Tuesday, November 19, 2013

Medical marijuana: the sharp edge of a thrust toward full legalization?

Medical Cannabis Growing Operation in Oakland,...
Medical Cannabis Growing Operation in Oakland, California (Photo credit: Rusty Blazenhoff)
In an August 15th “Client Alert,” the Philadelphia-based firm of Drinker Biddle summed it up neatly: “Across the country, employers in states allowing medical marijuana use have been grappling with whether these statutes impact employer policies concerning drug testing and maintaining a drug-free workplace.  Though the statutes allow for marijuana use for medical purposes (and some for recreational purposes), these statutes do not consistently address the impact of legal medical marijuana on employers, if at all.”
         Adds the Alert, “And the numbers of states enacting such legislation is continuing to grow.”  Indeed, beginning in 1996 and continuing down to the present day, 20 states, plus the District of Columbia, have enacted legislation that allows for the non-criminal use of marijuana for medical purposes.  And the trend is upward.  Illinois became the 21st American jurisdiction to join the club when its governor signed the state’s HB 1 into law on August 1st.
         What the Drinker Biddle Alert doesn’t discuss is insurance coverage for medical marijuana.  The overall answer is, “Due to marijuana’s status as a Schedule 1 substance under the federal Controlled Substances Act, it will be a long time before health insurers include the drug on their prescription formularies.” [http://echealthinsurance.com/laws/medical-marijuana-and-health-insurance/]
         While understandable, this posture stands against the tide of both public and professional opinion.  For example, a June 2013 survey by the prestigious New England Journal of Medicine garnered replies from 1,446 doctors across 72 nations.  Of these respondents, 76 percent favored use of marijuana for medical purposes.  A 2011 Harris Poll found that a remarkably similar 75 percent of Americans supported medical marijuana.  [http://www.medicalmarijuanablog.com/benefits/medical-marijuana-and-health-insurance.html]
           The American College of Physicians states on its website, “Marijuana has been smoked for its medicinal properties for centuries. Preclinical, clinical, and anecdotal reports suggest numerous potential medical uses for marijuana. Although the indications for some conditions have been well documented, less information is available about other potential medical uses.
           “Additional research is needed to further clarify the therapeutic value of cannabinoids and determine optimal routes of administration. Unfortunately, research expansion has been hindered by a complicated federal approval process, limited availability of research-grade marijuana, and the debate over legalization. ACP believes the science on medical marijuana should not be obscured or hindered by the debate surrounding the legalization of marijuana for general use” [http://www.acponline.org/acp_news/medmarinews.htm]
          While this statement falls short of a full-blown endorsement of medical marijuana use, it certainly is a striking statement from influential members of a traditionally conservative profession.  The American Medical Association has taken a similar position. [http://thinkprogress.org/health/2013/06/03/2090941/doctors-would-prescribe-medical-marijuana/]
           Meanwhile, insurers also are steering clear of coverage for medical marijuana under workers’ compensation.  Two states --- Montana and Vermont --- specifically ban use of marijuana as a medical treatment under their workers’ comp schemes.  [http://www.joepaduda.com/2013/01/medical-marijuana-workers-comp-seriously/]  A recent survey of states’ respective positions on medical marijuana and worker’s compensation can be accessed at http://www.joepaduda.com/2013/01/medical-marijuana-workers-comp-seriously/.  The survey was conducted by the International Association of Industrial Accident Boards, the website of which [http://www.iaiabc.org/i4a/pages/index.cfm?pageid=1] offers a wealth of information on this subject to its members. [http://www.iaiabc.org/i4a/search/search.cfm]
           Can you can a cannabis advocate? In what undoubtedly is a case of first impression, not merely in its home state but nationally, the Supreme Judicial Court of Maine has ruled that a termination motivated by the employee’s application for a medical-marijuana-shop license does not offend public policy. [Savage v. Maine Pretrial Services, Inc., 58 A.3d 1138 (Maine 2013).]
       The decision, we predict, is only the tip of a wave of litigation to be expected, as more and more jurisdictions sanction medicinal use of marijuana in the face of federal statutes outlawing the possession and sale of “pot.”
        Facts. Jody Savage was employed by the defendant as a case manager for the Family Treatment Drug Court at the Lewiston District Court from June 1, 2009, through June 28, 2010. On March 1, 2010, Savage approached her supervisor to discuss her interest in applying for a license to open a registered medical marijuana dispensary. Savage and her supervisors had a series of additional meetings and communications on this topic. At some point, Savage applied to open a registered medical marijuana dispensary.
      Beginning in April 2010, Savage was disciplined for her work attire and implementation of the compensable time policy, despite not having changed her attire or behavior since she began working at Maine Pretrial Services. Savage was terminated from her employment at Maine Pretrial Services on June 28, 2010.
