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IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA 

STATE OF NEBRASKA,

        Plaintiff,

    vs.

FRANCIS D. ZABLOUDIL,

        Defendant.

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Docket 692     Page 108

MEMORANDUM IN SUPPORT
 OF MOTION TO QUASH

Introduction

    Francis Zaboudil is a diagnosed epileptic who controls his seizures by self-administering marijuana as medicine in conjunction with doctor-prescribed medications. The medicinal benefits of marijuana experienced by Mr. Zabloudil are well documented in the medical literature. It is Mr. Zaboudil’s contention that he has a fundamental right under the United States Constitution to make rational choices regarding his medical care, and that the state may not limit his choices for effective medical treatment without demonstrating a compelling need and employing a means that is narrowly tailored to accomplish its objective.

   The State of Nebraska, in failing to offer any provision for the medical use of marijuana by individuals such as the Defendant, unduly infringes upon his basic rights to self-preservation and choice in medical decision-making. For these reasons, the applica-tion of Neb. Rev. Stat. 28-416(1) and 28-416(12) to the Defendant's personal medical use violates both the Constitutions of the United States and of the State of Nebraska and these charges should be quashed. Since the additional charges depend upon the underlying offense of unlawful possession and/or manufacture of marijuana, these charges must also be quashed.

 

Statement of the Facts

   On November 15, 1995, Francis Zabloudil was arrested at 2544 "O" Street in Lincoln, Lancaster County, Nebraska. He was subse-quently charged with violation of 28-416(1) (unlawful manufac-ture/distribution of a controlled substance) and 28-416(12) (possession of marijuana, more than one pound). During the search of the above location 49 marijuana plants of approximately 1' to 2' in height were seized. On February 5, 1996, the County Attorney amended the charges, adding violations of 28-416(4)(a)(ii) (unlawful manufacture/distribution of a controlled substance within 1,000 feet of a school) and 28-416(16) (possession of a firearm while in violation of 28-416(1)).

   The property located at 2544 "O" Street serves as Mr. Zabloudil's primary place of business, the Zabloudil Photography Corporation. Mr. Zabloudil is a professional photographer and is engaged in the art of portrait photography at this location.

   At the time of his arrest, Mr. Zaboudil stated he was growing marijuana for his personal use for the medical purpose of treating his epilepsy. In addition, Mr. Zabloudil will introduce evidence to this effect at the hearing in support of this Motion. No information has been provided by the County Attorney's office, the Lincoln Police Department, or any other source tending to disprove these statements or that Mr. Zaboudil has been involved in any criminal activity regarding marijuana other than possession for his own personal, medical use.

   Mr. Zaboudil has been treated by Dr. Richard Sposato since 1989 for generalized motor and complex partial seizures. He is currently taking 180 mg of Phenobarbital daily. Dr. Sposato believes "the United States over all would do best if marijuana was a prescription drug such as Morphine Sulfate, as it does have certain medicinal uses for which there is not a good substitute."

 

MEDICINAL USES OF MARIJUANA

   Mr. Zabloudil's claim to a medical use for marijuana is supported by centuries of documented use, volumes of recent scientific research, and legislative action in at least 36 states. The extensive documentation of the therapeutic use of marijuana demonstrates the irrationality of the State of Nebraska in failing to enact provisions allowing for its controlled use by individuals with a particularized medical need.

   Marijuana has been used as medicine for thousands of years. Doctors in the United States officially recognized its therapeutic value as early as the 1840s, including it in the United States Pharmacopoeia from 1850 through 1942. The United States government accepted and even encouraged the medicinal uses of marijuana. USDA Farmer's Bulletin No. 663 (in print from 1915 -1935) provided instructions on growing cannabis sativa for medical/pharmaceutical purposes.

   The medical use of marijuana was legal in the State of Nebraska until passage of the Uniform Controlled Substances Act in 1971. At all times prior to 1971, doctors in Nebraska could legally prescribe marijuana.

   Marijuana is one of the safest therapeutically active substances known; no one has ever died from an overdose. It has a wide variety of therapeutic applications: relief from nausea and increase of appetite; reduction of intraocular (within-the-eye) pressure; reduction of muscle spasms; and relief from mild to moderate chronic pain. In 1982, the National Academy of Sciences reported:

Marijuana relieves asthma attacks and loss of appetite. Furthermore, marijuana can be clinically used to combat nausea and vomiting, epilepsy, muscle spasticity, anxiety, depression, pain, glaucoma, and symptoms of withdrawal from alcohol and narcotics.

