C.D.O.S. at 2484-85 (citing Morrison, 529 U.S. 598, 610-612 (2000)).  All four factors weigh heavily in favor of Plaintiffs here:  (1) there are no facts before the Court to support the finding that WAMM’s activities are a commercial or economic enterprise; (2) the CSA does not contain any “express jurisdictional element which might limit its reach to a discrete set” of cases; (3) the CSA contains no “express congressional findings” that cultivation and possession of medical marijuana pursuant to a physician’s recommendation under State law affects interstate commerce; and (4) the link between the activities at issue here and a “substantial effect on interstate commerce” is attenuated, if it exists at all.

[6]           In denying WAMM’s motion for return of property, the Court relied on United States v. Visman, 919 F.2d 1390 (9th Cir. 1990) , for the proposition that the sole act of cultivating marijuana is within Congress’ power to regulate under the Commerce Clause.  Visman, 919 F.2d at 1393.  But Visman does not foreclose the present challenge.  The cultivation at issue in Visman fell within congressional findings for producing illicit crops for sale. Id. at 1392.  However when the State, through legislation, its political subdivisions and the recommendations of licensed physicians, permits the cultivation of medical marijuana solely for personal, medical use within the State, this activity does not affect interstate commerce.  A reading of Visman that places cultivation, by itself, within the ambit of the Commerce Clause is inconsistent with McCoy.

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