HIGH TIMES OUT WEST, WITH JUDICIAL APPROVAL

The U.S. Ninth Circuit Court of Appeals is located in San Francisco and
hears federal appeals from a number of western states. This appeals court
is generally considered the most liberal in the country. Its recent
decision to overturn a district court's ruling in U.S v. Oakland Cannabis
Buying Club further cements that reputation.

Several years ago, the voters of California approved a statewide
proposition that allowed marijuana to be dispensed by a licensed physician
for medicinal purposes. The initiative was on the ballot because anecdotal
evidence suggested that cannabis stimulated the appetites of both cancer
patients undergoing chemotherapy and AIDS patients being treated by toxic
drugs such as AZT. Doctors also found that cannabis often reduced
nervousness and anxiety in many military veterans more effectively than
popular prescription drugs such as valium.

In the wake of the California vote, numerous cannabis buying clubs like
OCBC sprang up to purchase and dispense prescription marijuana.

The Clinton administration's Justice Department protested that the
distribution of cannabis for medicinal purposes was not based on rigorous
scientific study and would lead to abuse. They concluded that distributing
cannabis was in violation of the Controlled Substances Act of 1970 and
threatened to suspend the prescription-writing privileges of doctors who
prescribed the drug.

District Court Judge Charles Breyer -- brother of U.S. Supreme Court
Justice Stephen Breyer -- ordered that the OCBC be closed. He ruled that he
had no authority to grant the medical health emergency exception because
such an order would essentially overturn the Control Substances Act.

The OCBC appealed to the Ninth Circuit. The city of Oakland declared a
public health emergency and supported the OCBC's petition for relief. The
appeals panel agreed that the the OCBC's request was in the public interest
and overturned Judge Breyer's decision.

Here's why:

The judge had rejected OCBC's petition to permit cannabis distribution to
patients for whom a medical necessity existed. The question thus became:
what exactly constitutes a medical necessity? OCBC outlined several criteria:

* When a physician can certify that the patient suffers from a serious
medical condition.

* If the patient does not have access to cannabis, he or she will suffer
grave harm.

* Cannabis is necessary for the treatment of the patient's condition.

* There is no legal alternative to cannabis for the effective treatment of
the patient's medical condition.

Judge Bryer's ruling was bound to be overturned since the OCBC had modeled
their medical necessity guidelines based on criteria established by the
Ninth Circuit in a previous ruling. In that case, the court had crafted an
injunction that was broad enough to prohibit illegal conduct but narrow
enough to include conduct that would be legally privileged or justified in
the public interest. Thus, the court ruled that Judge Breyer had ignored
its established criteria in refusing to grant the medical necessity
exception requested by the OCBC.

The appeals court also found that the government did not identify any
interest in blocking cannabis distribution other than an interest in
enforcing its laws. Moreover, the court noted that the government offered
no evidence to refute OCBC's contention that doctor-prescribed cannabis
relieved the pain and suffering of a large group of people. The U.S.
Department of Justice has appealed the Ninth Circuit's ruling to the U.S.
Supreme Court.

I agree with the circuit court's decision. Its established criteria for
determining the medical necessity exception is comprehensive. If smoking
marijuana offsets the debilitating effects of chemotherapy and AZT by
enhancing the patient's appetite, then the public interest is truly served.
Good nutrition is crucial in warding off the effects of potentially lethal
diseases and attendant toxic treatments. I'm not naive enough to think that
there will not be abuses based on the ruling. But society's collective
mental image of popular cult classics like Cheech and Chong's "Up in Smoke"
should not bias us against the medicinal use of cannabis because it
stimulates the appetite.

The Ninth Circuit's ruling is, in effect, saying that the "munchies" are
especially a good thing for the terminally ill.

Yet, the decision does open the door for other groups -- especially
religious -- to request exceptions for marijuana use. For example, the
Rastafarians use the drug as a sacrament in their religious services. They
reason that if the courts have ruled that Native Americans can use peyote
as a religious sacrament, how can the government deny their use of cannabis
in a similar manner? A case bought by incarcerated Rastas, based on this
logic and requesting a religious exception, is now headed for the Ninth
Circuit. That court's ruling in U.S. v OCBC will only bolster the strength
of the Rastafarian's petition.

One thing is certain. Being recognized as the most liberal court of appeals
in the nation is a magnet for attracting the most unique, and vexing, cases
in the country. I'm sure, as well, that the U.S. Supreme Court is just as
vexed by the legal "hand grenades" regularly tossed in its lap by this
trend-setting collection of judges.