FIRING OVER MEDICAL POT IS UPHELD

In the latest twist to California's controversial medicinal marijuana law,
a Sacramento Superior Court judge ruled Thursday that a man using
doctor-prescribed marijuana has no right to sue his former employer for
firing him.

The ruling, unlike dozens of others involving medicinal marijuana in the
state, is unusual because it involves the workplace. But like other court
challenges, experts said it does little to resolve lingering questions in
the law.

Thursday's ruling found that while fired workers may avoid criminal
prosecution by state officials under Proposition 215, their employers may
still fire them because marijuana is illegal under federal law.

"It puts Californians in a real bind. On the state level, people think that
criminal law is a state matter while the federal government is taking the
position that (marijuana) is illegal," said Julie Davies, a civil rights
professor at the McGeorge School of Law.

Costa Kerestenzis, who represents fired employee Gary Ross, vowed to appeal
Thursday's ruling to the 3rd District Court of Appeal in Sacramento.

In a criminal case last July, the state Supreme Court overturned an
appellate court's decision and found that the state's medical marijuana law
can be used as a defense against criminal charges but does not insulate
people from prosecution.

"Until this is resolved other people will continue to be fired or evicted,"
Kerestenzis said.

Ross was fired after he told officials of Sacramento-based RagingWire
Telecommunications Inc. that he had a doctor's prescription to smoke
marijuana to relieve pain from a back injury. He had been offered a
promotion and a drug test was routine company policy.

He maintained that under the 1996 proposition his smoking pot at home was
not an illegal act because he met the conditions of the initiative.

RagingWire, however, fired him, saying simple possession of the marijuana
is still a crime under federal law. Company officials said they didn't want
to appear as if they were condoning illegal drug use.

"It really needs to be addressed in the Legislature or in Congress, but not
through the court system," said Marlena C. Gibbons, who represented the
information technology firm. "This puts employers in an impossible
situation," Gibbons said after Thursday's ruling.

Judge Joe S. Gray ruled that Ross had no legal right to sue for damages
over the loss of his job as a lead systems administrator, which paid a
$75,000 salary. Central to the legal arguments was whether his use of
marijuana was illegal.

Gray ruled that the law provides only "limited immunity" from California
prosecutions.

In arguments before the judge, Kerestenzis said medicinal marijuana was a
"mandate of the people of California" and "that the federal government
should show respect for the state's sovereignty."

Interrupting the Sacramento attorney's argument, Gray took issue with the
lawyer's terminology.

"I don't like the term medicinal marijuana. Marijuana is marijuana, and
marijuana for medicinal purposes is another thing," Gray said.

The judge declined to address the constitutional issue between the federal
government and the state. And he didn't elaborate on his ruling.

"There is a difference between something being legal and decriminalized" is
all Gray said.

William G. Panzer, an Oakland lawyer and co-author of Proposition 215,
predicted the controversy would spread to other segments of society.

"This is like a crack in the glass. It is starting to finger out into other
areas," Panzer said.

As a result of a bitter fight with law enforcement over the language of the
initiative the law has a fundamental flaw that courts must address, he said.

While it is not a crime in California to possess marijuana for personal use
as long a doctor recommends it, nowhere does the law address where the
marijuana is supposed to come from.

"Possession of a seed or a seedling is still against the law. It is like we
are saying milk is good, but anyone who has a cow goes to jail," Panzer said.

McGeorge professor Michael Vitiello, who has written a law review article
about the proposition, agrees that the law was badly drafted. He doesn't
agree, however, that a flurry of lawsuits is waiting in the wings.

"Unlike other initiatives like "three strikes," which have been interpreted
broadly by court decisions, judges have been reluctant to extend Prop.
215," he said.

Since becoming law, judges have declined to allow possession of marijuana
beyond personal use, cannabis clubs have been shut down and the immunity
has not extended to marijuana farmers, he said.

Thursday's court decision "is one more example of the containment that is
going on," Vitiello said.


Pubdate: Fri, 10 Jan 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Contact: opinion@sacbee.com
Website: http://www.sacbee.com/