THE HIGH COURT WILL HEAR THE CASE AGAINST AN OAKLAND BUYERS' COOPERATIVE

The medical marijuana case the U.S. Supreme Court will hear this
Wednesday will not give the high court the opportunity to rule on
whether California's medical marijuana law (Prop. 215, now Section
11362.5 of the Health and Safety Code) or the similar laws passed in
eight other states are valid. But it comes at a time when intellectual
and political ferment over the country's drug laws is more active than
anytime in my memory, and it could have a powerful influence on drug law
reform in the near future.

I'll be there to listen to the oral arguments in United States of
America v. Oakland Cannabis Buyers' Cooperative and Jeffrey Jones, talk
to as many participants as possible, and report what I learn to Register
readers.

While some observers believe the Supreme Court took the case in an
expedited manner so it could weigh in on the state-level medical
marijuana laws that have passed by impressive margins wherever they have
been on the ballot over the last five years, it cannot do so because the
case before it does not involve a challenge to any of those state laws.
In fact, none of the state laws passed since California passed Prop. 215
and Arizona passed Prop. 200 in 1996 has been challenged in federal
court on the grounds that they are in conflict with federal law or the
U.S. Constitution.

The case against the Oakland Cannabis Cooperative was brought under
federal law. The issue before the Supreme Court is a relatively narrow
one - whether under federal law an exemption to the strict federal
prohibition of cultivation, distribution and use of marijuana, by virtue
of its being on Schedule I of the federal Controlled Substances Act, can
be allowed for patients who meet a strict four-pronged test of medical
necessity. However, the briefs filed in the case discuss other related
issues and could give the court the opportunity to rule more broadly if
it chooses.

In some ways the case presents the high court with an interesting
dilemma. Over the past several years, beginning with the Lopez case in
1995, the high court has shown a pattern of taking cases that give it
the opportunity to limit the power of the national government. In the
Lopez case, it invalidated the Gun-Free School Zone Act not only because
most states already had similar laws, but because it ruled that the U.S.
Constitution's interstate commerce clause, while giving Congress broad
authority, did not give it unlimited authority. The area around local
schools cannot be construed to be involved in interstate commerce, a
conservative 5-4 majority led by Chief Justice Rehnquist held - even
though some of the guns involved might have been manufactured or
purchased out-of-state - so Congress didn't have the authority, in a
government of enumerated and therefore limited powers, to pass the law.

Similar rulings have limited the central government's power to punish
certain rape cases and to authorize suits under federal law against
state governments over insurance and employment practices by state
employees. Some observers see the possibility that Chief Justice
Rehnquist would like to leave, as part of his legacy, the beginning of a
serious challenge on constitutional grounds to the growth of central
government power and authority, an increase in which the courts have,
for the most part, acquiesced in since the New Deal.

So here comes the Oakland Cannabis Cooperative case, which could test
whether the court, and especially its limited-government conservative
members, really mean it.

After Prop. 215 passed with a 56 percent majority in 1996, several clubs
or cooperatives in Northern California (some of which had operated
before the initiative passed) expanded their memberships and dispensed
cannabis to patients who could show a recommendation from a licensed
California physician. Some state-level cases tested whether the new law
really allowedsuch methods of distribution, without an unequivocal
outcome.

Then in January 1998 (most observers believe at the behest of
then-California Attorney General Dan Lungren) the federal government
sued in federal district court to shut down the clubs. Specifically, it
sought an injunction against "engaging in the manufacture or
distribution of marijuana, or the possession of marijuana with the
intent to manufacture and distribute marijuana in violation of 21 U.S.C.
Sec. 841(a)(1)," the federal Controlled Substances Act.

The district court granted the injunction in May 1998, and rejected a
"blanket" assertion of medical necessity for some patients that
attorneys for the Oakland cooperative had requested. All the other
Northern California clubs covered by the injunction went out of business
(though new ones appeared), but the Oakland cooperative stayed in
existence and appealed to the federal Ninth Circuit appellate court to
have a medical necessity defense recognized under federal law.

