OAKLAND CLUB BARRED FROM DISPENSING POT

Supreme Court Leaves Door Open For Another Look

The U.S. Supreme Court on Tuesday blocked a judge's month-old order allowing an Oakland pot club to distribute medicinal marijuana.

But the high court's action, which had been urged by the Clinton administration, may be just a prelude to resolving a long-simmering legal conflict that pits California's voter-approved Proposition 215 against established federal drug laws.

The justices' decision to issue the emergency order signals their possible interest in reviewing lower court rulings that have opened the door for California and other Western states to dispense marijuana in certain cases without running afoul of federal law.

By a 7-1 vote, the Supreme Court froze an order by San Francisco U.S. District Judge Charles Breyer, who concluded last month that the Oakland Cannabis Buyers' Cooperative could supply marijuana to a narrow class of people suffering from major medical conditions.

Breyer based his order on a decision last September by the 9th U.S. Circuit Court of Appeals, which carved out an exception to federal drug laws by recognizing the notion of "medical necessity" and allowing distribution of pot to patients facing "imminent harm" with no effective legal alternative to marijuana.

The Supreme Court is expected to decide this fall whether to review that 9th Circuit decision.

The 9th Circuit's ruling could permit clubs such as Oakland's to supply medicinal pot in California under Proposition 215. That law, approved by the voters four years ago, has been sidetracked by legal challenges throughout the state. The appeals court ruling also applies to other Western states, including Washington, Oregon, Alaska and Arizona, which have passed laws similar to California's.

In seeking the emergency stay of Breyer's order, the U.S. Justice Department warned that creating a medical exception to federal drug laws would "cause irreparable harm" to the government's ability to enforce drug laws within the 9th Circuit.

Only Justice John Paul Stevens dissented. He said the government "has failed to demonstrate that the denial of necessary medicine to seriously ill and dying patients will advance the public interest or that the failure to enjoin the distribution of such medicine will impair the orderly enforcement of federal criminal statutes."

Disqualifies Self

Justice Stephen G. Breyer disqualified himself from the case because his brother, Charles, is presiding over the Oakland case.

The Supreme Court's action essentially bars the Oakland club from dispensing medicinal pot while the government presses an appeal of Breyer's order in the 9th Circuit. The court battle is being waged on two fronts: The Supreme Court can review the Justice Department's appeal of the 9th Circuit's ruling last September; or it could choose to wait for the 9th Circuit to decide the latest appeal arising from Breyer's order allowing the Oakland club to reopen for business.

Lawyers for the Oakland club said the Supreme Court's order is a setback only for patients who now must wait to get access to marijuana.

"This is just a small bump in the road," said attorney Robert Raich. "The important decision in this case will come down later."

The highest court's action, which came in a brief order, was the latest development in a conflict between federal narcotics laws and Proposition 215.

The state initiative allows seriously ill patients to grow and use marijuana for pain relief, with a doctor's recommendation, without state penalties. But federal law says marijuana has no medicinal purposes and cannot be administered safely under medical supervision.

Justice Department lawyers sued the Oakland club and five other Northern California clubs two years ago, arguing that federal law trumps Proposition 215. Breyer originally agreed, but the 9th Circuit then instructed him to take a fresh look at the case, ruling that "medical necessity" is a "legally cognizable defense" to a charge of distributing drugs in violation of a federal law, the Controlled Substances Act.

Justice Department lawyers called the 9th Circuit court's "unprecedented ruling" a dangerous one because it created "incentives for drug manufacturers and distributors to invoke the asserted needs of others as a justification for their drug trafficking."

Question Of Respect

The government's emergency request said allowing such distribution of marijuana would "promote disrespect and disregard for an act of Congress that is central to combating illicit drug trafficking and use by giving a judicial stamp of approval to the open and notorious distribution of (illegal) substances to potentially thousands of users without any of the strict controls required" by federal law.

In response, lawyers for the marijuana club argued that the government's emergency request be rejected. "The government has provided no evidence that states . . . that have passed medical cannabis laws have any difficulty prosecuting violations of their drug statutes," they said.

The Associated Press and Mercury News staff writer Howard Mintz contributed to this report.