DR MIKURIYA'S APPEAL

- -A Last-Minute Twist

Led by doctors who learned nothing about cannabis in medical school
and never employed it in clinical practice, the Medical Board of
California decided in April 2004 to discipline the state's leading
authority on the subject.

Tod Mikuriya, MD, was put on probation for five years, subjected to
supervision by a "practice monitor," and fined $75,000 for the cost
of his own prosecution. Instead of accepting the punishment,
Mikuriya, 74, a Berkeley-based psychiatrist, has gone to great
expense to appeal in Superior Court. "It's the principle of the
thing," he says without irony.

The lawyer now handling Mikuriya's appeal, Scott Candell, expected to
get a ruling Feb. 10 from Sacramento Superior Court Judge Judy Holzer
Hersher. On the eve of the ruling Candell said he was hopeful, not
just because the Board's punishment of Mikuriya seemed outrageous as
he reviewed the record, but because he had drawn a judge with a
pro-patient perspective. Literally -it was Holzer Hersher who upheld
the one-nurse-to-five-patient staffing ratio last year when Gov.
Schwarzenegger, on behalf of California hospital owners, was pushing
for one-to-six.

It would be hard to overstate the importance of Mikuriya's
contributions to the modern medical marijuana movement.

The millions of Americans who smoked marijuana in social settings in
the '60s and '70s and '80s knew virtually nothing about its history
as medicine. In 1971 -as doctors who had actually prescribed
cannabis-based tinctures were retiring and Prohibition was
extinguishing knowledge on the subject- Mikuriya compiled and
published an anthology of articles from the pre-prohibition medical
literature. He kept the flame of scholarship flickering through the
dark ages; and when interest was rekindled in the wake of the AIDS
epidemic (marijuana enabled patients to eat and fend off nausea), it
was to Mikuriya that Dennis Peron and other activists turned for
education and advice.

In the early 1990s Mikuriya interviewed hundreds of patients from
Peron's San Francisco buyers club and began expanding the list of
conditions reportedly treatable with cannabis.

He encouraged Peron to add the all-important phrase "... any other
condition for which marijuana provides relief" to the first sentence
of Proposition 215. After it passed in November '96, Mikuriya was
one of very few doctors in the state known to approve cannabis use by
patients with conditions other than AIDS or cancer.

He successfully urged the California Medical Association, which had
opposed Prop 215, to recognize the mounting evidence as to safety and
efficacy and to publish practice guidelines for doctors issuing
approvals to patients.

To the law-enforcement establishment that had fiercely opposed Prop
215, Mikuriya was seen as public enemy number two. (They hate Peron
even more.) In December, 1996 -after urgent strategy sessions in
Washington with California Attorney General Dan Lungren- Drug Czar
Barry McCaffrey and other federal officials attacked Mikuriya by name
at a press conference and threatened to revoke the
prescription-writing privileges of any California doctor who approved
cannabis use by patients.

This threat was ruled illegal by a federal judge in the Spring of '97
following a suit by UCSF AIDS specialist Marcus Conant, MD. The
Conant ruling was a great victory for the movement, encouraging more
doctors to approve cannabis use. To the prohibitionists its
implications were tactical: with the feds enjoined, it would be up to
Lungren and the state medical board to punish Mikuriya and any other
pro-cannabis doctors who appeared on the horizon. (It is widely
assumed that whereas the feds oppose the medical use of marijuana,
California officials have supported it. Not true. There has been a
division of prosecutorial labor, with the feds leaving it to the
state to keep the docs intimidated.)

The investigation of Mikuriya went on for years.

The AG's office elicited complaints against him from police, sheriffs
and district attorneys in at least 11 counties, and sent an operative
feigning symptoms to see him as a patient. "The investigation was
fraudulent," says Mikuriya. "It was a round-up of accusations from
law enforcement without any attempt to check their validity.

No patients were ever questioned, no family members or caregivers
were ever questioned, no attempt was made to determine if harm had
ever occurred to a patient as a result of the treatment I authorized.
It was an investigation in name only."

At a hearing in September, 2003, the AG relied on an expert witness
who had never issued a medical-marijuana approval.

An administrative law judge duly determined that Mikuriya had
"approved the use of a controlled substance without conducting a
prior good faith examination, and failed to maintain adequate and
accurate medical records in the care and treatment of 16 patients."
None of the 16 patients had complained about Mikuriya; in fact, all
expressed gratitude for his treatment.

All the complaints had come from law enforcement and none alleged
harm to a patient.

Nevertheless, the medical board put Mikuriya on probation and levied
the $75,000 fine.

