SUIT SEEKS EQUAL ACCESS TO MEDICINAL POT

Couple Join Nationwide Class-action Legal Action

SEABECK -- Dick and Linda Elsea say his snoring and apnea have returned,
along with a disfiguring facial tic. But even worse is the return of her
fibromyalgia, a muscle pain that racks her left side day and night.

It's all back, the Elseas say, because in March they were arrested for
growing marijuana and now can't smoke it. When they did, it made them feel
better, they insist.

The Elseas thought the November passage of Initiative 692 gave them license
to grow and smoke marijuana for their health problems. Their mistake. They
neglected to find a doctor to recommend the illegal drug, as required by
the new law, and now they're facing the consequences.

[Picture and caption - A visit from police was the last thing Dick and
Linda Elsea were expecting when they were arrested last March. The couple
used marijuana for physical afflictions. Grant M. Haller/P-I]

Kitsap County Superior Court Judge Jay Roof imposed fines of $1,387 apiece
and 240 hours of community service each. Both are on probation for a year.

Although jail sentences were not imposed, the penalties present a serious
economic challenge for the Elseas, neither of whom is currently employed.
Their only source of income was Dick Elsea's workers compensation check,
but that expired this week.

But even as the Elseas begin paying their debt to society, the couple have
found some solace in far-off Philadelphia.

Through the Internet, they joined a class-action lawsuit that seeks to end
the federal government's ban on medicinal marijuana.

Pot in Washington state is illegal to possess, grow or use unless
recommended by a doctor. Nationally, it is one of 86 drugs deemed by the
federal government to have "no currently accepted medical use."

Despite that, eight people across the United States are being supplied with
marijuana under a special program sponsored by the federal government.

That program may be the government's undoing, at least according to the
Elseas' attorney.

Philadelphia lawyer Lawrence Elliott Hirsch is the mastermind behind the
class-action suit he filed in U.S. District Court. The suit seeks to extend
the principle of equal protection to people who might benefit from the use
of medicinal marijuana.

In March, Hirsch argued that his clients should get the same access to pot
as do the eight people who already receive it from the federal government.

District Court Judge Marvin Katz agreed that Hirsch should have the chance
to prove his case.

Hirsch's equal-protection theory stems from a 1978 government settlement
reached with a litigant named Robert Randall, who has glaucoma, a painful
eye disease that can lead to blindness.

In the mid-1970s, Randall was arrested for possessing marijuana. He was
tried and acquitted. He then filed a civil claim, asking that he be allowed
to smoke pot as part of a special "compassionate use" program run by the
government.

He won.

Eventually, Randall and 12 others were granted access to the program -- and
to rolled marijuana cigarettes produced under government supervision at the
University of Mississippi at Oxford. The program now serves just eight
people and has been closed to newcomers since 1993.

"The government years ago validated the use of marijuana as an effective
medical treatment and even grows it," Hirsch said in a recent telephone
interview. "What about equal access? Shouldn't everyone else who needs it
get it, too?"

The Elseas and the other plaintiffs in the class-action suit suffer from a
list of maladies that range from AIDS to PMS. Pain and nausea are a common
thread. They say pot helps them cope.

"The marijuana helped us feel better," said Dick Elsea, a 60-year-old
carpenter.

"My snoring stopped and I could sleep with my wife again for the first time
in 17 years. But the best of it was that Linda's pain went away, and she
could actually sit still again."

Not any more. Near the end of a long morning interview at the Elseas' home,
Linda began to show discomfort, rocking and rubbing the sore muscles of her
left arm.

"Imagine yourself with a line drawn down the middle," said the 50-year-old.
"One side feels like you. The other feels like it belongs to someone else.
I get headaches, a stiff neck, some facial numbness, shoulder, arm and hand
pain and pain down my whole lower left side. Sometimes it's like I'm on fire."

Analgesics and anti-depressants have been prescribed. But pot works better,
Linda Elsea said.

The Elseas say, however, that his doctors at the American Lake Veterans
Affairs hospital and her physician won't even discuss recommending medical
marijuana.

And that angers Robert Killian, the Seattle doctor who helped to draft I-692.

Killian said he is "disappointed" at the reaction of doctors around the state.

"I hear stories every day like this one, where physicians have known their
patients may be using marijuana or want to try it, but refuse to authorize
it or sometimes even discuss it, out of an unfounded fear," he said.

"It may still be against federal law, but we have a First Amendment right
to discuss and to document. Our law was written to protect patients from
going to jail."

Now in the discovery stage, the Philadelphia lawsuit represents 428 people
around the country, including the Elseas and 27 others in Washington state.

The suit survived a critical test earlier this year when a government
motion to dismiss the claim was rejected by Judge Katz.

Katz' ruling coincides with a suspicion here and around the country that
pot's medicinal effect isn't imaginary. Consider:

- -- Last November, passage of I-692 created the Medical Marijuana Act, which
exempts from criminal penalties use of pot for certain medical conditions,
but only with a doctor's approval. This is the law the Elseas thought
covered them.

- -- On Sept. 24, for the first time, Washington's Medical Quality Assurance
Commission will hold a hearing at the Airport Hilton in SeaTac to explore
whether Crohn's disease should be added to the list of ailments whose
symptoms may be treated by marijuana. The only conditions now on the list
are cancer, HIV or AIDS, multiple sclerosis, epilepsy or other seizure or
spastic disorders; intractable pain, and glaucoma.

- -- In May, the Clinton administration made it easier for state and local
governments to pay for research into the medical uses of marijuana.

- -- And in August, a Microsoft millionaire from Seattle donated $100,000 to
get Initiative 229 on the November 2000 ballot. I-229 would permit
marijuana sales in state liquor stores and would license farmers to grow it.

For Dick and Linda Elsea, a puff of the stuff they grew in their garage
worked just fine. They never imagined what might happen if caught. Acting
on a tip, a police SWAT team descended on the couple's small rented home.

"Dick had taken an elderly uncle to the doctor, and I was alone," Linda
Elsea recalled. "I came out of the bathroom and saw a half a dozen police
cars and all these cops in bullet-proof vests coming down the driveway. I
didn't count them, but there sure were more than I wanted to see."

In the minutes that followed, Linda found herself manacled and on her way
in a squad car to the Kitsap County Jail in Port Orchard, where even her
body cavities were searched.

"It was the worst thing I've ever been through in my life," she said.

"We were growing, yes," Linda Elsea said. "But we weren't selling, or
anything. There were no scales in the house. No money. So the cops were
very, very disappointed when they came in and didn't find what they were
looking for."