Pubdate: Tue, 15 May 2001
Source: San Jose Mercury News (CA)
Copyright: 2001 San Jose Mercury News
Contact:  http://www.sjmercury.com/
Details: http://www.mapinc.org/media/390
Author: Howard Mintz, Mercury News
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)

JUSTICES BAR DISTRIBUTION OF POT FOR MEDICINAL USE

Unanimous Ruling Clouds Future Of Cannabis Programs

The U.S. Supreme Court on Monday made it impossible to provide medicinal 
marijuana to seriously ill patients without running afoul of federal drug 
laws, issuing a broad ruling that jeopardizes the future of medicinal pot 
programs in California and other states.

In an 8-0 opinion, the justices rejected a federal appeals court's earlier 
decision that carved out a "medical necessity" exception to the nation's 
drug laws.

Although the legal battle over medicinal marijuana is far from over, the 
Supreme Court took a strict view of the 1970 Controlled Substances Act, the 
federal law forbidding the possession or sale of marijuana and a host of 
other drugs. But three of the justices warned that the ruling went too far 
because it would bar seriously ill patients from possessing marijuana and 
pose a threat to states that have legalized possession for the sick and dying.

In the short term, the Supreme Court's decision leaves cannabis clubs 
across California and in other states vulnerable to immediate closing by 
federal law enforcement officials. In the long run, the justices' ruling 
suggests that the medicinal marijuana movement must persuade Congress, not 
the courts, to create a legal way for patients to obtain pot.

"It is clear from the text of the Act that Congress has made a 
determination that marijuana has no medical benefits worthy of an 
exception," Justice Clarence Thomas wrote for the court.

The ruling did not invalidate California's Proposition 215, the nation's 
first voter-approved law permitting the use of medicinal pot, or directly 
affect similar laws now on the books in eight other states. But the opinion 
leaves states with no apparent option to supply pot legally, raising the 
possibility patients will be forced again to buy it on the street.

"The Supreme Court hit them with a bludgeon instead of a scalpel," said 
Rory Little, a Hastings College of the Law professor and former Justice 
Department appellate lawyer. "They are certainly saying the courts aren't 
going to rescue you -- it's up to the executive branch or the legislative 
branch to endorse this."

Genesis In Oakland Case

The Supreme Court's decision arises from the U.S. Justice Department's 
3-year-old case against the Oakland Cannabis Buyers Cooperative and other 
similar Northern California operations. The federal government has 
attempted to close the clubs, arguing that they violate the law and pose a 
broader threat to federal drug enforcement.

As the legal battle has unfolded, however, clubs have continued to operate 
in many spots around California, including San Francisco, Marin County, 
Ukiah, Berkeley, Santa Cruz and West Hollywood. The question now is whether 
federal prosecutors will use the Supreme Court ruling to quickly close 
their doors, or simply keep taking a selective approach to enforcement.

Justice Department officials did not return phone calls seeking comment on 
Monday's ruling. Attorney General John Ashcroft issued a statement praising 
the ruling as "a victory for enforcement of our nation's drug laws."

Jeff Jones, executive director of the Oakland club, vowed Monday to keep 
fighting, and said his operation would continue registering patients under 
a city-supported program. Oakland's club had ceased providing marijuana 
while the court case was pending.

"I feel it's heavy-handed and misguided," Jones said of the ruling. It does 
not take into account what these patients are to do, with no alternative 
being offered from the federal government as to where their medicine is 
coming from."

Scott Imler, director of the West Hollywood cannabis club, and Lynnette 
Shaw, who runs a center in Fairfax, said they were hoping to remain open, 
but reviewing their legal status.

California Attorney General Bill Lockyer, who filed a brief in support of 
the Oakland club, expressed disappointment in the Supreme Court's ruling, 
although he said his office must review it further to determine its scope. 
Most other states have been awaiting the Supreme Court's ruling before 
deciding how they will go about providing marijuana to patients.

"It is unfortunate that the court was unable to respect California's 
historic role as a laboratory for good public policy and a leader in the 
effort to help sick and dying residents who have no hope for relief other 
than through medical marijuana," Lockyer said.

Prop. 215 Unclear

The medicinal marijuana issue has been destined for the Supreme Court since 
voters approved Proposition 215, which permits the use of pot for the sick 
and dying, such as those with life-threatening illnesses including AIDS and 
cancer.

The law never made it clear how patients would obtain a drug that is 
illegal, producing repeated skirmishes in the courts between law 
enforcement officials and doctors, patients and medicinal marijuana advocates.

In 1999, the 9th U.S. Circuit Court of Appeals held that "medical 
necessity" could trump federal drug laws and allow distribution of pot to 
patients facing "imminent harm." But the Supreme Court repudiated that 
conclusion.

While legal experts do not expect federal law enforcement officials to seek 
out patients who possess marijuana, Justice John Paul Stevens warned that 
the majority's ruling goes too far because it leaves patients vulnerable by 
taking away a medical-necessity defense for them.

Another Concern

The result, Stevens wrote, was to create an "unfortunate" collision with 
states that have chosen to offer legal protection to patients and their 
caregivers. Stevens was joined by justices Ruth Bader Ginsburg and David 
Souter. Justice Stephen Breyer did not participate in the case because his 
brother, San Francisco federal Judge Charles Breyer, has presided over the 
suit against the Oakland club.

The Oakland club's lawyers plan to return to court to raise legal arguments 
not addressed in the Supreme Court's ruling, including whether denial of 
marijuana to critically ill patients under the Controlled Substances Act is 
unconstitutional.

"These issues certainly won't go away," said Santa Clara University law 
Professor Gerald Uelmen, who represented the Oakland club in the Supreme Court.
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MAP posted-by: Terry Liittschwager