Frank Cikutovich Article:
Ruling Puts Limit on Growing Medical Pot
Spokesman Review Mar 18, 2002
by John Craig Staff
Doctors must say how much marijuana their patients need if patients and
caregivers are to be protected under Washington's medical marijuana initiative,
says the state Court of Appeals in Spokane.
The ruling in a Stevens County man's case is the first appellate court test
of the 3-year-old law, which voters adopted in November 1998 as Initiative
The decision leaves Kettle Falls-area resident Ocean Israel Shepherd at least
one toke over the line. Shepherd, 53, failed to prove he was growing only the
permissible 60-day supply of marijuana for medicinal use by another man, the
Court of Appeals said.
Shepherd already has served his jail time and completed a required in-patient
drug treatment program. He was hoping the appeal would ease restrictions on the
cultivation and use of marijuana, which he regards as a beneficial herb.
Lawyers on both sides say the appellate court decision essentially adopts the
analysis of Stevens County Superior Court Judge Rebecca Baker.
Baker ruled in March 2000 that Shepherd had a legitimate caregiver
relationship with a Colville man who had a valid medical reason to use marijuana
under Initiative 692.
She said Shepherd would be entitled to provide marijuana to the man if he
could prove he wasn't growing more than a 60-day supply. But he failed to
convince her he wasn't growing pot for himself as well as his friend, who
suffers from bipolar disorder and a debilitating spinal problem.
Shepherd has no telephone in his rural cabin, and couldn't be reached for
comment. His Spokane attorney, Frank Cikutovich, said he will ask the Washington
Supreme Court to review last week's appellate court decision. Cikutovich said
the American Civil Liberties Union and several Seattle-area groups promoting the
medical use of marijuana have offered support.
"We're going to ask the state Supreme Court to step in and, hopefully, be a
little more liberal on what a 60-day supply is," Cikutovich said.
Al Nielson, Stevens County's chief criminal deputy prosecutor, applauded the
Appeals Court decision, but said it didn't go far enough.
Nielson said the decision properly puts the onus on doctors to say how much
marijuana their patients need. But he was disappointed that the court didn't
address the problem of distinguishing medical marijuana from plain old
People who use the drug for non-medical purposes should not be caregivers, he
"That is an important consideration to law enforcement, and I think it is
important that that particular part of the initiative be made clear," Nielson
said. "It prevents people from using the initiative as a cover for criminal
Shepherd has openly admitted using marijuana, but Cikutovich said Shepherd
"has not stated that he smoked the marijuana that he grew for the patient."
Nielson viewed that distinction as an artifice. Cikutovich took a similar
view of the court's finding that Shepherd's case was doubly flawed because a
doctor's note used the wrong language.
"It just comes down to semantics," Cikutovich said. "I just see it as a
hypertechnical reading of the statute."
The Appeals Court declared it wasn't good enough for Dr. Gregg Sharp, a
Colville osteopath, to say in a note that "the potential benefits of the medical
use of marijuana may outweigh the risks for this patient."
The medical marijuana law requires a statement that the potential benefits
"would likely outweigh" the risks, the three-judge appellate court said. All
expert testimony must follow that standard, the judges noted.
Sharp has said it was an oversight that he used the wrong language,
"Hopefully, it's not just a question of language for these doctors," Nielson
said. "I hope they recognize that the court is concerned that there be an honest
analysis and statement."
But Nielson and Cikutovich believe the crux of the Appeals Court decision is
the requirement for doctors to say how much marijuana a patient needs.
"Who better than the doctor to provide that?" Nielson asked. "How can they
prescribe this unless they understand how it works and how much is needed?"
Nielson concedes that, even if a doctor says how much of the
tetrahydrocannabinol drug in marijuana a patient needs, that still leaves the
question of how many plants are needed to produce that amount.
Cikutovich points out that little research has been done to answer either of
those questions because of tight federal restrictions. He worries that doctors
may be reluctant to accept any greater role in helping patients obtain marijuana
for medicinal purposes because federal law prohibits them from prescribing the
"In effect, they're putting their medical license at risk trying to help
people," Cikutovich said. "The federal law is still a shadow over them."
One thing he and Nielson agree on is that, as Cikutovich put it, "the waters
are still muddy after the decision."
Copyright 2002 Cowles Publishing Company
Stiley and Cikutovich, PLLC.
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Spokane, Wa. ,
Office Phone: (509) 323-9000