By Timothy M. Phelps
A recent federal court ruling in San Francisco is a blow to Justice Department efforts to limit the sale of medical marijuana in California and 22 other states, according to legal experts and government officials. In a scathing opinion last month, U.S. District Court Judge Charles R. Breyer challenged the Justice Department's narrow interpretation of a congressional bill that bars the department from spending any money to prevent a state from implementing its medical marijuana laws.
Justice Department lawyers say the budgetary restriction does not stop them from prosecuting medical marijuana users or providers, a claim that Breyer said "so tortured the plain meaning of the statute that it must be quoted to ensure credible articulation."
The legal controversy is the latest clash between federal law, which still lists marijuana as a dangerous illegal drug, and the movement in some states to allow its use for medical and sometimes recreational purposes.
The legalization push hit a roadblock Tuesday in Ohio, however, when voters overwhelmingly rejected a proposed state constitutional amendment to allow the recreational and medical use of marijuana. The initiative failed to carry a single county.
Including California, 23 states permit medical marijuana use in some form. Four states also have legalized the sale of marijuana for recreational use. Ohio would have been the first state in the Midwest to do so.
Two years ago, then-Deputy Attorney General James M. Cole wrote a memo to all U.S. attorneys saying the department would not prosecute marijuana cases in states where the drug is legal if a state had a strong regulatory system, including bans on sales to minors and across state lines.
But the Justice Department has continued to prosecute isolated medical marijuana cases in California, Washington state, Montana and elsewhere. Cole said in an interview when he left Justice earlier this year that California's system, which relies on local jurisdictions to adopt their own regulations, was not sufficient to meet the federal concerns.
California law on medical marijuana "is a bloody mess," said Douglas Berman, a law professor at Ohio State University who follows marijuana issues.
Last month, Democratic California Gov. Jerry Brown signed three laws to create a statewide regulatory system for medical marijuana. They will not go into full effect until 2018, however.
Melinda Haag, who was U.S. attorney in San Francisco until September, was particularly aggressive in prosecuting medical marijuana cases in the Bay area.
In 2011, her office helped shut down the Marin Alliance for Medical Marijuana in Marin County. That group brought the lawsuit that won the ruling from Breyer.
Medical marijuana dispensers and users in the Bay area had consistently lost in federal court despite support from local jurisdictions.
But last year, Congress placed a restriction on the Justice Department budget prohibiting it from spending any money to block states from implementing their medical marijuana laws. It did not remove marijuana from the federal list of restricted drugs, however.
The bipartisan measure, sponsored in the House by Rep. Sam Farr, D-Calif., and Rep. Dana Rohrabacher, R-Calif., expires in December but is likely to be renewed, according to congressional aides.
"The mere threat of prosecution of individuals acting in compliance with state law by the Department of Justice is enough to have a chilling effect on those who are interested in using or providing marijuana for medicinal purposes," said Jeff Vanderslice, an aide to Rohrabacher.
The 9th Circuit Court of Appeals recently ruled against Oakland's effort to keep open the large-scale Harborside Health Center. But Steve DeAngelo, who runs it, said Harborside will invoke Breyer's ruling to prevent Justice Department lawyers from trying to enforce it.
Breyer's ruling is not binding on other federal judges, but he is highly regarded in the judiciary and is the younger brother of Supreme Court Justice Stephen Breyer.
Between the Breyer ruling and new state regulations, Harborside and other clinics should be able to fend off additional efforts by the Justice Department until 2016, when marijuana advocates expect the state's voters to legalize marijuana for recreational use as well as medicinal, DeAngelo said.
"One way or another we expect to survive this case," DeAngelo said.