Ninth Circuit Hears Raich-Monson MMJ Appeal

canorml.org

San Francisco, Oct 7: The Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by Prop. 215 patients Angel Raich and Diane Monson challenging the constitutionality of the federal government's ban on personal use and cultivation of marijuana for medicine under California law.

The case involves the same basic issues that were raised in a similar appeal by the Oakland Cannabis Buyers' Cooperative and Wo/Men's Alliance for Medical Marijuana before a different Ninth Circuit Panel three weeks ago. The salient difference in that Raich and Monson were in no way engaged in distribution and are seeking only the right to use and grow medicine for relief of their own personal pain and suffering in accordance with state law.

Defense Attorney Randy Barnett stressed that the case involves "wholly interstate, non-economic activity" of a kind that Congress does not have power to reach, in the same way that recent Supreme Court decisions (Lopez and Morrison) have held that Congress cannot regulate guns in school zones or violence against women. Although the defense raised three other lines of argument - that California's law is protected by state's rights, that patients have a fundamental right to relief from pain and suffering, and that the DEA's actions constitute "interference of liberty" under the Supreme Court's Lawrence v. Texas ruling - the oral arguments focused exclusively on the interstate commerce issue. The case was heard by justices Pregerson and Paez - Democratic appointees with a liberal reputation - and by visiting justice Beam, a Reagan appointee from the Eighth Circuit. Justice Beam questioned why Raich & Monson's marijuana plants were different from the home-grown wheat that featured in the ruling precedent, Filburn vs Wickard, where the Supreme Court ruled that the government could regulate wholly intrastate economic activity if it were part of a larger class of activities constituting interstate commerce.

Prof. Barnett replied that Filburn was a commercial wheat farmer, and his activities were therefore economic in a way that his clients' were not. US Attorney Mark Quinlivan stressed that in a slew of precedents, the Ninth Circuit had consistently ruled that marijuana and other drugs are within the government's powers of regulation under the interstate commerce clause. In rebuttal, Barnett argued that all of the precedents either involved plainly economic activity or preceded the Supreme Court's Morrison decision. Barnett also took note of the Ninth Circuit's recent McCoy ruling, in which it held that personal possession of child pornography was beyond the scope of Congress' powers to regulate interstate commerce. "Your case is really a McCoy case, right?" asked Justice Paez - a pregnant question that delighted medical cannabis supporters. No decision is expected until after the OCBC/WAMM appeal is decided, hopefully sometime in the next 5 or 6 months.

The panel also heard two other medical marijuana appeals today. One involved an appeal by Dr. Mollie Fry, who was seeking an administrative hearing challenging the DEA's suspension of her license last December. Her attorney, Lawrence Lichter, claimed that Dr. Fry had instructed her previous attorney, David Nick, to file a notice for a hearing, but that the notice had not been received by DEA within the legal 30-day deadline. A search failed to reveal a copy of the letter in Nick's files, though Nick submitted a sworn statement that he had sent it. The US attorney argued that the DEA had legal discretion to suspend Fry without a hearing once the deadline had passed. The judges deliberated whether there was good cause to order a hearing in these circumstances.

The other case involved a homeless man named Hassel who had been charged with assaulting a federal officer who had ordered him not to smoke marijuana in the S.F. federal court building. His attorney, Mark Eibert, argued that a lower court had wrongly forbidden Hassel to present evidence that he was a legal medical marijuana patient so as to argue that he had acted in self-defense. The U.S. attorneys challenged the relevance of Hassel's medical marijuana use to the charge in question and raised other procedural objections. Judge Pregerson questioned whether the case had been properly handled by either party, opining that "everybody was asleep."

- D. Gieringer, Cal NORML