Pubdate: Tue, 28 Nov 2000 Source: Alameda Times-Star (CA) Copyright: 2000 MediaNews Group, Inc. and ANG Newspapers Contact: 66 Jack London Sq. Oakland, CA 94607 Website: http://www.newschoice.com/newspapers/alameda/times/ Author: Josh Richman, Staff Writer OAKLAND 'POT' CLUB CASE TO TOP COURT The U.S. Supreme Court will decide whether the Oakland Cannabis Buyers Cooperative can use medical necessity as a defense against the federal ban on marijuana's use. This will be the first time the nation's highest court has addressed medical marijuana. The Oakland cooperative would have preferred it if the court had rejected the case -- as it stands now, lower courts have let the club distribute marijuana to seriously ill patients. The Justice Department sought this final appeal, but would not comment when it was granted Monday. "We hope that the Supreme Court will exercise its authority in a wise and judicious manner, and consider the needs of many seriously ill, suffering Americans -- patients whose doctors have found cannabis is the only therapy that will prolong or bring meaning to their lives," said cooperative attorney Robert Raich. This legal development deals with a temporary injunction the government won to keep the cooperative from dispensing marijuana while the full case is briefed and argued. Raich said the high court will hear arguments this spring and issue a decision by the end of June. "We hope that it will vindicate Californians that voted on allowing patients to have compassionate access to this medicine, and that it vindicates the citizens of the many other States that also passed compassionate access laws," cooperative director Jeff Jones said in a news release. Californians in 1996 approved Proposition 215, which was meant to let seriously ill patients with a doctor's assent get and use marijuana without fear of prosecution. Cancer and AIDS patients use the drug's appetite-boosting effect to combat nausea and weight loss; others use it to fight symptoms of glaucoma, arthritis, migraine, multiple sclerosis and other ills. Seven other states -- including Nevada and Colorado, which approved ballot initiatives just this month -- also have medical marijuana laws. U.S. District Judge Charles Breyer issued a temporary injunction closing the 2,500-member Oakland cooperative and five other Northern California clubs in 1998 after the government argued federal law bans all marijuana distribution and use, regardless of state law. Last September, the 9th U.S. Circuit Court of Appeal told Breyer to reconsider and let the cooperative make a medical necessity argument. Breyer in July ruled the government failed to dispute this argument, so he had little choice but to let the cooperative start dispensing marijuana again. The Justice Department then asked the Supreme Court to review the 9th Circuit decision. Congress gave the Attorney General and the Secretary of Health and Human Services power to dictate marijuana policy, the department argued in its petition: "It has not left that determination to individual courts or juries -- much less to private organizations like the Oakland Cannabis Buyers Cooperative." The Supreme Court in August ordered the cooperative to stop dispensing marijuana at least until it could decide whether to take the case. That stay remains in effect. Federal law -- in this case, the Controlled Substances Act -- always trumps state laws such as Proposition 215, said Jesse Choper, Earl Warren Professor of Public Law at the University of California, Berkeley's Boalt Hall School of Law. "But I do think there is a decent constitutional argument to be made," he said. "In the assisted-suicide cases several years ago, there are hints of varying strength from five justices that denial of relief of great pain to people who are dying might violate their constitutional rights." Supreme Court Justice Stephen Breyer has recused himself from this case because the trial judge is his brother. A separate appeal of Charles Breyer's July ruling will be argued before the 9th Circuit in January. - --- MAP posted-by: Jo-D