SUPREME COURT TO WEIGH POT LAWS

Oakland Business At Center Of Medicinal Marijuana Fight

For the nation's budding medicinal marijuana movement, ground zero is now a
small storefront operation in downtown Oakland that has managed to thumb
its nose at the powers of the federal government for several years.

Inside, T-shirts hawking hemp are for sale, as are pipes and other
paraphernalia used for smoking pot. Most visitors head to the back of the
store, hoping to register for the right to possess marijuana for the sole
purpose of easing the pain of a serious or even terminal medical
affliction. It is a modest refuge for a movement under siege.

The Oakland Cannabis Buyers Cooperative has weathered one legal storm after
another since California became the first state to legalize the use of
medicinal pot with the passage of Proposition 215 more than four years ago.
But this week, the club confronts by far its most significant threat, one
that has placed it at the center of a national crusade to uphold medicinal
marijuana laws in the face of federal drug restrictions.

In a case that arises out of an attempt to shutter the Oakland club and
other similar Northern California operations, the U.S. Supreme Court on
Wednesday will take its first look at the seemingly irreconcilable conflict
between a state's desire to legalize marijuana for medicinal use and
federal laws that explicitly forbid the possession of weed.

"It's our movement if we lose," says Jeff Jones, the Oakland club leader
who became a champion for medicinal marijuana after watching his father die
of kidney cancer. "I'm not in this to lose. I'm not in this to give up."

The justices will hear arguments in the case at a time when eight states
have passed laws authorizing the use of medicinal marijuana, and others are
mobilizing to do the same. Even though the Supreme Court may fall far short
of deciding the fate of medicinal marijuana laws, its approach to the
Oakland case is viewed as a bellwether of medicinal pot's chances for
survival in the legal system.

Whatever the Supreme Court rules, it will help clear up a tangle of legal
confusion that has surrounded Proposition 215 since its inception. In fact,
the U.S. Supreme Court's decision could greatly influence the California
Supreme Court, which earlier this month for the first time agreed to
consider whether Proposition 215 provides immunity from criminal
prosecution for medicinal marijuana users.

"A year from now, we'll know a lot more about medical marijuana in our
state," said David De Alba, California Attorney General Bill Lockyer's
policy adviser on Proposition 215.

States await ruling

California is not the only state hoping for clarity. In states including
Maine, officials are holding off on the mechanics of enforcing their new
medicinal marijuana laws until the Supreme Court rules. Other states, such
as Oregon, which developed the first statewide government registry of
eligible medicinal marijuana patients, are monitoring how the Supreme Court
addresses what has become a sticky legal and public policy issue.

"I'm hoping it doesn't have an impact on us," said Kelly Paige, head of
Oregon's state-run medicinal marijuana program. "It's a strange position
for all the states -- we're all involved in this knowing there is this
conflict" with federal law.

Lockyer has weighed in on the side of the Oakland club, arguing that states
like California ought to have the freedom to enforce a voter-approved law
without federal interference. The other states, however, have chosen to
watch from the sidelines, refusing to enter the case formally despite the
fact the Supreme Court's ruling will have national implications.

Legal experts say the states may be cautious because medicinal marijuana
backers have an uphill fight in the Supreme Court, which is expected to be
reluctant to curtail the federal government's power to fight drug
trafficking and regulate controlled substances.

The justices have stepped into a three-year legal standoff between the U.S.
Justice Department and backers of California's Proposition 215, approved by
voters in 1996. The high court is not deciding the legality of Proposition
215 -- rather, it is specifically reviewing an earlier federal appeals
court ruling that carved out a "medical necessity" exception to federal
drug laws that make it a crime to possess or distribute marijuana.

The Supreme Court must decide whether to affirm or reverse a 1999 ruling by
the 9th U.S. Circuit Court of Appeals, which sets law for nine Western
states. The court held that "medical necessity" could trump federal drug
laws and allow distribution of pot to patients facing "imminent harm."

In court papers, the government has called the 9th circuit's ruling
"unprecedented" and a threat to Congress' power to combat illegal drug
trafficking. In a brief filed with the justices in January, the U.S.
solicitor general argued that the ruling would allow clubs like Oakland's
to "function as an unregulated and unsupervised marijuana pharmacy."

Legal experts say creating a medical necessity right, even for sick
patients in severe pain, under drug laws is a long shot in the Supreme Court.

"This court has been very reluctant to find those kinds of rights," said
Erwin Chemerinsky, a USC law professor who supports Proposition 215. If the
court finds that California's law is pre-empted by the federal law, he
said, "It's hard to see what those other states would be doing that's not
pre-empted."

Controversial ballot measure

The medicinal marijuana issue has seemed destined to reach the U.S. Supreme
Court since California approved Proposition 215.

Proposition 215 permits the use of marijuana for the sick and dying,
including those with life-threatening illnesses such as AIDS and cancer.
But the law never made it clear how patients would obtain a drug that is
illegal, and the result has been one skirmish after another in the courts
between law enforcement officials and doctors, patients and medicinal
marijuana advocates.

Federal officials decided to test the issue in 1998 with a lawsuit against
six Northern California clubs that were providing marijuana to patients.
The Clinton administration sought an injunction to shut clubs in Oakland,
San Francisco, Santa Cruz, Marin County and Ukiah.

Even as the lawsuit percolated in the courts, clubs opened and closed
throughout the state, including one in San Jose. Some had the blessing of
local officials, others operated underground. Several of the clubs targeted
by the Justice Department shut down, but Oakland's remained open, with the
blessing of the city of Oakland, which has given the operation a permit to
serve as a registry for patients who meet the "medical necessity" requirement.

A cannabis center in West Hollywood has remained open. The Ukiah center and
the Marin County cooperative are still operating despite being targets of
the lawsuit, although their fates are tied to what happens in the Supreme
Court. If the Supreme Court rules that federal law warrants closing the
Oakland club, the Marin and Ukiah clubs are unlikely to survive.

"I just hope the patients don't get driven underground again," said Lynette
Shaw, head of the Marin cooperative, which registers patients and also
provides medicinal pot through a permit with the town of Fairfax.

A narrow exception

Gerald Uelmen, a Santa Clara University law professor who will argue the
Oakland club's case in the Supreme Court, said he will try to persuade the
Supreme Court to carve out a narrow exception that would benefit a
specific, and small, group of people.

Only eight of the justices are hearing the case: Justice Stephen Breyer
recused himself because his brother, San Francisco U.S. District Judge
Charles Breyer, has handled the Justice Department's lawsuit.

"This decision will be looked at to kind of chart the course of where we go
from here," Uelmen said. "Hopefully, it will force Congress to take the
issue more seriously."

Medicinal marijuana patients are pinning their hopes on Uelmen's arguments.

"If the Supreme Court rules against us, they give us a death sentence,"
said Angel McClary, one of the Oakland club's medical necessity patients.
"They need to understand we are sick, disabled and dying."