You Can Still Be Fired for Marijuana Use — Even if It’s Medical Marijuana

As expected, Alex Coolman at Drug Law Blog is all over today’s Supreme Court decision in Ross v. Raginwire Telecommunications, Inc., case no. S138130 (Jan. 24, 2008), in which the divided Supremes hold that the Compassionate Use Act, which decriminalized medical use of marijuana, does not preclude an employer from terminating an employee for such use. Coolman’s analysis is detailed, and includes YouTube video of portions of the oral argument and commentary on the tension created with City of Garden Grove v. Superior Court, which I blogged about here.

Justice Kennard’s concurring and dissenting opinion in Ross notes Ragingwire’s argument that even Ross’s off-the-job use of marijuana might leave him under its influence at work, and her opinion also notes that Ross did not seek accommodation by permitting him to use marijuana at work. So, I got to wondering . . . .

If pain is chronic, you pretty much have it all the time, right? How do you forego marijuana use during working hours? If so, do you use a substitute pain reliever then or do you merely work with the pain? I’m genuinely curious about this. If anyone reading this uses medical marijuana for chronic pain, or at least is someone familiar with such use, could you answer those questions?

Medical Marijuana Buzz . . . and Writ Standing, Too

Looks like the new marijuana radio talk show on Inland Empire radio station KCAA (which is also available via podcast, and which I learned about from this post at Drug Law Blog) will have plenty to talk about tomorrow. Yesterday, in City of Garden Grove v. Superior Court (Kha), case no. G036250 (4th Dist. Nov. 28, 2007) the Court of Appeal denied a writ petition by the City of Garden Grove (joined by 4 law enforcement associations and 15 cities all over the state as Amici Curiae) seeking to vacate a trial court order to its police department to return medical marijuana seized from a person that the DA declined to prosecute for lack of evidence once the DA confirmed that the marijuana was legally possessed under California’s medical marijuana law at the time it was seized.

Noting that the city’s predicament of being caught between the state’s medical marijuana law and the federal illegality of marijuana presented “terra incognita” that required “analytical accouchement,” the court summarized its holding at the outset of its opinion:

[W]e are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less.

We may soon learn how persuasive the opinion is. Drug Law Blog posted just yesterday about a Colorado case in which a trial court ordered the return of marijuana seized from a couple who grew it for their own medical use and also dispensed it to others for medical use. The Colorado appellate court (should the case get there) is sure to examine Garden Grove (as well as State v.Kama (2002) 178 Ore. App. 564).

There is an appellate procedure angle to the case, as well. (I’ll leave any detailed discussion of the merits to Drug Law Blog or others sure to cover them). The issue is standing.

The attorney general challenged the city’s standing to bring the petition, which required a lengthy explanation from the court about whether the city had the “beneficial interest” normally required to confer standing on a petitioner. As the court notes, for a party to be “benefically interested,” it must have “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”

The court notes initially that the city’s purely ministerial role in returning the marijuana precludes a beneficial interest generally, and that the city cannot claim a beneficial interest arising from the risk of prosecution for violating federal law because that risk does not exist in light of the federal immunity statute (21 U.S.C. § 885(d)). Moreover, the city has nothing to lose by returning the marijuana because it was not needed as evidence or to further an investigation.

But the court finds standing anyway:

That said, we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.

Moreover, media reports indicate the question of whether local authorities must return lawfully seized marijuana to its owner once state criminal proceedings have been terminated in the owner’s favor is a topical issue that has produced inconsistent outcomes throughout the state. [Citing news coverage of inconsistent actions taken by various law enforcement agencies throughout the state.]

These considerations militate strongly in favor of granting the City standing. [Citations.] So does the fact this case implicates constitutional concerns respecting the relationship between state and federal law. Courts have recognized that, consistent with our federalist system of government, state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds. [Citations.] Standing is also favored if an interested party may otherwise find it difficult or impossible to challenge the decision at issue. [Citations.] And here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding. For all these reasons, we conclude the City has standing to challenge the trial court’s order.

When considering writ review, don’t forget the importance of public interest considerations. After all, you need all the help you can get in beating that 90%+ summary denial rate.

UPDATE (11/29/07): As expected, Alex Coolman weighs in on Garden Gove in this post at Drug Law Blog. It’s a good discussion of the merits, and Alex suggests the Supreme Court should consider Garden Grove’s reasoning as it decides Ross v. Ragingwire, which has already been argued.

UPDATE (11/30/07): More coverage of the case: Law.com, Los Angeles Times, Medical Marijuana of America.