THE MEDICAL MARIJUANA HAZE

It's been six years since California voters OK'd an initiative intended to
make "medical marijuana" available to patients for the relief of pain and
nausea. Since then a number of states, including Colorado in 2000, have
enacted similar measures.

The central legal issue from the beginning has been whether a state can
carve out an exception to the federal Controlled Substances Act, the law
that prescribes criminal penalties for cultivating and distributing
marijuana. That question has spawned two major lawsuits and still remains
unanswered.

The first case was settled last year when the U.S. Supreme Court ruled that
a California club organized to sell marijuana to patients with doctors'
approval was operating in violation of federal law. Since then, however, the
California clubs have continued to operate while law enforcement looks the
other way.

The second case involves whether the federal government can investigate and
punish doctors who advise patients to use medical marijuana.

Last week the 9th Circuit Court of Appeals said the feds cannot interfere
with the free-speech rights of a physician who discusses marijuana use or
recommends it to patients. The U.S. Justice Department hasn't said whether
it will appeal the decision.

We think an appeal would be in order because of the inadequate way the 9th
Circuit panel drew the line separating mere discussion of marijuana from the
more serious matter of "aiding and abetting" cultivation or distribution.

No one disputes the fact that "aiding and abetting" the distribution and
sale of marijuana is a crime under current law. The question is when a
physician crosses the line and either distributes marijuana or helps someone
obtain it.

The 9th Circuit ruling is unsatisfactory because it virtually assumes that
every involvement by a physician is a protected free speech matter and
actually prohibits the federal government from investigating physicians'
conduct based solely on the fact that they have "recommended" marijuana use.

This newspaper opposed the Colorado initiative, then labeled Amendment 20,
but we have also noted that important jurisdictional issues surrounding the
measure have yet to be resolved.

The 9th Circuit decision doesn't resolve those questions, either, so we hope
the most recent ruling also will be reviewed by the nation's highest court.