FOR IMMEDIATE RELEASE October 7, 1998
AIDS Patient and Federal Medical Marijuana Defendant Peter McWilliams
Sues Attorney General Lungren for His Failure to Enforce Proposition 215
McWilliams Calls for Lungren's Impeachment
PRESS CONFERENCE: 10:00 AM FRIDAY, OCTOBER 9, 1998, HOLLYWOOD ROOSEVELT
HOTEL, ACADEMY ROOM
Los Angeles. AIDS patient and recent cancer survivor Peter McWilliams
filed a lawsuit today, requesting that the Superior Court order
California Attorney General Lungren to uphold his Oath of Office and
fulfill his duties under the California Constitution concerning
Proposition 215.
The suit asks for no monetary damages. It asks the judge to instruct
Attorney General Lungren to fulfill his Oath of Office to "support and
defend the Constitution of the United States and the Constitution of the
State of California against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the Constitution of the United
States and the Constitution of the State of California."
McWilliams' attorney, Thomas Ballanco, commented: "The lawsuit is simply
asking Attorney General Lungren to do his sworn duty, nothing more."
The suit charges AG Lungren with four breaches of the California
Constitution:
1. The California Constitution, Article III Section 3.5 (c) states: "An
administrative agency...has no power. . . (c) 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 that the
enforcement of such statute is prohibited by federal law or federal
regulations."
AG Lungren likes to brush aside Proposition 215 by saying, "Federal law
supercedes state law." According to the California Constitution,
however, the Attorney General must fight such federal encroachment (a
"domestic" "enemy") until "an appellate court has made a determination."
No "appellate court" has made such a "determination" as to the federal
government's power to interfere with Proposition 215, a law specifically
designed to protect the sick of California from governmental
interference in medical treatment.
Indeed, AG Lungren urged federal authorities to override Proposition 215
and arrest medical marijuana users. McWilliams is but one of them.
2. The California Constitution, Article III Section 3 states: "The
powers of state government are legislative, executive, and judicial.
Persons charged with the exercise of one power may not exercise either
of the others except as permitted by this Constitution."
The suit argues that AG Lungren overstepped his executive-branch duties
and acted both judicially and legislatively by giving his own extremely
narrow and limited interpretation of Proposition 215 the full force of
law.
3. The California Constitution, Article V Section 13 states: "It shall
be the duty of the Attorney General to see that the laws of the State
are...adequately enforced."
The lawsuit argues that a quick review of the basic tenants of
Proposition 215 illustrates how inadequately AG Lungren has enforced the
law. To quote from Proposition 215, now the California Health and Safety
Code Section 11362.5, the 1996 California Compassionate Use Act:
(A) To ensure that seriously ill Californians have the right to obtain
and use marijuana for medical purposes.... (B) To ensure that patients
and their primary caregivers who obtain and use marijuana for medical
purposes upon the recommendation of a physician are not subject to
criminal prosecution or sanction. (C) To encourage the federal and state
governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana.
The lawsuit maintains this law is clearly not being "enforced" in
California, although it has been almost two years since 56.4 percent of
California voters made Proposition 215 California law. (450,000 more
Californians voted for Proposition 215 than voted for Lungren as
Attorney General.)
4. The California Constitution, Article V Section 13, states: "It shall
be the duty of the Attorney General to see that the laws of the State
are uniformly...enforced."
The lawsuit claims that one need only compare AG Lungren's vigorous
defense of affirmative-action-ending Proposition 209, which AG Lungren
personally supported, with his open suppression of Proposition 215-both
Propositions voted into law in the same election-to illustrate that AG
Lungren has not "enforced" Proposition 215 "uniformly."
McWilliams, 49, a writer and publisher for 31 years, whose books have
appeared five times on the New York Times Bestseller List, was diagnosed
with AIDS and cancer in March 1996. He successfully used medical
marijuana under his doctor's supervision to treat the side-effects of
prescription medications until July 23, 1998, when he was arrested by
the DEA on federal medical marijuana charges. Since that date, he has
been denied medical marijuana by the federal government and undergoes
drug testing.
All of McWilliams' actions-cultivating, possessing, and using medical
marijuana-fall well within the protection of Proposition 215.
"If Attorney General Lungren had stood up to the federal government
rather than encouraging it to arrest the sick of California," said
McWilliams, "my life would not be in danger today."
The lawsuit maintains AG Lungren has placed McWilliams' life is at risk
in two ways. First, McWilliams faces a mandatory 10-year minimum
sentence in federal prison-a virtual death sentence to someone with
AIDS. Second, without medical marijuana McWilliams suffers extreme
nausea, a side effect of the prescription "combination therapy" used to
treat his AIDS.
"If I can't keep down the medications that are keeping me alive, I will
die. I am a California citizen. I deserve better than this from
California's Attorney General."
The lawsuit also compares AG Lungren's actions with two other West Coast
Attorneys General, Colorado's Attorney General Gale Norton and Oregon's
Attorney General Hardy Myers.
Attorney General Norton made a vigorous defense of the Colorado State
referendum measure, Amendment 2, taking the battle all the way to U.S.
Supreme Court. Amendment 2 limited gay rights. Attorney General Norton's
personal belief and political stance, however, is pro-gay rights.
Nevertheless, she did her duty as Attorney General and fought to fulfill
the will of the people of Colorado.
Oregon's Attorney General Myers has boldly defended his state's assisted
suicide referendum, stating, "In 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." AG Myers even stood up to the DEA. "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." Attorney General Reno agreed, and prohibited the
DEA from interfering with the doctor-patient relationship in Oregon.
McWilliams sent a letter to AG Lungren on August 31, 1998, asking AG
Lungren for protection from federal intervention into McWilliams'
medical treatment, protection McWilliams thought Proposition 215
provided him. The AG's office refused the request.
In addition to the lawsuit, McWilliams will be contacting the State
Legislature, calling for the impeachment of AG Lungren based on the
allegations in the lawsuit.
"Attorney General Lungren has lately been praising his 'character,'
presumably because he claims to have never cheated on his wife," said
McWilliams. "But doesn't fulfilling your Oath of Office have something
to do with character, too?"
A web site has been established (www.lungrendoyourduty.com), containing
documents relevant to the case. This web site is for both press and
public.
CONTACT: Ed Hashia 213-650-9571 x125
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