Pubdate: Thu, 29 Mar 2001 Source: Washington Post (DC) Copyright: 2001 The Washington Post Company Contact: 1150 15th Street Northwest, Washington, DC 20071 Feedback: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm Website: http://www.washingtonpost.com/ Author: Charles Lane, Washington Post Staff Writer CASE PITS 'MEDICAL MARIJUANA' AGAINST U.S. DRUG WAR Lawyer For Calif. Group Urges Justices To Allow Sick People To Use Substance To Alleviate Symptoms An attorney for an Oakland, Calif., marijuana cooperative asked the Supreme Court yesterday to let sick people obtain marijuana to help alleviate their symptoms, in a case that pits the movement for state "medical marijuana" laws against the federal war on drugs. The court should recognize a "medical necessity" exception to the federal prohibition on the possession and distribution of marijuana, said Gerald F. Uelmen, who represents the Oakland Cannabis Buyers' Cooperative, one of several "cannabis clubs" that sprang up after California voters approved a referendum in 1996 permitting doctor-approved marijuana use. In political terms, a victory for the Oakland cooperative would be a boost to the medical marijuana movement, which has persuaded voters in eight states to approve referendums similar to California's. But a ruling in favor of the federal government could be a significant setback to the movement by creating doubt about the ability of states to deviate from federal drug law. Despite strong support for medical marijuana laws in certain states, national politicians have opposed the laws rather than deviate from the zero-tolerance drug policy the public generally demands. Commenting on the case yesterday, President Bush's spokesman, Ari Fleischer, said that Bush is personally opposed to medical marijuana, despite remarks he made during last year's campaign that suggested some sympathy for the states' right to adopt a different policy. Bush's view echoes that of the Clinton administration, which had argued in court that the California referendum promotes "disrespect" for drug laws. The Clinton Justice Department sued the Oakland cooperative, and a federal court ordered it closed in 1998. Acting Solicitor General Barbara Underwood, a holdover from the Clinton administration, urged the justices yesterday not to send a signal that would "undermine the authority of [Congress] to protect the public from hazardous drugs." She argued that there is "no currently accepted medical use" for marijuana and that permitting courts and juries to acquit marijuana defendants based on "medical necessity" would create a massive loophole in federal drug control laws. Her hearing seemed to be receptive. Despite its past support for state prerogatives, the Supreme Court has already leaned toward the federal government's assertion of authority against the California cannabis clubs. In August, after a lower federal appeals court had permitted the Oakland cooperative to reopen, a majority of the Supreme Court granted the Justice Department's request to keep the cooperative closed until the justices had a chance to decide the issue. Several justices expressed skepticism yesterday about what they called the "sweeping" nature of the Oakland group's proposed "medical necessity" rule. "I would have thought . . . that the [appeals court] erred at the point that it created this kind of blanket defense," Justice Sandra Day O'Connor said. "Every respondent who wishes to take advantage of it is going to have to show that they are suffering from a serious medical condition . . . and that they have no reasonable alternative," Uelmen responded. However, some justices also seemed concerned that, by seeking a court order to shut the cooperative rather than pressing criminal charges, the Justice Department had effectively used a federal judge to sidestep what might have been a politically unpopular prosecution in California. "Isn't the real concern behind this that with the passage of the California referendum and the popularity . . . that necessarily entails it will be very, very difficult for the government ever to get a criminal conviction in a jury trial?" Justice David H. Souter asked Underwood. The government's dispute with the cooperative "is ideally suited for resolution in a civil litigation," Underwood told the court. Seemingly conceding that their chances of victory at the Supreme Court are slim, medical marijuana backers have launched a major public relations campaign to convince potential supporters across the country that the court lacks the power to invalidate state medical marijuana laws. Even if cannabis clubs were put out of business, people in states that permit medical marijuana could still grow their own, they say, and it would be up to the federal government to find and prosecute them. The case is U.S. v. Oakland Cannabis Buyers' Cooperative, No. 00-151. Separately yesterday, the justices heard arguments in a case that will decide whether the New York Times and other major publishers may freely redistribute past articles by freelance authors to online databases such as Lexis-Nexis. The Washington Post Co. joined a friend-of-the-court brief in support of the publishers. The writers say that they retain rights to the work under federal copyright law and that it is unfair for huge media corporations not to share the profits that come from republishing the articles on the databases. The publishers say that, as reproduced by the databases, the articles are "revisions" over which the law grants them full control. Publishers say that they might have to purge thousands of articles from the databases rather than face what the writers have predicted would be "massive liability claims." The case is New York Times v. Tasini, No. 00-201. - --- MAP posted-by: Jo-D