(emphasis supplied). Marijuana is frequently beneficial in the treatment of the following conditions: AIDS, glaucoma (by reducing intraocular pressure, alleviating the pain, and slowing -- sometimes even stopping -- the progress of the disease); cancer (by stimulating the appetite and alleviating nausea and vomiting, common side effects of chemotherapy treatment); Multiple Sclerosis (by limiting the muscle pain and spasticity caused by the disease, as well as relieving tremor and unsteadiness of gait); epilepsy (by preventing seizures in some patients and alleviating the adverse side effectis of antiepileptic medications); and by alleviating the chronic, often debilitating pain caused by myriad disorders and injuries. Each of these applications has been deemed legitimate by at least one court, legislature, and/or government agency in the United States.

   In 1995 the American Public Health Association, an organization with more than 50,000 members nationwide, adopted the following resolution, reprinted here in its entirety:

"Access to Therapeutic Marijuana/Cannabis:

The American Public Health Association

(November 1995)

   Being aware that cannabis/marijuana has been used medicinally for centuries and that cannabis products were widely prescribed by physicians in the United States until 1937 [1,2]; and

   Being aware that "marijuana" prohibition began with the Marihuana Tax Act of 1937 under false claims despite disagreeing testimony from the AMA's representative [3,4]; and

   Being further aware that the Controlled Substances Act of 1970 completely prohibited all medicinal use of marijuana by placing it in the most restrictive category of Schedule I, whereby drugs must meet three criteria for placement in this category: 1) have no therapeutic value, 2) are not safe for medical use, and 3) have a high abuse potential [5]; and

   Being cognizant that the Drug Enforcement Administration's own administrative law judge ruled in 1988 that marijuana must be removed from Schedule I and made available for physicians to prescribe [6-8]; and

   Knowing that 36 states have passed legislation recognizing marijuana's therapeutic value [9,10]; and

   Also knowing that the only available access to legal marijuana which was through the Food and Drug Administration's Investigational New Drug Program has been closed by the Secretary of Health and Human Services since 1992 [11]; and

   Understanding that while synthetic Tetrahydrocannabinol (THC) is available in pill form, it is only one of approximately 60 cannabinoids which may have medicinal value individually or in some combination; and

   Understanding that marijuana has an extremely wide acute margin of safety for use under medical supervision and cannot cause lethal reactions [6,32,34]; and

   Understanding that marijuana has been reported to be effective in: a) reducing intraocular pressure in glaucoma [12,13]; b) reducing nausea and vomiting associated with chemotherapy [14-16]; c) stimulating the appetite for patients living with AIDS (acquired immunodeficiency syndrome) and suffering from the wasting syndrome [17-19]; d) controlling spasticity associated with spinal cord injury and multiple sclerosis [20-25]; e) decreasing the suffering from chronic pain [26-28]; and f) controlling seizures associated with seizure disorders [29-31]; and

   Understanding that marijuana seems to work differently from many conventional medications for the above problems, making it a possible option for persons resistant to the conventional medications [32,33]; and

   Being concerned that desperate patients and their families are choosing to break the law to obtain this medicine when conventional medicines or treatments have not been effective for them or are too toxic [34,35]; and

   Realizing that this places ill persons at risk for criminal charges and at risk for obtaining contaminated medicine because of the lack of quality control; and

   Realizing that thousands of patients not helped by conventional medications and treatments may find relief from their suffering with the use of marijuana if their primary care providers were able to prescribe this medicine; and

   Concluding that cannabis/marijuana was wrongfully placed in Schedule I of the Controlled Substances Act depriving patients of its therapeutic potential; and

   Recognizing that APHA adopted a resolution (7014) on Marijuana and the Law which urged federal and state drug laws to exclude marijuana from classification as a narcotic drug [36]; and

   Concluding that greater harm is caused by the legal consequences of its prohibition than possible risks of medicinal use; therefore the APHA:

   1. Encourages research of the therapeutic properties of various cannabinoids and combinations of cannabinoids;

   2. Encourages research on alternative methods of administration to decrease the harmful effects related to smoking;

   3. Urges the Administration and Congress to move expedi-tiously to make cannabis available as a legal medicine where shown to be safe and effective and to immediately allow access to thera-peutic cannabis through the Investigational New Drug Program."

