Maptalk-Digest Tuesday, December 25 2001 Volume 01 : Number 337
CSAP Controversy - 4 of 4
From: Beth <>
Oregon Judge rules patients can't have medical marijuana without mature pla
From: "D. Paul Stanford" <>
doonesbury Medical MJ thread continues today
From: bar n grill <>
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Subj: CSAP Controversy - 4 of 4
From: Beth <>
Date: Mon, 24 Dec 2001 11:08:38 -0600
This is the third of 4 postings on this topic for your perusal. This isn't
a postable source for the news, but there is information that may be of
interest to some of us.
December 7, 2001 - The National Association of Scholars [Press Release] -
Stephen H. Balch, President, National Association of Scholars
Article URL: http://www.nas.org/print/pressreleases/hqnas/releas_07dec01.htm
NAS Deplores Treatment Of Dr. Sommers
The National Association of Scholars today deplored the treatment received
by Dr. Christina Hoff Sommers at a meeting sponsored by the Center for
Substance Abuse Prevention of the Department of Health and Human Services
on November 1st. The NAS calls upon U.S. Secretary of Health and Human
Services Tommy Thompson to investigate the conduct of the Center's staff.
Dr. Sommers had been invited to participate in a discussion entitled "Boy
Talk: A Dialogue about the Health and Well Being of Boys in America," which
dealt with new federal initiatives aimed at reducing substance abuse among
boys. A nationally recognized authority on education and gender and an
American Enterprise Institute resident scholar, Dr. Sommers was interrupted
and prevented NAS members and others were outspoken in their criticism of
the behavior of HHS Substance Abuse and Mental Health Services
Administration officials toward Dr. Sommers. The outcry led Charles G.
Curie, the SAMHSA administrator, to issue an apology to Dr. Sommers. Curie
refers to unspecified "corrective action" that is being taken in the case.
Click HERE for the text of Curie's letter. from completing her remarks by
Center officials when she attempted to explore the lessons to be learned
about "Boy Talk" from a related Department program for girls, "Girl Power."
Later in the meeting Dr. Sommers had obscenities hurled at her by a member
of the audience, while the Center's presiding officials did and said nothing.
"Any participant invited to appear at a government sponsored meeting
deserves to be treated with civility and personal respect," said Stephen H.
Balch, president of the National Association of Scholars. "Moreover, when a
national authority on the questions being discussed speaks to obviously
relevant issues, she should not be cut off. Intelligent policy-making
requires that diverse views be heard, not censored.
Finally, it's troubling that Dr. Sommers reports widespread hostility at
the meeting not only to her, but to the very idea of rigorous scientific
research and evaluation. This is certainly not the type of intellectual
environment in which the public wants policy to be made. It is bad enough
that many issues can no longer be reasonably discussed on a large number of
our campuses.
That this intolerant culture may now be invading our departments of
government should surely be a matter of great concern."
The National Association of Scholars is America's foremost higher education
reform group.
Located in Princeton, it has forty-six state affiliates and more than four
thousand professors, graduate students, college and university
administrators and trustees as members.
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Subj: Oregon Judge rules patients can't have medical marijuana without mature plant
From: "D. Paul Stanford" <>
Date: Mon, 24 Dec 2001 11:56:31 -0800
CRRH note: I went in to give expert testimony on an Oregon medical
patient's cultivation case last week and Judge Snouffer was assigned the
case. He informed us that he would not allow the defendant to raise a
"medical marijuana" necessity defense, as allowed by the Oregon Medical
Marijuana Act, and gave us the following letter and said he was ruling on
our case the same as he ruled in the following letter. Our defendant joined
the appeal of his ruling, which is beginning the lengthy appellate process.
Though there is a lot to complain about this ruling, I think the following
is the worst. I cannot imagine how Judge Snouffer came to the conclusion
that a medical patient cannot have marijuana if they do not have a live
mature plant, but that is his ruling. Here is Judge Snouffer's most
objectionable conclusion:
"Although that amount {the amount of cannabis the defendant possessed} is
less than one ounce (an ounce equals 28.349 grams), the statute only
permits the possession of "one ounce of useable marijuana Per each mature
plant." (emphasis added) Defendant possessed no mature plants. So his
possession of any amount of useable marijuana exceeded ORS 475.306. Thus
he is disqualified from presenting the defense."
Judge Snouffer also ruled that Dr. Leveque was not the "attending
physician" because Judge Snouffer claimed the Dr. Leveque did not do a
physical exam nor write a treatment plan. In the following letter, Snouffer
claims the defendant's "primary care physician" is his attending physician
and Snouffer would not accept Leveque's physician statement.
Here is the entire letter:
From Judge William Snouffer
Circuit Court Judge
Multnomah County Courthouse
Portland, OR 97204
October 11, 2001
Ms. Erin Olson
Deputy District Attorney
Multnomah County Courthouse
Portland, OR 97204
Mr. Andrew Kohlmetz
Attorney at Law
140 S. W. Yamhill, Suite 200
Portland, OR 97204
Re: State v Bryan Miles. 0103-31747
Dear Counsel:
This case was before me on September 17 and October 6, 2001, to consider
the state's Motion in Limine. The state seeks to bar defendant's evidence
of medical necessity under ORS 475.319, and also to bar evidence of the
"choice of evils" defense.
On October 5, 2001, I granted the state's motion with respect to the
medical necessity defense, finding that defendant's "attending physician"
had not advised defendant that "the medical use of marijuana may mitigate
the symptoms" of defendant's medical condition. ORS 475.319(1)(a). To
the contrary, defendant's attending physician had advised against such use
of marijuana.