On September 13, 1999 the Ninth Circuit reversed the district court,
holding that the court could take a medical necessity defense into
account using its equitable discretion, and that the record justified
such a modification of the injunction. On July 17, 2000 the district
court modified its injunction to exempt the distribution of cannabis to
patient-members who (1) suffer from a serious medical condition, (2)
will suffer imminent harm if denied access to cannabis, (3) need
cannabis to treat a medical condition and (4) have no reasonable legal
alternative because other legal alternatives have been tried and found
ineffective or intolerable in their side effects.

The federal government appealed this modification and asked the Supreme
Court to issue a stay until the matter could be litigated, which it did
on Aug. 29. The Ninth District was prepared to hear the case, but the
Supreme Court took jurisdiction for itself.

We're not talking about a lot of patients here. The cooperative's brief
says only 14 of its several thousand members who qualify to use cannabis
under the unchallenged state law would meet the injunction's test. But
if the Supreme Court agrees that a medical necessity defense is
available under the federal Controlled Substances Act, the ruling would
apply nationwide, including in states that have not yet changed their
laws to allow medical use of marijuana.

It wouldn't be tough to set up such a system. As the Oakland brief
notes, the federal government set up a Compassionate Investigative New
Drug program in the 1970s in response to a glaucoma patient, Robert
Randall, who secured a medical-necessity ruling from a lower court. That
program, which stopped accepting new patients in 1990, still distributes
cannabis, courtesy of the taxpayers, to eight patients. Nobody has
argued that this program violates the Controlled Substances Act. (The
government, in its brief, doesn't mention the program.)

The government argues that a necessity defense, one of the oldest
concepts in Anglo-Saxon common law, is simply not available under the
Controlled Substances Act. It says Congress, by keeping marijuana on the
Act's most restrictive schedule for drugs, Schedule I, has made its
intentions clear in the matter and the courts cannot override it. The
Oakland brief argues that it would have been necessary to rule out a
necessity defense explicitly, and nothing in the act's language or
legislative history suggests an intent to rule out a possible necessity
defense.

Oakland's case will be argued by Prof. Gerald Uelmen of Santa Clara
University, who has argued more than 50 appellate cases and was on O.J.
Simpson's "dream team." The government's case will presumably be argued
by Solicitor General-designate Ted Olson of Florida post-election fame,
a Supreme Court bar veteran.

The Family Research Council and Drug Free America Foundation have filed
amicus curiae "friend of the court" briefs on behalf of the government.
California Attorney General Bill Lockyer has filed an amicus brief
loaded with solid 9th and 10th Amendment arguments on the power and
liberties of the states and the people, on behalf of the Oakland
cooperative and California's right to make its own decisions in this
area.

The National Association for the Reform of Marijuana Laws (NORML) and
National Association of Criminal Defense Lawyers have filed on Oakland's
behalf, as have the California Medical Association, the California
Nurses' Association, the Lymphoma Foundation of America, several AIDS
patients groups and Elvy Musikka, a federal patient. A group of elected
officials including New Mexico Gov. Gary Johnson, Cumberland County
Sheriff Mark Dion and state Sen. Anne Rand in Maine, and California
state Sen. John Vasconcellos have filed their own brief on behalf of the
Oakland cooperative.

With New Mexico passing some modest drug-reform laws, with nine states
having passed medical marijuana laws and several passing or considering
laws permitting the growing of industrial hemp, with a renewed national
discussion on drug laws centered around the movie "Traffic" - and with
Canada's highest court having ordered the government to set up a medical
marijuana authorization and distribution system or face the voiding of
all its marijuana-possession laws and Mexican President Vicente Fox
having endorsed the idea of drug legalization as preferable to the
violence and corruption surrounding the current laws - drug reform is in
play.

It will be interesting to see if the Supreme Court notices.