HIGH COURT GRAPPLES WITH MEDICAL MARIJUANA ISSUE

The issue before the U.S. Supreme Court on March 28 ostensibly was
medical marijuana, but things are seldom so simple with the Court. U.S.
v. Oakland Cannabis Buyers' Cooperative also grappled with underlying
principles concerning the roles of the national and state governments in
the federated structure of governance, as well as with questions of
popular will and the appropriate route for prosecution.

A majority of the justices pursued lines of questioning that left most
observers believing that they were not favorably disposed to pot. Yet
most also believe that the court will end up issuing a narrow ruling, as
is their preference, that will not completely resolve all questions
surrounding medical marijuana.

In 1996, California voters overwhelmingly passed Proposition 215 that
allowed seriously ill patients to use marijuana for medical purposes
without fear of legal prosecution under the law. The Oakland Cannabis
Buyers' Cooperative was among those created to provide a safe and
affordable supply of marijuana for sick people, and was so recognized by
the city government.

Federal prosecutors moved to close all such organizations in the state
as being in violation of the Federal Controlled Substances Act (1970),
which declares marijuana to be of no medical value and prohibits its
use.

The feds decided not to criminally prosecute sick people using
marijuana, but rather chose to file civil suits against organizations
such as the cooperative that supplied them the marijuana. The approach
seemed to be crafted to avoid a direct legal challenge of Proposition
215 and to avoid putting the matter before a jury, most of whom likely
voted for the proposition.

The matter went back and forth between U.S. District Judge Charles
Breyer and the 9th U.S. Circuit Court of Appeals. The narrow issue that
ended up before the Supreme Court was whether organizations and
individuals can raise a medical necessity defense in justifying
violation of the federal law.

Medical necessity argues that an individual's right to save their own
life trumps the law.

Cooperative attorney Gerald Uelmen said that lower courts had recognized
"a limited exception" to the law under the medical necessity argument.

Justice Anthony Kennedy responded that the scope of the case before them
"doesn't sound limited at all," while Justice Sandra Day O'Connor said
the argument "appeared to create a blanket exception to the Controlled
Substances Act."

Justice Antonin Scalia seemed to differentiate between use of a medical
necessity defense for an individual and for those prescribing and
dispensing marijuana. He called the latter "a vast expansion beyond any
necessity defense I've ever heard."

Uelmen admitted to Chief Justice William Rehnquist that while lower
courts had recognized the medical necessity defense, the Supreme Court
had not.

Justice Ruth Bader Ginsburg, who underwent treatment for colon cancer a
year ago, pressed questions on the extent of use of marijuana by
patients. Kennedy noted that there were no patients as plaintiffs in the
case before them.

Further clouding the matter was the procedural question raised by
Justice David Souter. He suggested that federal officials pursued civil
rather than traditional criminal prosecution as a tactic by which they
could avoid a jury, where it would be difficult to obtain a conviction
in light of the public vote for Proposition 215. He suggested that this
may be a misuse of prosecutorial authority.

An added wrinkle is that only eight justices will decide the issues.
Justice Stephen Breyer withdrew from the case because of a possible
conflict of interest. His younger brother, Charles, was the district
judge who heard the original case.

It is always difficult to predict how the Supreme Court will rule on a
matter before them. It is perhaps even more difficult in this instance
given that so little case law exists in this area and there are many
competing questions.

Most observers anticipate a fairly narrow ruling that will not take on
the legitimacy of medical marijuana initiatives passed by voters in nine
states. Language on the medical necessity defense likely will be limited
to organizations, leaving the question of its use by individuals for
another day.