Pubdate: Mon, 21 May 2001 Source: Marin Independent Journal (CA) Copyright: 2001 Marin Independent Journal Contact: http://www.marinij.com/ Details: http://www.mapinc.org/media/673 Author: Rebecca Rosen Lum FAIRFAX PONDERS COURT POT RULING At the Fairfax cannabis buyers' club last week, the air hung heavy as a humid August afternoon in the deep South. Clients sat quietly in the waiting room of the School Street Plaza clinic Thursday while staffers fielded a storm of telephone calls from supporters, patients and journalists asking about the effect of a U.S. Supreme Court decision that prohibited medical necessity as a defense for distribution of marijuana. As a bone-thin man brandished his ID card at the clinic's reception desk, the office manager said quietly to an inquirer, "We're just waiting for the hammer to fall." In fact, the ruling seems to have done little to clear up the issues left unresolved by Proposition 215, also called the Compassionate Use Act, passed by California voters in 1996. Even Gerald Uelman, the lawyer who argued the Oakland Cannabis Buyers' Cooperative case before the high court last year, has expressed bewilderment about its implications. Fairfax Town Attorney Joe Brecher noted "there have been a profusion of talking heads talking about what (the ruling) means, but in truth, nobody knows what it means. "The ruling was not at all definitive. It was actually extremely narrow: A medical necessity defense cannot be used to bar a district court from issuing an injunction." Meanwhile, the Marin Alliance for Medical Marijuana continues to dispense pot in Fairfax, the only such outlet in Marin County. The Fairfax Planning Commission, which controls the alliance's use permit, has scheduled a discussion in July only to address some technicalities of the permit. Still, despite assurances from Brecher, some planning commissioners fear guilt by association with the pot club. They are pondering everything from their oath of office, which includes a vow to uphold the Constitution, to a vote by a previous planning commission to revoke the club's permit should federal law render illegal the state medical marijuana law. Commissioner Terri Alvillar has questioned whether the town could be "implicated in a conspiracy to distribute marijuana." According to Brecher, that is not realistic. "The town does not have any responsibility because it is not a federal agency," said Brecher, who has been the town attorney for less than a month. "You are not prosecutors. You did not take an oath to enforce federal law." The ruling left murky any number of issues, including other types of defenses that might prevail against an injunction against distribution of medical marijuana. However, Brecher said, it's clear pot clubs are "on thin ice," and might be "pretty close to the end of the trail." Steve Shaiken, chairman of the Fairfax Planning Commission, noted that "one thing is for sure: They're not sitting around in Washington, D.C., saying, 'We'd love to close that place in Fairfax down if it weren't for that darned use permit.' I don't think it matters one whit to them. We're not under any obligation to rush to any action." Although the town could choose to shut down the club for violating federal law, it would not be violating the law if it does nothing, Brecher said. That appears to be a hairline distinction to some on the commission. Said Commissioner Paul Herbert: "Under what color or authority is the club operating? They have the responsibility to explain to me how they think they can continue to operate." But Brecher intimated that while certain matters linked to the use permit might be resolved in July, discussion over the larger issues likely will rage for the foreseeable future. "This is an issue that is going to enjoy a lot of very spirited debate," he said. - --- MAP posted-by: Andrew