   A number of scientific studies over the last fifty years confirm historical observations of the therapeutic benefits of marijuana. Between 1840 and 1900, European and American medical journals published more than 100 articles on the therapeutic uses of Cannabis indica. Grinspoon and Bakalar, Marijuana as Medicine, JAMA Vol. 273, No. 23 1875 (1995). The treatment of convulsions was the first major application of cannabis in Western medicine, attested to by 19th-century authorities such as Dr. William O'Shaughnessy, the Ohio State Medical Committee, and Dr. John Russell Reynolds. Tod H. Mikuriya, ed. Marijuana: Medical Papers.

   Recent studies document therapeutic effects for persons suffering from epilepsy. In a Brazilian study, a majority of epileptic patients treated with cannabidiol (a component of marijuana) reported control of their seizures, with others reporting partial improvement. J.M. Cunha, et al, "Chronic Administration of Cannabidiol to Healthy Volunteers and Epileptic Patients," Pharmacology 21:1980, pp. 175-185. A subsequent study reported that subjects receiving 160 mg. cannabidiol reported having slept significantly more than those receiving a placebo and seven out of eight epileptics receiving cannabidiol had improvement. E.A. Carlini and J.M. Cunha, "Hypnotic and Antiepileptic Effects of Cannabidiol", Journal of Clinical Pharmacology 1981: 21: pp. 417S - 427S. One patient unable to control his seizures with normal anti-convulsants reported total control by using marijuana. Consroe, G.C. Wood & H. Buchsbaum, "Anticonvulsant Nature of Marijuana Smoking", JAMA 234 (1975) 306-7. A survey of 308 epileptic patients found that marijuana use appeared to delay the first onset of complex partial seizures. W.R. Ellison et al, "Complex Partial seizure Symptoms Affected By Marijuana Abuse" Journal of Clinical Psychiatry 51: 439 (1990). One study found cannabinoid benefitted two out of five severely epileptic children. J.P. Davis & H.H. Ramsey, "Antiepileptic Action of Marijuana-active Substances" Federation Proceedings 8 (1949) 284-5. Numerous other studies on convulsant activity in animals demonstrate that the active components of marijuana have a remarkable effect on seizure activity. Thus, both history and recent scientific studies document the therapeutic potential for the use of marijuana in controlling seizure activity. This has proven to be true for Francis Zabloudil.

   In 1972, a petition was submitted to the Bureau of Narcotics and Dangerous Drugs -- now the Drug Enforcement Administration (DEA) -- to reschedule marijuana as a prescribable medicine. After 16 years of court battles, the DEA's chief administrative law judge, Francis L. Young, ruled: "Marijuana, in its natural form, is one of the safest therapeutically active substances known".

   In 1975, Robert Randall, who suffers from glaucoma, was arrested for cultivating his own marijuana. He won his case by using the "medical necessity defense," and ultimately forced the government to find a way to provide him with his medicine. As a result, the Investigational New Drug (IND) compassionate access program was established, enabling qualified patients to receive marijuana from the government. In 1992, in response to a flood of new applications from AIDS patients, the Bush administration closed the program to all new applicants. It remains in operation today for only the eight surviving recipients approved prior to 1992.

   Unlike the citizens in the 36 states which have recognized the therapeutic benefits of marijuana, and unlike the eight people with special access to marijuana grown by the federal government, citizens of Nebraska currently suffering from any of the conditions mentioned above, for whom the legal medical options have proven unsafe or ineffective, have two options: continue to suffer from the ailment itself; or illegally obtain marijuana -- and risk imprisonment. This untenable position results in a violation of the constitutionally protected right to individual medical decision-making.

 

ARGUMENT

A. THE UNITED STATES CONSTITUTION GUARANTEES AN INDIVIDUAL THE RIGHT TO MAKE RATIONAL CHOICES CONCERNING MEDICAL CARE AND TREATMENT

   The Fourteenth Amendment provides that the states may not "deprive any person of life, liberty, or property, without due process of law." In Planned Parenthood v. Casey, 122 S.Ct. 2791 (1992) (aff'g Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court reaffirmed a woman’s right to choose to have an abortion before viability and to obtain it without undue interference from the State, finding the State did not have a sufficiently strong interest to justify the imposition of a substantial obstacle to the right of a woman to choose. The Court based its determination on an analysis of the "liberty" protections of the Due Process Clause of the Fourteenth Amendment, finding that the Constitution promised "a realm of liberty which the government may not enter." Id at 2806. The Court noted that "[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity." Id.