Arguments in Candell's appeal brief on behalf of Mikuriya include:

* Dr. Mikuriya's speech is protected by the First Amendment, i.e. his
prosecution by the state Attorney General represents an end-run
around the Conant injunction.

* The qualified immunity granted doctors by Prop 215 prohibits the
imposition of discipline against Dr. Mikuriya under the facts of the case.

* Dr. Mikuriya followed the acceptable standard of care for a medical
marijuana consultant.

* Dr. Mikuriya did not prescribe, dispense, or furnish marijuana.

* Marijuana is not a dangerous drug as defined by the Business and
Professions code.

Candell recounted these arguments in a media advisory the day before
the ruling was due from Holzer Hersher. So imagine his surprise (and
Dr. Mikuriya's) when he arrived in court on the morning of Friday,
Feb. 10, and learned that the case had been transferred from the
humane Judge Judy to a Republican hack named Jack Sapunor. A
presiding judge newly installed in January, Roland Candee, had made
the switcheroo and nobody had informed Candell. One knew the minute
one walked into Sapunor's courtroom that Mikuriya didn't have a
chance. The class system in this country is now so imposing that
people are generally identifiable -they signal their relationship to
the system itself-by looks, attire, bearing, etc. Both standing
within and attitude towards the system can be inferred from
appearance. Judge Sapunor looked like a mean white man devoted to the
status quo: every hair in place, tie too tight, black robe too tight,
smiling prissily and showing elaborate verbal courtesy to the party
he was in the process of fucking... And so, indeed, he listened
politely as Mikuriya's earnest young attorney framed the issues, then
ruled for the prosecution on all but one minor point (which won't
affect Mikuriya's punishment and serves to create a false impression
of equity). It could have been Mark Tansil in Sonoma railroading Alan
Martinez, or Eric DuTemple in Sonora sitting in judgment on Robert
Hemstalk. The state is filled with these heartless political clones
appointed by governors who opposed Prop 215. Most owe their
appointments to Gov. Pete Wilson, who vetoed medical marijuana
measures that had passed the state legislature in 1994 and '95. Now,
in a sense, his operatives are vetoing Prop 215.

Mikuriya must decide whether to take his case to the court of appeal.
His statement to C Notes: "I continue to hope that my case will
expose the conspiracy between California and federal officials to
block the implementation of Prop 215. No sooner had the state law
been passed by the voters than Attorney General Lungren and
associates went to Washington to discuss with leaders of the Drug
Czar's office, the DEA, and the Department of Justice scenarios for
sabotaging it. On December 30, 1996, I was attacked by name at a
press conference by Gen. Barry McCaffrey and Janet Reno, and
California doctors were threatened with reprisals if they approved
cannabis use by patients.

In response, California doctors and patients filed a suit -Conant et
al vs. McCaffrey- and got an injunction preventing the feds from
carrying out their unconstitutional threats.

This left it up to the state to keep California doctors intimated,
and the medical board and the attorney general's office have done so
effectively by disciplining me and by investigating more than 12
other California doctors for issuing cannabis approvals."

Mikuriya's appeal briefs and other documents related to the case can
be read at http://althealthsys.net/medicolegal.html. Contributions to
his cause can be made out to CCRMG (which stands for California
Cannabis Research Medical Group) and sent to p.o. box 9143, Berkeley,
CA 94709. The CCRMG is a 501(c)3 non-profit.

Afterthought: The suit establishing the right of doctors and patients
to discuss marijuana as a treatment option could have been filed as
Mikuriya v. McCaffrey -it was Dr. Mikuriya, after all, that the Drug
Czar had attacked-but the key organizer, Dan Abrahamson of the Drug
Policy Alliance, decided that Marcus Conant would make a better lead
plaintiff. Conant's name invoked the AIDS epidemic and he had good
standing within the medical establishment... On the other hand,
Mikuriya needed the protection in real time: a stream of Californians
whose regular doctors were unwilling to approve their cannabis use
- -or who were unwilling to even ask their doctors-were consulting him
every day. Perhaps if the protective federal injunction had been
granted in a landmark case called Mikuriya v. McCaffrey, the state
medical board would have been reluctant to prosecute the lead
plaintiff lest the prosecution be seen by the public as an end-run
around the injunction, and/or payback.

Here's another what-if: had Dennis Peron heeded Abrahamson's faction
instead of Tod Mikuriya, Prop 215 would have referred to a finite
list of grave medical conditions and a much smaller set of
Californians would have qualified for its protection... Speaking of
mean white men, Rep. Dennis Hastert has now lost all definition. The
head, the jowls, the shoulders, the gut, all have slid into a big
pile of glowering MWM.