SB 94-MEDICAL USE OF MARIJUANA Number 576 CHAIRMAN MILLER brought up SB 94, relating to the medical use of marijuana initiative. He stated that SB 94 is a very controversial bill that raises emotions on both sides of the issue, but he believed a fair discussion could take place about policies and which direction the state should be heading. He cautioned, "be forewarned, I will not tolerate anybody in the audience raising the personal motives of anybody in the State Senate." He would not tolerate anybody questioning the motives or attacking a senator personally. "We may attack their legislation, that's fair game, but not them personally." He warned that he would rule anybody out of order who does that. TAPE 99-14, SIDE B Number 588 CHAIRMAN MILLER repeated that SB 94 would not move out today because of the number of people waiting to testify and the committee having to adjourn and vacate the room by 3:00. He was unsure when the next hearing on SB 94 would take place. He set a 2-minute time limit on all speakers except the bill's sponsor, Senator Leman, and former state Representative David Finkelstein, representing Alaskans for Medical Rights, the sponsor of the initiative. SENATOR LOREN LEMAN, expressed appreciation for the committee's willingness to hear the bill. SB 94 addresses an issue that is timely and needs to be debated. It proposes several amendments to the medical marijuana initiative that was enacted last November. The amendments are designed to close loopholes in the initiative and ensure that it works as intended and as advertised. The bill was drafted with input from Attorneys General in the Department of Law, and the Department of Public Safety. A draft CS for the committee's consideration is from the Department of Health & Social Services and youth counselors from around the state, and law enforcement personnel from Anchorage and other communities. These people told him they had trouble with the initiative as it is worded and it would cause them trouble enforcing the drug laws of Alaska. The initiative can't be repealed but it can be amended to work as intended. SENATOR LEMAN continued, his aim is to ensure that marijuana is legally available only for valid medical reasons as defined and intended in the initiative, and not for recreational use. The people voted to recriminalize the recreational use of marijuana when Ballot Measure 2 was approved in 1990. Sponsors of Ballot Measure 8 in the 1998 official election pamphlet described their proposal as designed to help terminally ill patients and others suffering from debilitating medical conditions. Marijuana would still be illegal for non-medical use, and Ballot Measure 8 would provide full protection against abuse of the new law. Unfortunately, SENATOR LEMAN said, close study of the initiative by legal experts and those who work in law enforcement revealed there is plenty or room for abuse of the new law. "It is rife with legal loopholes, ill-defined terms and vague language." These are well outlined in the bill's sectional analysis and he wouldn't discuss them in detail today. SENATOR LEMAN said he believes the Legislature, as public officials, must respect and honor the views of voters. In this case of marijuana policy, however, there are two ballot initiatives to consider. On one hand, the 1990 initiative affirmed that possession, use or distribution is a criminal act, punishable by imprisonment of up to 90 days and fines up to $1,000. These are not trivial punishments and reveal how seriously the voters take the problem of drug abuse, particularly among the youth. On the other hand, Ballot Measure 8 from last year proposed to allow unlimited marijuana use for valid medical purposes. Because the latter initiative does not repeal the earlier ballot measure, the Legislature's job is to make both measures work together. SB 94 is designed to reconcile the provisions of both initiatives, which both represent the majority will of Alaskan voters. SENATOR LEMAN stated he believes the constitution's provision for voter-initiated ballot measures is a great freedom, giving citizens a direct voice in crafting laws under which we live. However, the crafters of Alaska's constitution recognized one potential shortcoming of ballot initiatives. Unlike legislative measures, voter initiatives are not subjected to scrutiny or the amendment process before their final presentation to the voters. Accordingly, the crafters included in the constitution a provision allowing the Legislature to make needed amendments to approved ballot initiatives. This authority is found in Article XI, Section 6. The Legislature has exercised this authority in the past, and in response to legal challenges the Alaska Supreme Court has upheld the Legislature's authority to do so. SENATOR LEMAN cited 1975 Warren v. Boucher in which the Alaska Supreme Court described why the constitution grants this power to the Legislature. He said, clearly, the Legislature has the authority, acting on behalf of the people, to pass amendments but not to repeal the initiative. The constitution which grants the Legislature the authority to amend initiatives was ratified by the people. The voter approval of Ballot Measure 2 in 1990 is no less valuable a measure of public opinion than the passage of Ballot 8 in 1998. He hoped these facts would put to rest "venomous rhetoric about defying the will of the people," stating the greatest service the Legislature can provide the public is to have an intelligent, informed and civil debate on the merits of the legislation. The key elements of SB 94 clarify the standards the physician would use and that registration would be required. Law enforcement could access the information for purposes of an investigation, but it would not be a public document. It further restricts the use and display of medical marijuana to the doctor's office or the home of the patient or primary care giver. It defines primary care giver as someone over 21 who hasn't been convicted of a felony under Alaska's controlled substance laws. The law enforcement people will discuss why these elements of the bill are important to them in enforcing the drug laws of Alaska. SENATOR LEMAN concluded that his intent in introducing this bill is to lay a very important topic on the table. He has met with David Finkelstein and staff in the Department of Law, Department of Public Safety, Department of Health & Social Services, the lobbyist opposing this effort, and the Governor's Office. He said he intends to work cooperatively to accomplish legislative objectives that allow enforcement of the drug laws of Alaska. Number 437 MR. DAVID FINKELSTEIN, representing Alaskans for Medical Rights, encouraged people who can't testify today to leave a short statement at the LIOs to give to the committee. He asserted the provisions of SB 94 are overwhelming, and a complete re-write of the initiative. He said it