Letter to California Attorney General Lungren from Peter McWilliams
Honorable
Daniel E. Lungren
August 31, 1998 Dear Attorney General Lungren, I am an AIDS patient and recent cancer survivor. I own a Los Angeles-based publishing company, Prelude Press, Inc., which employs six people. Since my dual diagnosis in March 1996, I have used medical marijuana—under the guidance and supervision of three California physicians—to fight the nausea caused by the prescription anti-AIDS and anti-cancer medications I must take. If I cannot keep down my life-saving medications, I will die. Medical marijuana, in my case, has been 99.9 percent effective in alleviating nausea for more than two years. On July 23, 1998, I was arrested by DEA Special Agents and charged with nine counts of marijuana cultivation, possession, intent to distribute, and a variety of "conspiracy" charges related to marijuana. No other drugs are mentioned; no cash was found. In fact, two of my co-conspirators are fellow medical marijuana patients. Each has a doctor’s written recommendation for medical marijuana. Each is a California resident. The remaining co-conspirators merely happened to be in the wrong place at the wrong time. There is not a single incident of marijuana sales in the federal government’s extensive indictment. I will not take the time to delineate my defense here. I can state that what I was doing was fully covered by California Health and Safety Code Section 11362.5, the 1996 California Compassionate Use Act, also known as Proposition 215. I ask you, as the principal law enforcement officer of the state, to fulfill your Oath of Office and your duties under the California Constitution and come to my immediate legal aid. I know defending a medical marijuana patient who was peaceably trying to treat his life-threatening illness under a doctor’s care while following the provisions of 11362.5 is counter to your own personal beliefs and policy. It is, however, the law of California, and it is your duty to "protect and defend" me in this case, whether you personally want to or not. I have four reasons for making this request, all grounded in the California Constitution: 1. The California Constitution, Article III Section 3.5 states: "An administrative agency has no power . . . to declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination." You cannot deny my request with the simple brush-off you have used so often about 11362.5, "Federal law supercedes state law." According to the California Constitution, the one you have sworn to uphold, the Attorney General must fight such federal encroachment until an appellate court has made a determination. As you know, no "appellate court" has made a "determination" as to the federal government’s power to interfere with the private medical treatment and the laws of California protecting the sick of California. It appears you made a determination on this matter by December 30, 1997—without ever bothering to check with the judicial branch of government. You stated on that date that you agreed with the harsh medical marijuana line drawn by the federal government, essentially ignoring the will of 56.4 percent of the California voters. You said you reached such a conclusion after "recent discussions…with federal officials." Alas, the California Constitution calls on you to do more than have "discussions" with "federal officials." Indeed, you have publicly—and one must assume privately—lobbied for an increase in federal law enforcement on marijuana within the state of California. You stated, for example, that the federal minimum thresholds for marijuana were too high. As you told the press on December 30, 1997: "There have been complaints in the past by local law enforcement officials on cases they thought ought to go to federal court and U.S. attorneys saying, ‘No you don't have a large enough amount of marijuana for us to pursue,’" In my case, growing 300 plants would not have been a federal case. I would be charged—if charged at all—under California law, tried by a California jury, under California law. Please keep in mind, I have never sold a drug in my life. 2. Should you have any doubts as to your role in enforcing 11362.5, allow me to remind you that the California Constitution, Article III Section 3 states: "Persons charged with the exercise of one power (legislative, executive or judicial) may not exercise either of the others except as permitted by this Constitution." You, in consort with "federal officials," have given your own extremely narrow and limited interpretation of 11362.5 the full force and effect of law. If you don’t agree with the will of the people, then it is a matter for the courts to decide. The California Constitution, in two places, prohibits the political fiat you have forced on the sick and dying of California, myself included. 3. The California Constitution, Article V Section 13 states: "The AG has the duty to see that the laws of the state are . . . adequately enforced." The American Heritage Dictionary defines "enforced" as, "To compel observance of or obedience to," and "adequate" as "Sufficient to satisfy a requirement or meet a need." Let’s review how "adequately" you have "enforced" the Compassionate Use Act of 1996. Allow me to quote the three major elements of 11362.5 and compare each with my own present situation:
You have certainly done nothing to "ensure" me of "the right to obtain and use marijuana for medical purposes." Indeed, if I use medical marijuana today, the federal authorities will take away my mother’s house and my brother’s house—such are the terms of my $250,000 release bond. (I spent a month in federal custody.)
