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Wednesday, December 26, 2012

Mendocino Fights Feds on Medical Marijuana Subpoena

Posted By on Wed, Dec 26, 2012 at 2:50 PM

click to enlarge Now a battleground state
  • Now a battleground state

A year ago, the federal Justice Department took aim at legal medical marijuana in Mendocino County. The feds warned that the county's novel cannabis plant licensing program, which generated cash and kept sheriffs patrolling the rural area, violated federal law and needed to go; otherwise county officials would be sued. The county rolled over; to take on the federal government would be to enter into a David vs. Goliath situation, one supervisor said.

In October, U.S. Attorney for Northern California Melinda Haag came knocking again. This time, she led a federal grand jury to issue a subpoena demanding the county hand over all documents relating to the licensing program, including names and addresses of any legal cannabis grower in the county.

David, meet Goliath.

The county is fighting the subpoena, according to court filings made Friday, and will argue that the Justice Department is violating "the principles of federalism which are basic to our system of government."

The October surprise from the feds demanded -- on CD-ROM, no less -- "all records" related to Mendocino County's 9.31 program. The records included emails and communications between the growers and the county, and, in many cases, include GPS coordinates of their gardens, according to one program participant speaking on condition of anonymity. 

The program went well for two years, before it was canceled abruptly about a year ago under pressure from the feds. Over 100 cannabis growers paid inspection fees to the Sheriff's Department, which then issued zip ties to mark pot plants as bona-fide legal. The program netted the county as much as $600,000, according to Board estimates.

It was rumored that the Justice Department will seek to seize the funds as well as pursue prosecutions -- against county officials as well as program participants, some of whom have been raided, but not prosecuted, by DEA agents.

The subpoena gave county officials until Jan. 8 to reply. This time, the Mendocino County Board of Supervisors decided to step up and fight back. The board voted unanimously to fight the subpoena, Supervisor Dan Hamburg told SF Weekly on Wednesday.

The request is "overly broad" and "too burdensome," according to documents filed Friday by County Counsel Thomas Parker and San Francisco attorney Bill Osterhoudt, hired by the county expressly for this purpose. The attorneys went further and laid out four reasons why the subpoena should be quashed. While all are separate points, most deal with the issue of confidentiality. 

The subpoena is "unreasonable and burdensome," Parker and Osterhoudt wrote, because it requires county officials to violate their confidentiality agreements with the medical patients who applied for the 9.31 permits; it would open those same medical patients to federal prosecution; it would open county officials to prosecution from the same medical patients for violating a confidentiality agreement; and violates county officials' ability to "conduct the County's governmental affairs without unwarranted and unreasonable scrutiny."

What's more, Mendocino will argue, the request seeks "production of material which is not relevant to any legitimate grand jury investigation," it "chills First Amendment rights of physicians and patients," and is an "unwarranted" intrusion into a situation legal under California state law, "basic to our system of government."

In other words, the unscheduled upcoming hearing will be of interest to Constitutional scholars and drug war advocates alike. 

Far from spooking county officials, the subpoena appears to have galvanized them against federal intrusion, Hamburg says.

"Even supervisors who opposed 9.31 initially -- and the 99 plant program in particular -- believed the subpoena to be overly broad and unclear as to its intent," Hamburg writes in an e-mail Wednesday.

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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.


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