   The protection of basic personal decisions from state intrusion limits the State's power to interfere with the doctor-patient relationship and the joint selection and implementation of appropriate treatment. In Casey, the Court found that "[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Id. at 2807. Casey recognizes that the State's ability to insist that an individual endure suffering is quite limited. Id. Casey, as Roe before it, presents an important analysis of the extent of the protection of liberty provided by the Constitution.

   A similar analysis is found in Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990), in which the Supreme Court acknowledged that competent persons have the constitutional right to direct the removal of life-sustaining medical treatment and thus hasten death. Cruzan addressed the issue of the level of evidence Missouri could require as to the wishes of a competent person that life-sustaining treatment be withdrawn. The Court made it clear that a state's interest in this area is in ensuring a voluntary decision, not in interfering with the decision. Cruzan noted "the recognition of a general liberty interest in refusing medical treatment." Id. at 278.

   An aspect of the liberty interest is the right to personal privacy, or a guarantee of certain areas or zones of privacy. Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977). This privacy right includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 599-600 (1977).

   In Bowers v. Hardwick, 478 U.S. 186 (1986), while declining to hold that a state could not limit consensual sexual acts between adults, the Court did find that a liberty interest should be judicially recognized if it encompasses "fundamental liberties that are implicit in the conception of ordered liberty" or "liberties that are deeply rooted in this Nation's history and tradition." In a similar vein, the Court has stated that "this Nation's history and tradition" help to define the content of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

   Privacy in medical decision-making has a deeply rooted history. In the late nineteenth century, the Court wrote: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestioned authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250 (1891). In 1914, Judge Cardozo wrote: "[E]very person of adult years and sound mind has a right to determine what to do with his own body." Schloendorff v. Society of New York Hospitals, 113 U.S. 129 (1914).

   These decisions all flowed into the analysis of the right to privacy contained in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Court held that the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments created a "penumbra" that included an unenumerated right to privacy and extended that right to privacy to prohibit regulation of the sale of birth control products by the states. The majority's treatment implies that the Ninth Amendment can extend rights specifically mentioned elsewhere in the Constitution, but cannot by itself be the source of any constitutional rights. Justice Goldberg's concurring opinion discusses the Ninth Amendment at length and expresses the fundamental principle that "[t]he language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments." In support of that general principle, Justice Goldberg quoted statements by Madison and Justice Story, to invoke the construction principle that "real effect shall be given to all the words" in the Constitution. The majority made it clear that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Id. at 485 (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964)).

   The lessons from these decisions have recently been applied to medical decision-making in two decisions by the Circuit Courts of Appeals: Compassion in Dying v. State of Washington, No. 94-35534, 1196 WL 94848 ( 9th Cir. 1996) and Quill v.Vacco, 80 F. 3d 716 (2d Cir. 1996). In these decisions, the respective courts found that the states of Washington and New York could not completely prohibit physician-assisted suicide. Both decisions rely upon the important liberty interest involved in medical decision-making to strike down the absolute prohibitions imposed in each state's statutory scheme.

   One constitutional scholar reasons persuasively that the right to privacy should be found to apply where the challenged law would subject the person claiming the right to "totalitarian burdens" in his or her daily life. Jed Rubenfeld, The Right to Privacy, 102 Harv. L. Rev. 737, 788 (1989). Francis Zabloudil faces such a totalitarian burden in ordering his daily life. He can choose to attempt to control his epileptic seizures through traditional medications such as phenobarbital and risk the drowsiness and lack of focus that limit his ability to pursue his life-long occupation or risk the occurrence of seizures that render him unable to function and rob him of his dignity. Or he can choose medication that has proven to be effective for more than seven years but is prohibited by the State. It is just such a choice that should be recognized as infringing his liberty interest to good health and competent medical decision-making.

