Pubdate: Tue, 28 Nov 2000
Source: San Francisco Chronicle (CA)
Copyright: 2000 San Francisco Chronicle
Contact:  901 Mission St., San Francisco CA 94103
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Author: Bob Egelko, Chronicle Staff Writer

OAKLAND MEDICAL-MARIJUANA CASE GOES TO U.S. SUPREME COURT

Ruling To Decide If State Laws Can Survive A Federal Prohibition

In agreeing to review a medical-marijuana case from Oakland, the U.S. 
Supreme Court has put itself in a position to decide how far states can go 
in making otherwise illegal drugs available to their residents for health 
reasons.

The court granted a hearing yesterday to the Clinton administration, which 
argued that federal drug laws would be undermined by a lower court ruling 
last year in favor of the Oakland Cannabis Buyers' Cooperative.

The ruling, due by the end of June, will also test the conservative 
majority's devotion to states' rights. The justices have limited federal 
sovereignty in areas such as age discrimination, handgun background checks 
and violence against women, but have not yet examined the war on drugs 
through the same prism.

In the nation's first ruling of its kind, the U.S. Court of Appeals in San 
Francisco allowed seriously ill patients and their suppliers to win an 
exemption from the federal ban on marijuana if they could prove medical 
necessity -- a serious medical condition threatening imminent harm that 
can't be prevented by legal medicines.

Marijuana, legalized for medical purposes under state law by California 
voters in 1996, is used to combat pain and the debilitating, sometimes 
life-threatening, side effects of treatments for AIDS and cancer. It is 
also used to revive the appetites of AIDS patients suffering from a lethal 
wasting syndrome.

The government "has offered no evidence to rebut (a marijuana club's) 
evidence that cannabis is the only effective treatment for a large group of 
seriously ill individuals," the three-judge appellate panel said in 
September 1999.

Justice Department lawyers argued that the ruling flies in the face of 
Congress' determination that marijuana has "no currently accepted medical 
use. " They said the federal law allows marijuana use only in tightly 
regulated medical experiments, such as the one approved last week for 60 
AIDS patients in San Mateo County.

The Supreme Court will not rule directly on the legality of California's 
Proposition 215 or medical-marijuana laws in eight other states: Alaska, 
Arizona, Hawaii, Maine, Oregon, Washington, Nevada and Colorado. But the 
ruling is likely to determine whether those laws can co-exist with the 
seemingly absolute federal prohibition on marijuana.

"I think we've got a very strong argument, based on the way the (federal 
drug) statute has been applied, that it leaves the door open for unusual 
circumstances to permit medical use of marijuana," said Gerald Uelmen, a 
Santa Clara University law professor and lawyer for the Oakland cooperative.

"I hope the Supreme Court will consider the needs of the patients who are 
suffering," said Jeff Jones, executive director of the Oakland cooperative. 
"We have had members die during this litigation."

Jones spent the day fielding questions from reporters, patients and 
customers at the downtown storefront, which now serves as a hemp store and 
patient resource center. He recalled taking up the cannabis cause after his 
father, Wayne, died of kidney cancer in 1988 in his hometown of Rapid City, 
S.D.

He saw a healthy 200-pound man deteriorate from lack of nourishment to the 
point that he was unable to walk up stairs.

"When I found out about marijuana being an agent to deal with nausea, 
something erupted in me," said Jones, now 26.

Also at the cooperative to apply for membership was Linda Rollett, 54, of 
Napa. While suffering from colon cancer, she has encountered a wasting 
syndrome, lost interest in eating, and dropped from 140 to 82 pounds.

Marijuana "relaxes me so that I can eat, and I need to eat," Rollett said. 
"If I'm not hungry my digestive system does not work."

Lawyers say the 2,000-member cooperative is one of about 35 organizations 
that have blossomed in California to supply medical marijuana since the 
passage of Proposition 215 in 1996. Only a handful have been targeted by 
the federal government, but that could change after the Supreme Court rules.

The clubs filled a gap in the loosely drafted initiative, which allowed 
patients to possess and use marijuana based on a doctor's recommendation 
but provided no legal means to obtain the drug, other than cultivation for 
medical use.

Some marijuana clubs have reached agreement with local authorities to keep 
their doors open, regulate their operations and avoid prosecution under 
state drug-distribution laws.

Oakland has declared a public health emergency and designated the marijuana 
cooperative an agent of the city. Marijuana clubs in San Francisco can rely 
on ID cards issued by the city's Department of Public Health to residents 
who have a doctor's recommendation for the drug.

Along similar lines, state Attorney General Bill Lockyer has argued that 
law enforcement and health needs can be accommodated with a 
medical-necessity rule for marijuana. He wrote to U.S. Attorney General 
Janet Reno urging her not to appeal the Circuit Court ruling that exempted 
some patients from the drug law.

The Clinton administration campaigned relentlessly against Proposition 215, 
both before and after its passage.

Federal authorities threatened to revoke the prescription licenses of 
doctors who recommended marijuana, but were thwarted by a federal judge. 
The Justice Department also filed suit in 1998 against a half-dozen 
marijuana clubs in Northern California -- the case that has now reached the 
Supreme Court.

Texas Gov. George W. Bush has said states should decide whether to allow 
medical marijuana within their boundaries.

The Supreme Court has intervened in the case before, voting 7-1 in August 
to prevent the Oakland cooperative from resuming marijuana distribution 
while the government's appeal of the Circuit Court ruling was pending.

That order blocked a ruling by U.S. District Judge Charles Breyer, who had 
responded to the appeals court's decision by allowing the cooperative to 
supply marijuana to patients who could show a medical necessity.

Breyer is the brother of Supreme Court Justice Stephen Breyer, who has 
excluded himself from the court's consideration of the case.

Chronicle staff writer George Raine contributed to this report.
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