Again, you have done nothing to "ensure" this provision, so I am facing a mandatory ten-year (possible life) sentence and a $4,000,000 fine—all for actions covered under 11362.5, which assures me that I will not go to jail as one who "possesses or cultivates marijuana for the personal medical purposes of the patient."
Here you have not only failed but have waged your own campaign against this very clear mandate from the people of California. Were you to have fulfilled this portion of California Law, I would not be in jeopardy today. Allow me to give but two examples of Western-state Attorneys General who have acted courageously—and, in one case, against her personal convictions—to fulfill their Oaths of Office and the laws of their states against federal encroachment. This is to counter your expected argument, "There was nothing I could have done!" First, consider Oregon’s physician-assisted suicide law. The federal government was uniformly against the referendum and firmly in favor of the federal government, through the DEA, stepping in. Here is an excerpt from an April 1998 letter sent to Attorney General Reno from 138 members of Congress, including House Speaker Newt Gingrich, Senator Orrin Hatch, and Rep. Henry Hyde, the latter two, as you know, chairmen of the Senate and House judiciary committees:
Sound familiar? Among the signers of the letter were 34 senators, including seven members of the 18-member Senate Judiciary Committee. Of 104 signers in the House, 12 are members of the 35-member House Judiciary Committee. Those committees oversee the Justice Department. Only six members of Congress—all five Oregon Democrats plus Rep. Barney Frank—have argued that the federal government should not intervene in Oregon law. Nevertheless, Oregon’s Attorney General, Hardy Myers, stood firm, maintaining that the central issue is "the question of who has the authority to control the practice of medicine—the federal government or the states…. Oregon voters have made the decision that assisted suicide is a legitimate medical purpose." Attorney General Myers continued: "Our view is that this agency [the DEA] does not have the authority to interpret medical purpose in a way that interferes with Oregon's assisted-suicide law." Here an Attorney General fought the federal government for the right of a state to have physicians kill people. Surely, had you applied yourself, you could have just as successfully argued that physicians can recommend a medicine that has never caused an overdose or allergic-reaction death. A second example is Colorado’s Attorney General, Gale Norton’s, vigorous defense of the state referendum measure, Amendment 2. She took it all the way to U.S. Supreme Court. Amendment 2 limited gay rights. Attorney General Norton’s personal belief and political stance was pro-gay. Nonetheless, she recognized her higher calling—her Oath to defend the Colorado Constitution against all enemies, foreign and domestic. She took a stand that made her unpopular with her own party, her circle of friends, and even members of her family. You, on the other hand, have continually failed to enforce a referendum measure merely because you do not personally like it. Might I point out that 450,000 more Californians voted for Proposition 215 than voted for you as Attorney General? 4. The California Constitution, Article V Section 13, states: "The Attorney General has the duty to see that the laws of the state are uniformly . . . enforced." The American Heritage Dictionary defines the word uniform as: 1. Always the same, as in character or degree; unvarying. 2. Conforming to one principle, standard, or rule; consistent. 3. Being the same as or consonant with another or others. 4. Unvaried in texture, color, or design. One need only compare your own vigorous defense of Proposition 209 with your suppression of Proposition 215—both voted into law in the same election—to illustrate that you have not "enforced" 11362.5 "uniformly." In conclusion, allow me to challenge a misconception that you have often repeated. Often, you have referred to "Proposition 215 proponents" as those whose job it is to protect and defend 11362.5. Not so. Proposition 215 was a political campaign. Its proponents have gone their several ways. It is a piece of history. The California Health & Safety Code 11362.5 is, however, the law, and you are—by your Oath of Office and the California Constitution—its primary proponent. Like it or not. I must, therefore, respectfully demand that you, as Attorney General of California, immediately intercede and defend me against the federal government with all the power of your office and of your persuasion. If your response does not appear to provide me the protections guaranteed by state law, I will file suit to compel your compliance with your oath of office and with the referenced sections of the California Constitution. Sincerely,
Peter McWilliams P.S. Ask Bill Buckley whether or not I’m a drug dealer.
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