SKEPTICAL JUSTICES HEAR POT LAW DEFENSE

WASHINGTON -- Marijuana is an illegal drug, even if voters, including
those in California, like the idea of using it in medical therapy, the
federal government argued Wednesday as the Supreme Court took a first
look at the debate over prescription pot.

The court's watershed ruling, expected by June, likely would settle
whether patients may get marijuana as a "medical necessity" even
though it is an illegal drug under federal law.

A ruling for the Oakland Cannabis Buyers Cooperative would allow
special marijuana clubs to resume distributing the drug in California,
which passed one of the nation's first medical marijuana laws in 1996.

A ruling for the federal government would not negate the California
voter initiative, but would effectively prevent clubs like Oakland's
from distributing the drug.

A ruling against medicinal pot also would not stop California courts,
prosecutors and juries from making judgments based on state and local
laws.

In Placer County, Steve and Michele Kubby recently were prosecuted
after 265 pot plants were found in a raid of their home. But the local
jury balked, deadlocking 11-1 in favor of acquittal.

Eventually, all the marijuan charges against the Kubbys were dropped
and Steve Kubby's three felony convictions, involving other drugs,
were reduced to misdemeanors.

Steve Kubby, the Libertarian candidate for governor in 1998, said he
uses the drug in fighting cancer.

Proposition 215, California's medical marijuana initiative, allows pot
use by people who can prove they have a "medical necessity." It also
covers their caregivers and physicians.

After the measure's passage in 1996 by 56 percent of the state's
voters, a variety of cooperatives opened to dispense the drug.

But in Washington on Wednesday, several justices seemed skeptical of
the marijuana-as-medicine argument in general, and of the notion that
marijuana distributors have what the club's lawyers call a
medical-necessity defense in court.

That defense would essentially have a judge or jury agree that
someone's need for the drug overrides the law. If that is so, then
someone should be an actual patient, rather than a business organized
to dispense or sell drugs, Justice Antonin Scalia suggested.

"That's a vast expansion beyond any necessity defense I've ever heard
of," Scalia said.

Justice Anthony M. Kennedy seemed to agree.

"You're asking us to hold that this defense exists ... with no
specific plaintiff before us, no specific case," Kennedy told the
club's lawyer, Gerald Uelman.

At the White House, spokesman Ari Fleischer said President George W.
Bush supports federal prohibitions on marijuana, but also respects
states' rights to pass referendums like California's.

"The president is opposed to the legalization of marijuana, including
for medicinal purposes," he said.

A vocal assortment of interest groups and activists supporting the use
of marijuana as medical treatment mounted an energetic public
relations campaign ahead of Wednesday's oral arguments, and activists
on both sides gathered outside the court.

One woman carried a picket depicting a red "Stop" sign. It read: "Stop
arresting patients for medical marijuana."

On the other side, Scott Rich of the conservative Family Research
Council said endorsing marijuana as therapy sends the wrong message to
young people.

"Marijuana is not good medicine, to put it simply," he
said.

A ruling against the club would mean the government could prosecute
distributors aggressively in federal court, regardless of whether
states have approved medical marijuana use. That would force providers
underground or out of business altogether, advocates of medical
marijuana say.

California Attorney General Bill Lockyer is backing the Oakland club,
arguing that the state has the right to enforce its law allowing
seriously ill patients to use marijuana.

Some patients and doctors say the drug relieves nausea, improves
energy levels and helps combat the symptoms of ailments ranging from
cancer to AIDS to glaucoma and multiple sclerosis.

The Clinton administration sued the Oakland group and five other
California distribution clubs in 1998, arguing that the clubs broke
federal drug law by distributing, and in some cases growing, marijuana
for medical use.

U.S. District Judge Charles Breyer, brother of Supreme Court Justice
Stephen Breyer, sided with the government. All the clubs except the
Oakland group eventually closed down, and the Oakland club turned to
registering potential marijuana recipients while it awaited a final
ruling.

Last year, an appeals court revived the case by ruling that "medical
necessity" is a legal defense, and Judge Breyer followed up by issuing
strict guidelines for making that claim.

Before leaving office, the Clinton administration appealed to the
Supreme Court.

The government said the Oakland club flouted the law and continued to
distribute marijuana after an order to stop.

Then-Solicitor General Seth Waxman also rejected the notion that
marijuana could be a medical necessity, and said Congress had spoken
clearly on the issue in the broad 1970 law that regulated drug
distribution.

Justice Breyer will not participate as the other eight justices
consider their ruling. Should the court divide 4-4, the appeals court
ruling would stand and the marijuana club would be back in business.

Voters in Alaska, Colorado, Maine, Nevada, Oregon and Washington also
have approved ballot initiatives allowing the use of medical
marijuana. In Hawaii, a similar law was passed by the legislature and
signed by the governor in June 2000.

The case is United States v. Oakland Cannabis Buyers Cooperative,
00-151