Pubdate: Wed, 08 Oct 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Author: Claire Cooper, Bee Legal Affairs Writer
Bookmark: (Cannabis - Medicinal)


Two Appeals Center On Issues Of States' And Patients' Rights.

SAN FRANCISCO -- A federal appeals court took up two more medical marijuana 
cases Tuesday as it prepared to issue a series of critical decisions on the 
future of California's pot initiative in the face of federal attempts to 
squelch it. The 9th U.S. Circuit Court of Appeals panel did not commit 
itself one way or the other on the cutting-edge states' rights and 
patients' rights issues.

But in a narrower case heard Tuesday, the judges appeared receptive to 
arguments from the plaintiff, Dr. Molly Fry of Cool.

Fry is suing the U.S. Drug Enforcement Administration to reinstate her 
federal certificate to prescribe drugs. It was revoked last December for 
prescribing pot.

The DEA claimed Fry had waived her defense by not responding to an order to 
show cause why her registration shouldn't be lifted. Fry said her lawyer at 
the time, J. David Nick, was supposed to apply for a hearing.

"This person was a victim of her attorney," Fry's current lawyer, Laurence 
Lichter, told the 9th Circuit.

Mark Quinlivan, a U.S. Department of Justice lawyer representing the DEA, 
countered that the revocation decision was final and couldn't be reopened. 
He said the agency found no evidence that Nick had applied for a hearing.

But Judge Harry Pregerson of Woodland Hills said, "It seems to me like 
she's got a valid excuse here." And he asked Quinlivan: "What's the big 
deal to having a hearing?"

Judge Richard Paez of Pasadena observed that the DEA could reopen Fry's 
case for good cause, and the third member of the 9th Circuit panel, C. 
Arlen Beam, a visiting 8th Circuit judge, said the case could be sent to 
the DEA with instructions to work it out.

The judges seemed more skeptical of the plaintiffs' claims in a second 
case, one with broad implications for the state's 1996 medical marijuana 

The appeal was filed by two women who want a court order to block federal 
raids against them or the pot they say they need for survival. Despite the 
legality of medical marijuana under California state law, virtually all pot 
cultivation and use remains illegal under the federal Controlled Substances 
Act of 1970.

Angel Raich of Oakland and Diane Monson of Oroville claim that because they 
scrupulously avoid connections with interstate commerce in obtaining their 
pot supplies, the federal government has no power to interfere with them.

Raich, who suffers from an inoperable brain tumor and other illnesses, gets 
her pot free from two caregivers, who use only California-produced water, 
nutrients, supplies and equipment in growing it, she says. Monson, who 
suffers from chronic pain, grows her own pot plants in her garden.

Quinlivan argued in opposition to their combined appeal that the U.S. 
Supreme Court foreclosed any type of medical necessity justification for 
marijuana use when it ruled two years ago against the Oakland Cannabis 
Buyers Cooperative.

Various other cases, involving attempts by pot cooperatives to get on legal 
footing, were argued before a different 9th Circuit panel last month and 
are awaiting decisions.

But Randy Barnett, a Boston University law professor representing Raich and 
Monson, said there was an essential difference.

"What we deal with here is completely non-economic behavior," he argued, 
citing a series of U.S. Supreme Court decisions limiting Congress' power to 
regulate in-state conduct.

The judges, however, mentioned other precedents that do not support a 
personal right to use illegal drugs.

There's no deadline for the court's decisions.
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