San Diego Union-Tribune

March 29, 2001

High court debates medical marijuana
Case to affect clubs throughout state 

By TOBY ECKERT
Copley News Service

WASHINGTON -- The Supreme Court yesterday began to weigh "medical necessity" against federal drug laws in a case that is likely to be a watershed in the debate over medical marijuana use in California.

Wading into the prescription pot issue for the first time, several of the justices were clearly skeptical of a lower court ruling that recognized a "medical necessity" defense for marijuana distribution and blocked the federal government's effort to shut down an Oakland cannabis buyers' club.

The San Francisco-based 9th U.S. Circuit Court of Appeals "appeared, at least, to create some kind of blanket exemption to the Controlled Substances Act," Justice Sandra Day O'Connor said during oral arguments in the case.

"That is a huge rewriting of the statute," said Justice Anthony M. Kennedy.

But Gerald F. Uelmen, an attorney for the Oakland Cannabis Buyers' Cooperative, argued that the exception is narrowly drawn. It requires people who obtain marijuana for medical reasons to prove that it is necessary to treat their conditions and that they have no reasonable alternatives, he said.

"All the court has done is create a very narrow exception for a very limited number of people," Uelmen said.

The federal government argues that such an exception cannot be made under the Controlled Substances Act, which groups marijuana among illegal drugs for which there is "no currently accepted medical use."

An exception for marijuana "undermines the authority of the act," Barbara D. Underwood, the Justice Department's acting solicitor general, told the justices.

Chief Justice William Rehnquist appeared to find the argument persuasive. The medical necessity defense "doesn't make much sense" given the language of the statute, he said.

The case is expected to have far-reaching implications for cannabis clubs that sprouted throughout California -- including one in San Diego's Hillcrest area -- in the wake of Proposition 215. The 1996
initiative allowed the cultivation and use of marijuana, with a doctor's consent, by people suffering from AIDS, cancer and a host of other ailments.

Voters in seven other states have approved medical marijuana initiatives and Hawaii has enacted a law allowing treatment with the drug.

A decision is expected by June.

A Supreme Court ruling in favor of the Oakland organization could reopen cannabis cooperatives throughout California and would be a major boost to the medical marijuana movement nationwide.
Proponents say the drug treats numerous ailments, including severe weight loss from AIDS and pain associated with cancer treatments.

A ruling against the cooperative would not necessarily invalidate Proposition 215. But medical marijuana advocates say it would drive pot-using patients underground and subject them to federal
prosecution.

California Attorney General Bill Lockyer filed a brief in support of the clubs, saying the Supreme Court should respect the views of California voters.

After the hearing, activists on both sides squared off in dueling press conferences and sometimes heated debates on the plaza in front of the Supreme Court.

"Marijuana is something I give thanks to the Creator for every day," said Elvy Musikka, a 61-year-old glaucoma sufferer from Sacramento, who clutched a prescription pill bottle stuffed with marijuana cigarettes. "The law cannot outlaw the basic instincts of self-preservation and compassion."

But Sue Rusche, executive director of National Families in Action, called marijuana an "unsafe and untested drug." The group says supporters of medical marijuana use are trying to pave the way for
legalization of pot and other drugs.

The Justice Department moved to shut down the Oakland cooperative and five other northern California cannabis clubs through a lawsuit in 1998. U.S. District Judge Charles Breyer issued a
preliminary injunction blocking the clubs from growing or distributing pot.

Breyer is the brother of Supreme Court Justice Stephen Breyer, who is not participating in the case.

But the Oakland club continued to operate, and the 9th Circuit Court of Appeals reversed Breyer's ruling by recognizing the "medical necessity" defense.

Breyer then issued a new order allowing the cooperative to provide marijuana to patients who suffer from serious medical conditions and face "imminent harm" without the drug.

At yesterday's hearing, some of the justices questioned why the federal government pursued a civil suit against the cannabis clubs instead of criminal prosecution. The suit allowed the government to avoid a jury trial.

"Isn't the real concern behind this that, with passage of the California proposition (by 56 percent of the voters) it will be very, very difficult for the government to get a criminal conviction in a jury trial?" asked
Justice David Souter.

Underwood said it was customary to seek civil injunctions against medical facilities suspected of violating federal laws.