   Once a determination is made that a liberty interest is at stake, the analysis shifts to whether the statutory regulation places an "undue burden" on the personal right. See Casey, at 2830 (concluding that a statute regulating abortion was invalid on its face because "in a large fraction of the cases" in which the statute would operate it would "operate as a substantial obstacle to a woman's choice to undergo an abortion" and therefore placed an "undue burden"). There is no question that a total ban on the use of marijuana, including use for therapeutic purposes, is an undue burden on the constitutional right to medical decision making. Consequently, Neb. Rev. Stat. 28-416(4)(a)(ii) cannot be constitutionally applied to Mr. Zabloudil's personal use of marijuana to control his epileptic seizures.

 

B. THE NEBRASKA STATUTORY PROHIBITION OF THE USE AND MANUFACTURE OF MARIJUANA VIOLATES EQUAL PROTECTION BY FAILING TO PROVIDE FOR MEDICAL USE

   Under Nebraska law, few restrictions are placed on the right of a physician to prescribe medications for his patient. A physician can prescribe morphine, amphetamines and cocaine. However, because of its classification, the Defendant could not have obtained a prescription from his physician for marijuana, even though it could alleviate the pain, discomfort and injury to his occupation and livelihood caused by the seizures that he endured. In this way, Mr. Zabloudil was treated differently from all other individuals in need of therapeutic intervention as a result of disability or illness. Thus, Nebraska treats individuals who are similarly situated (in need of therapeutic intervention) differently (some may obtain the therapeutic intervention they need - those who require marijuana as a therapeutic intervention are not able to obtain relief). This differing treatment is based on no rational distinction between marijuana and other medications that may be obtained either with a prescription, over the counter or that exist in nature.

   According to the Fourteenth Amendment, the equal protection of the law cannot be denied by any State to any person within its jurisdiction. This constitutional right guarantees that the states treat in a similar manner all individuals similarly situated. See 3 Rounda & Nowak, Treatise on Constitutional Law, 18.2, at 7 (2d ed. 1992).

   Where government action burdens the fundamental rights of some more than others, the disparity is subject to strict scrutiny. See, e.g. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985); Loving v. Virginia, 388 U.S. 1 (1967); Tribe, American Constitutional Law 1451-54, 1464 (ed. 1988). In Skinner v. Oklahoma, 316 U.S. 535 (1942), for example, the Court recognized that personal autonomy in reproductive matters is a fundamental right and that a law requiring sterilization of all felons except white collar felons was subject to strict scrutiny. Skinner establishes that classifications that unequally distribute access to fundamental choices are presumptively invalid under the Equal Protection Clause. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court examined a state law that prohibited the sale of contraceptives to single persons, but granted access for married persons. The Court found that "[i]n each case, the evil, as perceived by the State, would be identical, and the underinclusion would be invidious." Id. at 454. Because a fundamental right is involved, the statute that limits this right can be justified only by a "compelling state interest," Shapiro v. Thompson, 394 U.S. 618, 634 (1969) and it must be narrowly drawn to serve only that interest. Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964).

   Even if it were determined that the Defendant's interest in the therapeutic use of marijuana was not a fundamental liberty interest, the distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause if based on reasons unrelated to the pursuit of that goal. Although "the judiciary will not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines..." New Orleans v. Duke, 427 U.S. 297 (1976), a classification will not be upheld if the "varying treatment of different groups of persons is so unrelated to the achievement of any combination of legitimate purposes that (a court) can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93 (1979). A law may be challenged for including within the prohibited class an item that does not rationally belong with the other members of the class. The constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the class, is so different from others of the class as to fall outside the reason for the prohibition.

   Our citizens have a liberty interest in avoiding unnecessary pain and suffering. However, for citizens for whom marijuana is an effective therapeutic intervention, this liberty interest is infringed and such individuals must face pain and suffering and loss of dignity and privacy. The state's interest in such cases pales by comparison. Although the state has a legitimate interest in preventing the abuse of psychoactive substances, that right diminishes as it is applied to a rational and competent mature adult with medical needs.

   The Nebraska Legislature is capable of enacting regulations that serve the state's interest in preventing drug abuse, while protecting the fundamental liberties of competent mature adults who require therapeutic treatment with marijuana. The Legislature has done so in the regulation of other psychoactive and narcotic substances. However, as the law now stands, the law prevents individuals such as Mr. Zabloudil, from making informed and competent medical decisions to treat their disabilities or illness with an effective agent. Because the legislature can draft laws that would protect the Defendant's right to privacy, the existing legislation is not narrowly tailored and cannot be applied to the Defendant in such a fashion as to deny the exercise of his fundamental right to self preservation and legitimate medical decision making.

