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press release from Dale Gieringer of California NORML, 12/17/02

US Judge Martin Jenkins (San Francisco) displayed a keen interest in the civil suit by Angel Raich, Diane Monson, et al. for an injunction to protect their right to use medical marijuana, declaring that the case raised "significant issues" concerning the government's constitutional authority to prohibit medical use of marijuana.

Defense attorneys were impressed by Jenkins' evident grasp of their arguments, his willingness to grapple with the fundamental issues, and his thorough familiarity with all of the legal precedents in the case. "This was the most thorough hearing of medical marijuana given by any court," said defense attorney David Michael, a veteran of numerous medical marijuana cases.

Jenkins began with a twenty minute exposition of what he saw as the key legal issues in the case, to wit:

• Whether the court was bound by previous Ninth Circuit precedents to regard all marijuana cultivation and possession as interstate commerce, as ruled by Judge Fogel in his WAMM decision, or whether, as defense attorneys argued, these precedents did not cover medical marijuana use, in which case the court would be free to rule on the matter as a case of first impression.
• The applicability of the Supreme Court's Lopez and Morrison decisions restricting the government's authority under the interstate commerce clause. Defense attorney Prof. Randy Barnett argued that the Morrison decision, which postdated Lopez, had raised the bar for establishing jurisdiction under interstate commerce, so that preceding appellate rulings were suspect.
• Whether the right to use medical marijuana for relief of pain and suffering was protected as a fundamental liberty interest by the Ninth amendment and substantive due process. Barnett, a leading Ninth Amendment scholar, argued that what was at issue was the right of control of one's own body, and that no right could be more fundamental. Attorney Robert Raich, arguing on behalf of his wife, Angel Raich, poignantly noted that medical cannabis was necessary for her very survival.
• Whether and how Judge Kozinski's concurring opinion in the Conant case, which suggested that the federal government was operating at the outer fringes of its power, might be relevant. Jenkins noted that Kozinski's opinion was not controlling precedent, and that it had applied to conduct (namely making a physician's recommendation) that was not clearly illegal under federal law.
• How to weigh the equity issues raised by the "mighty conflict" between state law and the Controlled Substances Act. Jenkins suggested that the key issue was federalism, even more than interstate commerce.

Jenkins spent over two hours discussing the issues, mostly with the three defense attorneys. US Attorney Mark Quinliven appeared alone on the government's side, perfunctorily repeating the government's familiar arguments. Jenkins brushed aside his contention that the right to medicine had been negated by the Supreme Court's Rutherford decision concerning Laetrile, noting that case had been decided in a "different constitutional setting."

Judge Jenkins left little grounds to doubt that he will deliver a thoughtful, well informed, possibly landmark decision on the medical marijuana question. We will be waiting with bated breath, probably for several weeks.

Visit California NORML at http://www.canorml.org online.

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