SUPREME COURT ROUNDUP

WASHINGTON, Nov. 27 — The Supreme Court agreed today to decide whether
"medical necessity" can justify distributing marijuana, in violation of
federal law, to people who use it to relieve pain or medical symptoms that
cannot be effectively treated by conventional means.

The case is an appeal by the Clinton administration of a federal court
ruling in California that adopted the medical necessity defense.

At issue is the future of the dozens of marijuana cooperatives formed over
the last few years as voters in a growing list of states have passed
initiatives to authorize using marijuana for medical purposes.

The medical necessity defense "runs counter to the absolute ban" on
distributing marijuana and is "directly at odds" with federal law, the
administration told the court in its appeal of a ruling by the United
States Court of Appeals for the Ninth Circuit, in San Francisco.

The case is not a criminal prosecution. Rather, it grows out of the
government's request three years ago for a federal court injunction to stop
the operations of the Oakland Cannabis Buyers' Cooperative, started by the
city of Oakland to administer a medical marijuana program under
California's Proposition 215. Also known as the Compassionate Use Act of
1996, the measure made it legal in California for seriously ill patients,
with a doctor's recommendation, to possess and use marijuana for the relief
of pain and other symptoms.

California is one of nine states where voters have adopted similar
policies. Six others — Alaska, Arizona, Hawaii, Oregon, Washington, and
Nevada, where voters approved a constitutional amendment earlier this month
— are also in the Ninth Circuit. The other two states are Maine and
Colorado, where an initiative also received voter approval earlier this month.

Tens of thousands of people are thought to be members of marijuana
cooperatives similar to the Oakland organization.

Judge Charles R. Breyer, of Federal District Court in San Francisco,
initially granted the injunction that the government sought. He is the
younger brother of Justice Stephen G. Breyer, who has recused himself from
the case, United States v. Oakland Cannabis Buyers' Cooperative, No. 00-151.

In a ruling last year, the Ninth Circuit held that Judge Breyer should have
modified the injunction to consider medical necessity and the "strong
public interest" in the availability of marijuana for patients whose
doctors think they need it.

As a result, Judge Breyer issued a new order in July, noting that the
federal government "has still not offered any evidence" to rebut the
Oakland cooperative's evidence "that cannabis is medically necessary for a
group of seriously ill individuals."

He said the cooperative could continue to supply marijuana to members who
suffer from a "serious medical condition," who will suffer "imminent harm"
without marijuana, and for whom alternative treatments have been
ineffective or have caused intolerable side effects. In August, the Supreme
Court granted the federal government's request for a stay of the ruling.

In defending the lower court's ruling, the Oakland group told the justices
that "necessity is one of the oldest and most well-entrenched common law
defenses in Anglo- American jurisprudence whose roots can be traced to the
mid-13th century in England." The group's court brief said that "contrary
to the government's contention, recognition of a necessity defense does not
undermine the rule of law."

These were some of the other developments at the court today:

Mushroom Growers

Accepting another government appeal, the court agreed to decide the
constitutionality of a federal law that requires mushroom producers to pay
into an Agriculture Department fund supporting generic advertising to
encourage people to eat mushrooms.

Such funds exist for many agricultural commodities, from honey to
watermelons to dairy products to pork. Many producers dislike the mandatory
assessments and have been challenging the generic advertising as
government-compelled commercial speech that violates the First Amendment.

Three years ago, the Supreme Court narrowly rejected a First Amendment
challenge to the generic advertising program for California tree fruits,
including peaches, plums and nectarines. But in the mushroom case, the
United States Court of Appeals for the Sixth Circuit, in Cincinnati,
nonetheless found that program unconstitutional in a ruling last year.

The appeals court said that while "the California tree fruit industry is
fully collectivized and is no longer a part of a free market," the mushroom
industry is essentially unregulated. The assessments and the advertising
program represent only the dealings that the producers have with the
federal government and cannot be justified as part of a general regulatory
approach, the Sixth Circuit said.

In its appeal, United States v. United Foods, No. 00-276, the government
told the court that the decision had created uncertainty about the
constitutionality of agricultural market programs, which Congress passed in
an effort to stabilize and strengthen various commodities.

Benefits Case

The court also agreed to decide whether the federal law governing employee
benefit programs allows plan administrators to sue a member for
reimbursement of medical expenses once the member has received money,
through a lawsuit or settlement, from a person who caused the injuries.

The lower federal courts are in dispute over whether the Employee
Retirement Income Security Act permits this kind of suit, even if the
benefits plan contains what is known as a subrogation clause providing that
a member cannot keep a double-recovery windfall.

In this case, Reynolds Metals Co. v. Ellis, No. 99-1787, the Ninth Circuit
refused to enforce the clause. The government, asked by the Supreme Court
for its views, said the question was important because "it affects the
ability of plan fiduciaries to recoup significant amounts of money on
behalf of employee benefit trust funds."