MEDICAL MARIJUANA

If you read a variety of newspapers yesterday, you found different versions
of what the U.S. Supreme Court decided in relation to marijuana use for
medical purposes in California. Some accounts went so far as to state that
Prop. 215 was all but dead.

That would be greatly exaggerated.

Here's what happened. The U.S. Supreme Court issued a temporary stay of U.S.
District Court Judge Charles Breyer's amended injunction, which would have
allowed the Oakland Cannabis Buyers' Cooperative to distribute medical
marijuana to patients who meet a "medical necessity" test.

The stay does not invalidate California's Proposition 215, which allows the
medical use of marijuana with a doctor's recommendation. Nor does the
decision signal that the high court is likely to invalidate the California
law or the similar laws passed by voters in other states.

The reason is simple. Despite the rhetoric about state laws conflicting with
federal law and federal law being supreme, none of California's medical
marijuana laws have been challenged in court, on any grounds.

The U.S. Supreme Court cannot invalidate a state law unless it has a case
before it. California's law remains on the books as Section 11362.5 of the
Health and Safety Code.

The Oakland Cannabis Buyers' Cooperative case the Supreme Court was asked to
consider was brought under federal law. The Supreme Court might eventually
have to decide the rather narrow issue of whether, under federal
anti-marijuana laws, a medical necessity defense would allow not only the
possession and use but also the distribution of marijuana to people with
serious illnesses.

But until a court challenge against state medical marijuana laws is filed,
the U.S. Supreme Court will not have any opportunity to invalidate those
laws. Meanwhile, as Robert Raich, attorney for the Oakland cooperative, told
us, this Supreme Court decision is "a bump in the road, not the end of the
road."

It highlights the cruelty of the Clinton-Gore administration's approach to
medical marijuana and is likely to have a chilling effect on the 35 other
cooperatives in the state.

The Supreme Court decision arises from a civil suit filed by federal
authorities under federal law in 1998 against the Oakland cooperative and
six other northern California cannabis cooperatives. Judge Breyer, a federal
judge, in that case enjoined the clubs against distributing cannabis as
being inconsistent with federal law, though he was careful to note that "The
court has not declared Proposition 215 unconstitutional."

The Oakland club complied and appealed to the federal Ninth Circuit appeals
court. That court directed Judge Breyer that under federal law medical
necessity is a "legally cognizable defense" and ordered him to rehear the
case with that in mind. He did so and modified his injunction accordingly,
setting forth a four-part test of medical necessity that is much stricter
than California law requires.

The federal government appealed and asked the U.S. Supreme Court to stay his
injunction until their appeal is decided by the Ninth Circuit.

The decision to grant the stay was procedural in nature and did not deal
with the merits of the case. As both Mr. Raich and California Attorney
General Bill Lockyer agreed, it would have been most unusual for the Supreme
Court not to grant the request.

California Attorney General Lockyer did write to U.S. Attorney General Janet
Reno urging the federal government not to contest the Ninth Circuit's
medical-necessity decision.

He told us Wednesday that his office is conferring with attorneys general in
other western states to see if a cooperative effort to influence the case
whether a friend-of-the-court brief or some other intervention can be
developed.

He prefers to organize a united front among state AGs, but says his office
will file in the case whether other states do so or not. Bottom line?
California's medical marijuana law remains in place and unchallenged.
Attorney General Lockyer, while he hasn't done as much as we might like to
implement it, acknowledges that his duty is to defend what the voters
enacted.

Federal law might or might not eventually acknowledge a medical-necessity
defense. Final resolution of any of these matters is a long way off.