Pubdate: Tue, 08 Jul 2003
Source: San Jose Mercury News (CA)
Copyright: 2003 San Jose Mercury News
Contact:  http://www.bayarea.com/mld/mercurynews
Details: http://www.mapinc.org/media/390
Author: David L. Beck, Mercury News
Bookmark: http://www.mapinc.org/topics/wamm (WAMM)

POT CASE RULING EXPECTED

Judge Will Decide 'Soon' On Whether To Block U.S. From Acting Against Santa 
Cruz Marijuana Group

A federal judge promised Monday to decide "soon" whether to restrain the 
U.S. government from acting against a medicinal marijuana users' group in 
Santa Cruz whose farm it raided in September.

The decision can't come soon enough for the plaintiffs, who say time is 
against them. Fourteen members of the Wo/Men's Alliance for Medical 
Marijuana have died since agents of the Drug Enforcement Administration 
raided the group's co-op in September, said Valerie Corral, alliance 
co-founder and a plaintiff in the suit.

And if the alliance is going to have a crop next year, she said, the 
marijuana has to be planted not much later than mid-July. In a hearing in 
San Jose on Monday, U.S. District Judge Jeremy Fogel expressed sympathy for 
the plaintiffs.

"One cannot read the declarations before the court without being moved by 
them," he said, but added, "I cannot tell you when" the ruling on a 
temporary restraining order against the U.S. government might come.

Not only is it summer -- with vacations to consider -- but "there are some 
more issues involved in this," said Assistant U.S. Attorney Mark T. 
Quinlivan, who argued the government's case.

Late last year, it took about a month for Fogel to rule against WAMM's 
request to have the seized marijuana plants returned, he said. "It would 
not surprise me if it went to September."

Quinlivan otherwise declined to comment, citing departmental policy. The 
defendants are Attorney General John Ashcroft, National Drug Control Policy 
Director John P. Walters, and William B. Simpkins, acting administrator of 
the DEA.

But the judge's remarks were cause for optimism among attorneys for the 
plaintiffs, the city and county of Santa Cruz along with WAMM and seven of 
its members.

"The judge is looking for hooks that have not been presented to the court 
before," said Gerald Uelmen, lead attorney for the plaintiffs. They include 
the presence of terminally ill patients among the plaintiffs and the 
addition of local governments to the case.

Fundamental rights

WAMM is arguing that depriving its members of medication they say works 
violates their fundamental rights, and that the marijuana co-op, whose 
members grow the plants for their own use, is not engaged in interstate 
commerce -- or, indeed, in commerce of any kind, since no money is involved 
- -- and is therefore not subject to federal control.

The Ninth Circuit, the federal appeals court for the West, "has squarely 
rejected the contention that there is a fundamental right to obtain 
unproven medical treatments," the government has argued, noting that 
Congress, in passing the Controlled Substance Act, made no exception for 
medicinal marijuana.

Armed DEA agents raided Valerie and Michael Corral's Davenport-area home 
Sept. 5, handcuffing the couple, seizing membership lists and photo albums, 
and ripping out 167 marijuana plants. WAMM sued, unsuccessfully, to get 
them back.

Santa Cruz City Council members showed their support for the co-op by 
allowing it to hold its regular marijuana distribution on the steps of City 
Hall 12 days after the raid. Though council members were careful not to 
touch the sealed packets of marijuana, the event drew national attention.

In December, the council deputized the Corrals, making it clear that as far 
as the city is concerned, the Corrals are acting in an official capacity. 
County officials joined the WAMM lawsuit in April, holding a televised news 
conference on the steps of the courthouse.

Local vs. federal control

Since California voters in 1996 passed a medicinal marijuana initiative, 
the Compassionate Use Act, the legal battle is playing out in some respects 
as a local vs. federal control issue. Judge Fogel noted a certain parallel 
with the desegregation cases of the 1950s, when national policy was held to 
trump local control.

Whoever wins at the district court level, the case is certain to be 
appealed. Neha Nissen, a member of the giant national law firm Bingham 
McCutchen, which is working for the plaintiffs, said she believes Fogel 
will rule before the month is out.

If Fogel grants the temporary restraining order, WAMM's members could use 
marijuana without fear of government interference. If he rejects it, the 
appeals could begin immediately.

"If I had to guess," Nissen said, "if he's going to rule in our favor, 
it'll be on the fundamental rights issue." But, she added, "It's hard to 
tell. We'll take anything."
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MAP posted-by: Jay Bergstrom