   Several judicial decisions have found that the classification of marijuana as a Schedule I narcotic implicates equal protection. In People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971), the Supreme Court of Illinois held that the classification of marijuana under the Narcotic Drug Act was an unconstitutional violation of the equal protection clause. A similar determination was made in People v. Sinclair, 387 Mich. 91, 194 N.W. 2d 878 (1972). See also: English v. Miller, 341 F. Supp. 714 (E.D. Va. 1972) (classi-fying marijuana as a narcotic violates equal protection); State v. Erickson, Alaska Superior Court, 3rd Dist. (Dec. 12, 1976) (classi-fying cocaine with heroin is without a rational basis and therefore denies equal protection); State v. Rae, Connecticut Supreme Court, 20 Cr. L. Rptr. 2051 (1976) (concurring opinion of Justice Bogelanski: marijuana is less harmful than alcohol and tobacco and therefore prohibition of private possession violates equal protection).

   While the state may have some limited interest in the general prohibition of marijuana, there is no legitimate basis to prohibit its therapeutic use. The fact that many substances which have clear potential for abuse can be prescribed indicates that concerns about misuse can be protected in a less restrictive manner than the total prohibition that exists in Nebraska. Thus, no rational reason exists for treating marijuana differently than other substances with therapeutic value.

   For these reasons, the current charges as applied against the Defendant violate his right to equal protection of the law.

 

Conclusion

   Francis Zabloudil has had to suffer the pain and loss of dignity that comes from experiencing convulsions caused by his epilepsy. He has found that marijuana effectively controls these seizures and allows him to carry on his occupation as a commercial photographer. In spite of overwhelming evidence to the contrary, Nebraska has failed to create a process to allow for the therapeutic use of marijuana by individuals such as Mr. Zabloudil. The application of criminal statues regulating the use, possession and cultivation of marijuana to Mr. Zabloudil violate his rights to privacy in medical decision making and his right to equal protection of the law. For these reasons, the charges against him should be dismissed.

   Respectfully submitted,

   Francis Zabloudil, Defendant

 

                    By   __________________________________
  
                                      Ralph Anthony Smith #13905
  
                                      Manley, NE 68403
  
                                      (402) 234-4152

                                         Tim Sindelar
  
                                      19A Mountfort Road
  
                                      Newton, MA 02159
  
                                      (617) 723-8455

                                         Robert R. Gibson #11491
  
                                      P.O. Box 80826
  
                                      Lincoln, NE 68501-0826
  
                                      (402) 474-1440

                                         Patricia A. Knapp #17718
  
                                      211 N. 12th Street Suite 400
  
                                      Lincoln, NE 68508
                                         (402) 476-8877

 

APPENDIX 1

SUPPORTING REFERENCES CITED IN AMERICAN PUBLIC HEALTH RESOLUTION

1. Abel EA. Marijuana: The First Twelve Thousand Years; New York: McGraw-Hill Book Company, 1982.

2. Mikuriya TH, ed. Marijuana: Medical Papers 839-1972. Oakland, CA: Medi-Comp Press, 1973.

3. Bonnie RJ, Whitebread II CH. The Marijuana Conviction: A History of Marijuana Prohibition in the United States. Charlottesville, VA: University Press of Virginia, 1974.

4. National Commission on Marihuana and Drug Abuse (R.P. Shafer, Chairman). Marihuana: A Signal of Misunderstanding. New York: The New American Library, Inc., 1972.

5. Controlled Substances Act of 1970 (Pub.L. 91-513, October 27,1970, 21 USC 801 et seq.).

6. In the Matter of Marihuana Rescheduling Petition, Docket 86-22, Opinion, Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of Administrative Law Judge, September 6, 1988. Washington, DC: Drug Enforcement Agency, 1988.

7. Randall RC. Marijuana, Medicine and the Law. Washington, DC: Galen Press, 1988.

8. Randall RC. Marijuana Medicine and the Law, Vol. II. Washington, DC: Galen Press, 1989.

9. Alliance for Cannabis Therapeutics. No accepted medical value?? ACT News, Spring, 1995;4.

10. Grinspoon L, Bakalar JB. Marihuana as medicine: A plea for reconsideration. JAMA. 1995; 273(23):1875-1876.

11. Government extinguishes marijuana access, advocates smell politics. JAMA. May 20, 1992; 267(19):2673-2674.

12. Colasanti BK. Review: Ocular hypotensive effect of marihuana cannabinoids: Correlate of central action or separate phenomenon. J Ocular Pharmacol. 1986;2(3):295-304.

