MMJ Progress...

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SEATTLE POST-INTELLIGENCER

http://seattlepi.nwsource.com/local/152846_marijuana17.html

 

Ruling bolsters medical marijuana law

 

Court says those who use for medicinal reasons are exempt

 

Wednesday, December 17, 2003

 

By SAM SKOLNIK

SEATTLE POST-INTELLIGENCER REPORTER

 

A federal court ruling yesterday that would permit some medical

marijuana use bolsters what

proponents say is the clear -- and fair -- judicial trend to allow state

medical marijuana laws like

Washington's to stand.

 

A 9th U.S. Circuit Court of Appeals panel said yesterday that a

congressional act outlawing

marijuana may not apply to sick people with a doctor's recommendation in

states that have

approved medical marijuana laws, such as Washington.

 

And in its wake, a top federal prosecutor in Seattle said his office

likely would continue its policy of

not prosecuting those who smoke pot on their doctor's advice.

 

Medical marijuana proponents were ecstatic.

 

" This is one of the best decisions I've seen in a really long time, "

said Lee Newbury, director of the

South Puget Sound chapter of the National Organization for the Reform of

Marijuana Laws.

 

" This is the first step for getting state's rights for patients, "

Newbury said. " When the federal

government is trying to supersede the will of the citizens who have

passed these laws, something's

wrong. "

 

The federal court panel in San Francisco, ruling 2-1 in a rare

late-afternoon filing, said prosecuting

these medical marijuana users under a 1970 federal law is

unconstitutional if the marijuana isn't sold,

transported across state lines or used for non-medicinal purposes.

 

" The intrastate, non-commercial cultivation, possession and use of

marijuana for personal medical

purposes on the advice of a physician is, in fact, different in kind

from drug trafficking, " Judge Harry

Pregerson wrote for the majority.

 

The court added that " this limited use is clearly distinct from the

broader illicit drug market, as well

as any broader commercial market for medical marijuana, insofar as the

medical marijuana at issue

in this case is not intended for, nor does it enter, the stream of

commerce. "

 

In dissent, Judge C. Arlen Beam said that Congress could regulate

medical marijuana, noting that

the Supreme Court has declared that grain is subject to federal

regulation even if the grower never

sold it and used it solely for his family.

 

Washington voters passed their medical marijuana law in 1998. Initiative

692, which passed with 59

percent of the vote, gives doctors the right to recommend -- but not

prescribe -- marijuana for

people suffering from cancer, AIDS, multiple sclerosis, glaucoma and

other conditions.

 

Yesterday's appellate panel decision was a blow to the Justice

Department, which argued that

medical marijuana laws in nine states were trumped by the Controlled

Substances Act, which

outlawed marijuana, heroin and other drugs.

 

Mark Bartlett, first assistant U.S. attorney in Seattle, said he was

surprised by the decision,

believing that case law backed the federal government's position. But he

said that the ruling's

" impact will be minimal. "

 

Bartlett said that unlike federal prosecutors in Northern California and

other jurisdictions, he could

not recall any cases U.S. attorneys here have brought against medical

marijuana users in the last five

to 10 years.

 

Randy Barnett, a Boston University constitutional law professor, said

the case was

precedent-setting. " It's the first time there's been a ruling that the

application of the Controlled

Substances Act to the application of cultivation of medical cannabis is

unconstitutional, " he said.

 

This wasn't the first pro-medical marijuana ruling recently from the 9th

Circuit. A court panel ruled

unanimously last October that the government cannot revoke doctors'

prescription licenses for

recommending marijuana to sick patients.

 

The case that led to yesterday's ruling concerned two seriously ill

California women who sued

Attorney General John Ashcroft.

 

They asked for a court order letting them smoke, grow or obtain

marijuana without fear of federal

prosecution.

 

The case underscores the conflict between federal law and California's

1996 medical marijuana law,

which allows people to grow, smoke or obtain marijuana for medical needs

with a doctor's

recommendation. A U.S. District judge tossed the case in March, saying

the Controlled Substances

Act barred him from blocking any potential enforcement action against

medical marijuana patients.

Yesterday's ruling sends the case back to the district judge.

 

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington

have laws similar to

California's, which has been the focus of federal drug interdiction

efforts.

 

 

 

This report includes information from The Associated Press. P-I reporter

Sam Skolnik can be

reached at 206-448-8176 or samskolnik

 

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