The use of the "choice of evils" defense is a bit more complicated. Based
on a further study of the statutes and case law, however, I conclude that
the "choice of evils" defense is not available factually to defendant in
this case, so I will also grant the state's motion barring that defense in
this case.
The choice of evils defense is codified in ORS 161.200. It provides that
conduct that otherwise would be criminal is justifiable and not criminal
when the conduct "is necessary as an emergency measure to avoid an imminent
public or private injury."(There are other qualifications on the defense
that are not pertinent here.)
The choice of evils defense is not available in this case. Defendant
cannot establish that his possession and growing of marijuana was "an
emergency measure" that he took in order "to avoid an imminent public or
private injury." His evidence was that he engaged in that conduct in
order, purportedly, to treat a chronic and longstanding medical
condition. There was no evidence that his medical condition was about to
take an acute turn for the worse. Thus there was no "emergency" that
necessitated defendant's conduct in order "to avoid an imminent...private
injury."
Defendant argues nevertheless that the Oregon Medical Marijuana Act gives
him the right to present the choice of evils defense. ORS 475.319(3) provides:
"No person engaged in the medical use of marijuana who claims that
marijuana provides medically necessary benefits and who is charged with a
crime pertaining to such use or marijuana shall be precluded from
presenting a defense of choice of evils, as set forth in ORS 161.200..."
Defendant asserts that this statutory language grants him the authority to
present the defense despite what he says is a conflict with the language of
ORS 161.200. But there really is no conflict. ORS 475.319(3) allows the
choice of evils defense "as set forth in ORS 161.200." There may well be
sets of facts or circumstances or types of cases in which the defense could
be used "as set forth in ORS 161.200." However this defendant's particular
set of factual circumstances is not one of those sets of cases, as
discussed in the preceding paragraph.
There is another reason why this defendant does not qualify under ORS
475.319(3) to present the choice of evils defense. The statute allows the
defense only to a person "engaged in the medical use of
marijuana..." There are limits upon the "medical use" of marijuana. ORS
475.319(3) allows the defense "provided that the amount of marijuana at
issue is no greater than permitted under ORS 475.306..." That latter
statute limits the amount of marijuana present at the location involved to
"three mature marijuana plants, four immature marijuana plants and one
ounce of useable marijuana per each mature plant." Defendant cannot meet
those threshold limits. The amount he possessed exceeded those
limits. According to the testimony, and Exhibits 6 and 8, defendant
possessed three small, indeed tiny, plants and 15.4 grams of "vegetable
material" that tested positive for marijuana. Although that amount is less
than one ounce (an ounce equals 28.349 grams), the statute only permits the
possession of "one ounce of useable marijuana Per each mature
plant." (emphasis added) Defendant possessed no mature plants. So his
possession of any amount of useable marijuana exceeded ORS 475.306. Thus
he is disqualified from presenting the defense.
Because of these rulings it is not necessary to decide the state's
preemption argument. But an advisory comment or two might be useful. If an
appellate court were to disagree with my rulings and conclude that this
defendant is entitled statutorily to raise the choice of evils defense then
the trial court would be faced with the state's preemption argument. The
state asserts that federal law preempts and overrides the language of ORS
475.319(3) which purports to grant a choice of evils defense. For purposes
of this case, I disagree. Preemption occurs if there is a clear conflict
between federal and state law. See, State v. Rodriguez, 317 Or 27, 35-36
(1993). That does not exist here. 21 U.S.C. sec. 903 says that there is
"an intent on the part of Congress to occupy the field...(when) there is a
positive conflict between (a) provision of this title and (a) state law so
that the two cannot consistently stand together." There is no federal
statute that says that states may not allow a choice of evils defense. Thus
there is no "positive conflict" and no preemption.
Ms. Olson should prepare an appropriate order granting both prongs of the
state's motion.
Thank you both for presenting an interesting and well researched and
written set of issues.
Please coordinate your calendars and arrange for a mutually agreeable time
for further proceedings and a court trial on the merits at your earliest
convenience.
Very truly yours,
WILLIAM C. SNOUFFER
Circuit Court Judge
WCS/pm
CRRH is working to regulate and tax the sale of cannabis to adults like
alcohol, allow doctors to recommend cannabis through pharmacies and restore
the unregulated production of industrial hemp.
*Campaign for the Restoration and Regulation of Hemp*
mail: CRRH ; P.O. Box 86741 ; Portland, OR 97286 USA
email:
phone: (503) 235-4606
web: http://www.crrh.org/
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Subj: doonesbury Medical MJ thread continues today
From: bar n grill <>
Date: Tue, 25 Dec 2001 12:21:48 -0800 (PST)
See: http://dailynews.yahoo.com/h/cx/uc/db
Note that if you open this email after Dec 25, you can still use the
link....just scroll down to the PREVIOUS DAYS calendar and you can
easily read the earlier segments.
Brief Summation to Date: Last week's thread had ZONKER preparing
holiday fruitcakes for family and friends, along with traditional
fruitcake humor(ie, how a bagful feels like a bagful of rocks,
etc)....he takes one to his cousin B.D. who is doing security detail at
Ground Zero for the National Guard(that was Saturday)
Monday's installment is where Zonk reveals the fact that he baked all
the fruitcakes with cannabis included, since a lot of the cakes were
for friends in SoCal who are cannabis club members.
If you keep the link above, you can follow the thread throughout this
week on the chance your local wrap does not carry DB.
cheers from Clearwater
Steve
Do You Yahoo!?
Send your FREE holiday greetings online!
http://greetings.yahoo.com
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End of Maptalk-Digest V01 #337
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