STATE'S TOP COURT MULLS MEDICAL MARIJUANA LAW

Five and a half years after California passed its medical marijuana law,
the state Supreme Court is about to consider what Proposition 215 really means.

The court will hear arguments today in Los Angeles in the Tuolumne County
case of Myron Carlyle Mower, 40. The case began and will be argued far from
the Bay Area, but its effects here could be profound.

"This is the first Proposition 215 case in front of the California Supreme
Court, so it really gives them the opportunity to lay out a lot of the
unanswered questions," said Santa Clara University School of Law professor
Gerald Uelmen, who will argue Mower's case. Uelmen also has helped
represent the Oakland Cannabis Buyers Cooperative in its legal battles.

The court will decide whether Proposition 215 of 1996 -- the Compassionate
Use Act that aimed to legalize medical marijuana use -- confers immunity
from prosecution, or whether someone must be arrested and brought to trial
before using the medical marijuana law as a defense.

At issue is the law's language saying penal provisions dealing with
possession and cultivation "shall not apply" to qualified patients using
marijuana on a doctor's say-so, and saying such patients and doctors "are
not subject to criminal prosecution or sanction."

The case also might allow the court to decide whether the medical marijuana
law prevents counties or cities from setting their own limits on how much
marijuana a patient can grow or possess -- a key issue around here, where
Oakland's and Berkeley's limits on the number of plants permissible have
raised great controversy.

"That one is going to be dicey -- I'm least confident about the court
taking that issue on," Uelmen said of the plant limits.

Mower, a seriously ill and legally blind diabetic from Sonora who uses
marijuana to control nausea and stimulate appetite, was still on probation
from a 1993 marijuana-growing conviction when Proposition 215 became law
and when officers found seven marijuana plants at his home early in 1997.

After that, Tuolumne County set a three-plant limit for personal medical
use. In July 1997, officers returned to Mower's home and found 31 plants.
He was tried and convicted of marijuana cultivation and possession.

In his appeal, he claimed he was entitled to complete immunity under
California's medical marijuana law. He also claimed Tuolumne County's
three-plant policy violated the state and U.S. Constitutions' ex post facto
clauses, which forbid passing a law after an event that retrospectively
changes the event's legal consequences.

The state Court of Appeal's Fifth District in December 2000 ruled Mower's
reading of Proposition 215 "simply unworkable" because it would make police
either ignore marijuana or do extensive investigations to clear people
before arrest. The law provides an affirmative defense at trial, not
complete immunity, the court found, declining to address the three-plant
limit issue.

The state Supreme Court took the case in March 2001.

"The Supreme Court rarely grants a hearing to just affirm the Court of
Appeal and say, 'You guys got it right,' so there is reason to be
optimistic," Uelmen said Monday.