MEDICAL POT CASE BACK TO LITIGATION

Oakland Cancer Patient Who Lost Last Year to Try Again With New Argument

Less than a year after the U.S. Supreme Court ruled against her,
Oakland medical marijuana patient and advocate Angel Raich will go
back before a federal appeals court Monday with a different legal argument.

Her lawyers will try to persuade a three-judge panel of the 9th U.S.
Circuit Court of Appeals, sitting in Pasadena, that keeping her from
using marijuana as medicine unduly burdens her fundamental rights to
life and freedom from pain, as protected by the Fifth Amendment's Due
Process Clause and the Ninth Amendment.

The government argues there is no constitutionally protected
fundamental right to obtain and use marijuana in defiance of the
federal ban on the drug.

"Nor can plaintiffs establish that the use of any particular drug,
free of a regulatory scheme designed to protect the public health and
safety, is a fundamental right that is deeply rooted in our nation's
history, legal traditions and practices," wrote Assistant U.S.
Attorney Mark Quinlivan in his January brief to the appeals court.

Each side will have 30 minutes to argue its case. It will probably be
months before the court rules.

Raich, Diane Monson of Oroville, and two unnamed providers sued the
government in October 2002 to prevent any interference with their
medical marijuana use, but this case's seeds were sown in the Supreme
Court's May 2001 decision on the Oakland Cannabis Buyers Cooperative's case.

The court in that case ruled there is no collective medical necessity
exception to the federal ban, which defines marijuana as having no
valid medical use. But it did not rule on constitutional questions
underlying the medical marijuana debate, so Raich, Monson and their
lawyers tailor-made a case raising exactly those issues.

A federal judge in San Francisco rejected their arguments in March
2003, but a 9th Circuit appeal panel reversed that ruling nine months
later. That panel believed the plaintiffs could prevail at trial on
their claim that the Constitution's Commerce Clause lets Congress
regulate only interstate commerce, and that Californians' medical
marijuana use neither crosses state lines nor involves money changing hands.

The U.S. Supreme Court heard the case in November 2004 and in June
2005 ruled 6-3 to uphold the federal ban, finding that even marijuana
grown in back yards for personal medical use can affect or contribute
to the illegal interstate market for marijuana and therefore is
within Congress' constitutional reach.

But the 9th Circuit panel and the Supreme Court dealt only with the
Commerce Clause argument, not the other constitutional issues. With
the case remanded back to the 9th Circuit, Raich's attorneys now are
pursuing the remaining arguments; Monson dropped out of the case late
last year.

Besides the Fifth- and Ninth-Amendment arguments, Raich's lawyers
also claim the common-law doctrine of necessity -- the idea that it's
OK to break the law when forces beyond one's control compel it and
there is no reasonable, legal alternative -- bars the government from
applying the Controlled Substances Act to ban medically necessary
activities. The government argues the Supreme Court's decision in the
Oakland Cannabis Buyers Cooperative case already ruled out a
medical-necessity argument.

And Raich's lawyers claim the Tenth Amendment protects against
federal interference with state regulation of personal, noncommercial
medical activities within their own borders -- namely, medical
marijuana laws. But the government says the Supreme Court's rejection
of the Commerce Clause argument last year already covered that ground.

"I know we're going to win, I feel pretty good about the 9th
Circuit," Raich said Friday.

Raich says without the drug's appetite boost, her wasting syndrome
causes rapid, life-threatening weight loss. She also suffers from
ailments including an inoperable brain tumor and nonepileptic
seizures, and in November she had a hysterectomy following her
precervical-cancer diagnosis.

Meanwhile, she is planning a Capitol Hill lobbying blitz with
renowned talk-show host and fellow medical marijuana user Montel
Williams, to begin perhaps as early as May.

The House last June defeated an amendment that would have forbidden
the Justice Department from using public money to raid, arrest or
prosecute patients and providers in states with medical marijuana
laws. The amendment got 161 votes -- more votes than in 2003 and 2004
- -- but still fell 57 short of the 218 it needed for passage.

Raich's case documents are available on her Web site,
http://www.angeljustice.org