       Savage alleged in Count I of her complaint that her termination was a violation of the Maine Medical Use of Marijuana Act. Maine Pretrial Services moved to dismiss Savage's complaint on the ground that she failed to state a claim upon which relief could be granted. The court granted the motion to dismiss with respect to several counts, including Count I. The parties later stipulated to the dismissal of the remaining counts, and the court entered its final judgment as to these counts on March 21, 2012.
      Statute doesn’t protect plaintiff.  The court explained that Section 2423-A of the MMUMA authorizes a qualified patient to possess a specified maximum amount of marijuana and/or cultivate mature plants.  The same privilege adheres to a primary caregiver or hospice designated by a qualified patient.  Section 2423-E prohibits penalizing any “person whose conduct is authorized under this chapter.”  No employer, school or landlord is allowed to discriminate against such people.  Physicians are authorized to certify patients as requiring medical marijuana therapy.  [Section 2423-C]  And anyone can provide related paraphernalia to a qualified patient.
       Concluded the court, “Savage has not pleaded any facts in her complaint that she falls into one of these four categories of persons and has conceded on appeal that sections 2423–A through 2423–D do not govern registered dispensaries or applicants who seek to operate registered dispensaries.”  Rather, “The conduct of applying for a license to operate a registered dispensary, although contemplated and required by the Act in order to operate a registered dispensary, is not otherwise illegal and therefore does not require special protection. Those who operate registered dispensaries, unlike mere applicants, have the privileges of possessing, cultivating, and dispensing marijuana.”
      Additionally, added the justices, the MMUMA creates no private right of action against employers.  Its thrust, they said, was to provide immunity from arrest, prosecution, fine, disciplinary action or other penalty that might be imposed by a public entity. 
        Devil in the details. As noted above, 20 states and the District of Columbia have enacted medical-marijuana laws:
  1. Alaska (1998)
  2. Arizona (2010)
  3. California (1996)
  4. Colorado (2000)
  5. Connecticut (2012)
  6. District of Columbia (2010)
  7. Delaware (2011)
  8. Hawaii (200o)
  9. Illinois (2013)
  10. Maine (1999)
  11. Massachusetts (2012)
  12. Michigan (2008)
  13. Montana (2004)
  14. Nevada (2000)
  15. New Hampshire (2013)
  16. New Jersey (2010)
  17. New Mexico (2007)
  18. Oregon (1998)
  19. Rhode Island (2006)
  20. Vermont (2004)
  21. Washington (1998)
      An excellent summary chart can be accessed at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.
Of course, as that table indicates, the devil is, as always, in the details.  You’ll discover that very state statute is unique in some ways.  Some common characteristics are as follows:
    • Residency requirements:  16 of the 18 states require proof of residency in order to be deemed a qualified patient.  Oregon accepts out-of-state applications.  Delaware’s program is not yet operational; it’s unknown whether it will accommodate non-residents.
    • Home cultivation: Patients and caregivers may cultivate their own plants in 15 of the 18 states.  In Arizona the patient must live at least 25 miles away from the nearest dispensary in order to be entitled to grow his/her own.  In Massachusetts a hardship waiver is required.
            Oh, and by the way, four more states have legislation pending as this Bulletin is being written:  Minnesota, New York, Ohio, and Pennsylvania. [http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481]
             But what about the Feds? In October 2009 the U.S. Department of Justice announced its policy on medical marijuana use under color of state law:
Attorney General Eric Holder today announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes. The guidelines make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, while underscoring that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws.
"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said. "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."
The guidelines set forth examples of conduct that would show when individuals are not in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest, including unlawful use of firearms, violence, sales to minors, money laundering, amounts of marijuana inconsistent with purported compliance with state or local law, marketing or excessive financial gains similarly inconsistent with state or local law, illegal possession or sale of other controlled substances, and ties to criminal enterprises.
         The referenced guidelines explain, “The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.” 
        They go on to emphasize DOJ’s determination to make “efficient and rationale use” of its limited enforcement resources.   So, when will the federal government take an interest in marijuana commerce in a medical-marijuana state?
Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:
   unlawful possession or unlawful use of firearms;
   sales to minors;
   financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
   amounts of marijuana inconsistent with purported compliance with state or local law;
   illegal possession or sale of other controlled substances; or
ties to other criminal enterprises.
         While the guidelines are encouraging to those involved in aspects of medical-marijuana use --- patients, caregivers, doctors, and providers --- they contain a caveat, which leaves the door open for discretionary enforcement of federal law.
Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

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