took him over five hours to read and understand the bill, cross-referencing it with the existing law. There are over 40 major amendments to the existing law, which can be counted in the sponsor's sectional analysis, not including additional technical and conforming amendments. As he could not address these 40 amendments in the time available, MR. FINKELSTEIN talked about the two categories they fall into. First, minor amendments based on misinterpretations of the law or based on interpretation questions, or correcting citations. He stated any of these changes that are necessary can be accomplished either through the current regulation process, with the comment period open through Friday, March 26; or in the Revisor's Bill. He said some of the amendments just aren't necessary. The second category are provisions that would eliminate otherwise qualified patients from the initiative. For example, no patients would be covered except those with cancer, glaucoma or AIDS, and then only where it causes them "severe and chronic pain and nausea." It doesn't say "severe or chronic..." It is his experience with about one hundred patients who use medical marijuana that most of them would be excluded by just this provision alone. Another provision requires doctors to make a finding that there are no other legal treatments that can be tolerated by the patient that are as effective. There will always be other drugs that are effective, but many of those are dangerous or have side effects and, he said, no doctor would be willing to make an analytic finding like this when they can prescribe other narcotics and drugs with no findings whatsoever. "The sponsor's apparent fear is that many doctors will get carried away recommending medical marijuana." In his view it is not very likely. Only licensed doctors can make the recommendation. Under existing statute AS 08.64.101 doctors can be investigated, and if necessary, even lose their license. SB 94 eliminates the protection patients receive under the initiative and replaces it with an affirmative defense. This places the burden of proof with the patient to prove their case. Even a patient with ID card, complying with the law and possessing less than an ounce would still have to demonstrate that the entire amount in their possession was intended for their own medical use. He asked how a patient can prove that. In conclusion, MR. FINKELSTEIN stated that SB 94 is not necessary and if passed, will eliminate hope for all the patients who would be helped under the initiative. He offered to work with the sponsor during the interim to see which concerns were addressed through the regulation process, check whether the registration is working as intended, and address any problems that may have arisen under the law. He asked, on behalf of Alaskans for Medical Rights, to be given a chance to let this initiative work. Number 375 CHAIRMAN MILLER stated Mr. Finkelstein's reputation in Juneau has always been one for "open government and full disclosure." He mentioned the talk about the expensive ad campaign floating around the state. While acknowledging Mr. Finkelstein not legally required to disclose the source of the the funds to his group, CHAIRMAN MILLER asked in the spirit of open government where those funds came from. MR. FINKELSTEIN replied that he respects and considers Senator Leman a worthy adversary, but Alaskans for Medical Rights which represents the majority of Alaskans wasn't included in any of the deliberations on how this bill was developed. He stated the cost of the ad campaign was probably $4,000 to $5,000 and it came entirely from individuals in and outside Alaska, with no government or PAC money involved. SENATOR WILKEN echoed Chairman Miller's request. He didn't know how he stands on SB 94, but he opposed groups that try to influence public opinion through the media. He would like to know all donors of over $100, and asked that the information be sent to the committee in the interest of full disclosure. CHAIRMAN MILLER again promised that SB 94 would not move from committee until everyone wanting to testify had the opportunity to do so. He apologized to those who will not have that chance today. Number 331 LT. AUDIE HOLLOWAY, Narcotics Enforcement Division, Anchorage Police Department, spoke in support of SB 94 which gives some clear guidelines for the police department in dealing with those people who want to take advantage of the initiative. He said, "I can assure you that we will have a lot of people who will try to take advantage of it." He has a limited number of people working on a lot of drug cases. A standardized registration and format for those people who are using medical marijuana and deserving of it would help in cutting down the workload of the department. He doesn't have time to investigate people with legitimate use for the plant. Rigorous standards should be in place. A lot of people in Alaska make a lot of money off the illegal use of marijuana, and he suspects money is coming from "that area to keep it as vague as possible." He reads police reports everyday about people who are driving and using marijuana. There needs to be a standard addressing that, to prevent hiding behind medical use and driving because it's as bad as alcohol in that regard. MR. RICHARD WELCH stated he is a long-time resident of Fairbanks and has HIV and Hepatitis C and chronic pain. This bill would severely limit what his doctor can tell him he can have. He's also a member of the Interior HIV Care Consortium, a group that performs needs assessments and quality assurance tasks regarding HIV care. The consortium is sponsored by the Interior Aids Association whose executive director could not stay, but wanted Mr. Welch to convey that they object to any effort to change the peoples' initiative about medical marijuana. Number 276 CAPT. BILL MILLER, Headquarters, Anchorage Police Department, stated headquarters deals with major crimes including homicides, sexual assaults and narcotics. His officers must have the ability to distinguish between what is legal and what is not. Officers need definitions and clear understanding. This bill would clear up confusion, and prevent wasting time and resources. It defines who can prescribe the medical marijuana and who decides who can prescribe it. MR.JAY SNODDERLY, Ward Cove, stated he is opposed to anything that would restrict the wishes of the people as expressed last November. He admitted he does not understand the bill, so he doesn't know if it would do that, but he's heard it both ways. CHAIRMAN MILLER stated he would hold SB 94 and take further testimony the next time it is brought up, and again apologized for the time constraints. The committee will take up bills previously heard, the education bills and the proposed CS for SB 73, next Monday, March 29. He thanked the members for their hard work in his absence, and adjourned at 3:01 p.m.