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Dr. Mikuriya’s Appeal: a Last Minute Twist

After an extensive investigation involving law enforcers from 11 counties, the Medical Board of California–led by doctors who learned nothing about cannabis in medical school and never employed it in clinical practice–decided in April 2004 to discipline the state’s foremost authority in the field of cannabis therapeutics.

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, the Berkeley-based psychiatrist has gone to great expense to appeal the decision. “It’s the principle of the thing,” says Dr. Mikuriya 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 support it. Not true. There has been a division of prosecutorial labor, with the state going after the docs and the feds going after the growers and providers. They all claim to be supportive of “individual patients” while trying to destroy the networks patients need.)

The investigation of Mikuriya went on for years. The AG’s office elicited complaints against him from police, sheriffs and district attorneys throughout the state, and sent an operative feigning symptoms to see him as a patient. 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 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.” The board put him on probation in April ‘04.

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 good 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 has become so fierce in this country that people are identifiable by looks, attire, bearing –and Sapunor looked like a mean white man. Every hair in place, tie too tight black robe too tight, smiling politely and showing elaborate verbal courtesy to the party he is about to fuck–who in this case was the well-meaning young attorney for Tod Mikuriya, MD. Judge Sapunor listened politely to Candell’s recitation of the issues, then ruled for the prosecution.

Mikuriya must now decide whether to take his case to the court of appeal. His statement to his many well-wishers: “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 led 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.”

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 Mikuriya that McCaffrey had attacked specifically–but the key organizer of the suit, attorney Dan Abrahamson of the Drug Policy Alliance, decided that Marcus Conant would make a more suitable lead plaintiff. Abrahamson was making a political cost-benefit analysis. Whether the plaintiffs would have prevailed in Mikuriya’s name will remain forever moot.

FRED GARDNER is the editor of O’Shaughnessy’s Journal of the California Cannabis Research Medical Group. He can be reached at: fred@plebesite.com

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Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com

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