13. Hepler RS, Frank IM. Marihuana smoking and intraocular pressure. JAMA. 1971;217:1392.

14. Sallan SE, Zinberg NE, Frei III E. Antiemetic effect of delta-9-tetrahydrocannabinol in patients receiving cancer chemotherapy. New Engl J Med. 1975:293(16):795-797.

15. Sallan SE, Cronin C, Zelen M, Zinberg NE. Antiemetics in patients receiving chemotherapy for cancer. New Engl J Med. 1980;302:135-138.

16. Vinciguerra V, Moore T, Brennan E. Inhalation marijuana as an antiemetic for cancer chemotherapy. NY State J Med 1988;88:525-527.

17. Nelson K, Walsh D, Deeter P, et al. A phase II study of delta-9-tetrahydrocannabinol for appetite stimulation in cancer-associated anorexia. J Palliative Care. 1994;10(1):14-18.

18. Regelson W, Butler JR, Schultz J, et al. Delta-9-THC as an effective antidepressant and appetite stimulating agent in advanced cancer patents. In Int Conf Pharmacol Cannabis, S Szara, MC Braude, eds. Savannah: Raven, 1975.

19. Foltin RW, Fischman MW, Byrne MF. Effects of smoked marijuana on food intake and body weight of humans living in a residential laboratory.Appetite. 1988;11:1-14.

20. Clifford DB.Tetrahydrocannabinol for tremor in multiple sclerosis. Ann Neurol. 1983;13:669-671.

21. Malec J, Harvey RF, Cayner JJ. Cannabis effect on spasticity in spinal cord injury. Arch Phys Med Rehab. 1982;35:198.

22. Meinek H, Schonle PW, Conrad B. Effect of cannabinoids on spasticity and ataxia in multiple sclerosis. J Neuro. 1989;230:120-122.

23. Petro D. Marihuana as a therapeutic agent for muscle spasm or spasticity. Psychosomatics. 1980;21:81-85.

24. Petro D, Ellenberger C. Treatment of human spasticity with delta-9-tetrahydrocannabinol. J Clin Pharmacol. 1981;21:413S-416S.

25. Ungerleider JT, Andyrsiak T, Fairbanks L, et al. Delta-9-THC in the treatment of spasticity associated with multiple sclerosis.

26. Johnson MR, Melvin LS, Althius TH, et al. Selective and potent analgesics derived from cannabinoids. J Clin Pharmacol. 1981;21:271S-282S.

27. Maurer M, Henn V, Dittrich A, et al. Delta-9-tetrahydrocannabinol shows antispastic and analgesic effects in a single case double-blind trial. Eur Arch Psychiatry Clin Neurosci. 1990;240:1-4.

28. Noyes Jr. R, Brunk SF, Avery DH, et al. The analgesic properties of delta-9-tetrahydrocannabinol and codeine. Clin Pharmacol Ther. 1975;18(1):84-89.

29. Cunha JM, Carlini EA, Pereira AE, et al. Chronic administration of cannabidiol to healthy volunteers and epileptic patients. Pharmacology. 1980;21:175-185.

30. Feeney D. Marijuana use among epileptics. JAMA. 1976;235:1105.

31. Karler R, Turkanis SA. The cannabinoids as potential antiepileptics. J Clin Pharmacol. 1981;21:437S-448S.

32. Institute of Medicine. Marijuana and Health Washington, DC: National Academy Press, 1982.

33. Mechoulam R, ed. Cannabinoids as Therapeutic Agents. Boca Raton, FL: CRC Press, 1986.

34. Cannabis clubs open for medicinal business. USA Today. October 1, 1993:B1, B5.

35. Berger J. Mother's homemade marijuana: A plan to aid her son leads to arrest and push for change. The New York Times.

 

CERTIFICATE OF SERVICE

 

   The undersigned hereby certifies that a copy of the foregoing Memorandum in Support of Motion to Quash was served by regular United States mail, first class postage prepaid, on this 9th day of December, 1996, upon the following:

    Patrick F. Condom, Esq.
    Deputy County Attorney
    555 S. 10th Street
    Lincoln, NE 68508

 

   ___________________________________
   Ralph Anthony Smith

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