MEDICINAL POT CLUBS GET FIRST LEGAL HOPE

Appeals court suggests exception to drug laws

Medicinal marijuana clubs, forced underground by federal law enforcement and
on the verge of extinction in California, on Monday got their first legal
break from the courts since the state's voters endorsed those clubs by
passing Proposition 215 nearly three years ago.

The San Francisco-based 9th U.S. Circuit Court of Appeals ordered a judge
who shut the doors of Bay Area clubs last year to take a fresh look at the
case, suggesting in a ruling that there may be an important exception to
federal drug laws that would allow the distribution of medicinal marijuana.

The appeals court left open the possibility that patients who have exhausted
all other medical remedies could legally get marijuana despite the blanket
anti-marijuana prohibition in U.S. law.

While the ruling dealt specifically with Oakland's Cannabis Buyers'
Cooperative, it was the first signal delivered by a federal appeals court
that the Clinton administration's firm stand on medicinal marijuana might be
vulnerable. The 9th Circuit makes law for nine Western states, including
California and others, such as Arizona and Oregon, where the
medicinal-marijuana movement has gained momentum in recent years.

``It's a positive ruling,'' said Jeffrey Jones, head of the Oakland club,
who has now been fighting the federal government for two years. ``It's the
first to reject the government's zero-tolerance, zero-compassion stance.''

In Monday's ruling, a three-judge 9th Circuit panel concluded that a showing
of a ``medical necessity'' for marijuana by doctors and patients could
permit a club like Oakland's to remain open. The court found that Oakland's
club had not been given ample opportunity to mount the medical-necessity
defense before a judge ordered it closed.

``(The Oakland club has) identified a strong public interest in the
availability of a doctor-prescribed treatment that would help ameliorate the
condition and relieve the pain and suffering of a large group of persons
with serious or fatal illnesses,'' the appeals court observed.

By contrast, the 9th Circuit said the U.S. Justice Department, which sued to
close the Bay Area clubs, ``has yet to identify any interest it may have in
blocking the distribution of cannabis to those with medical needs, relying
exclusively on its general interest in enforcing its statutes.''

Injunction still in place

The appeals court did not rule conclusively that an injunction in place
against the Oakland club should be lifted. In fact, legal experts say San
46rancisco U.S. District Judge Charles Breyer, who is handling the case,
could still decide that the medical-necessity defense does not outweigh the
public's interest in enforcing federal drug laws.

But lawyers for the club say the court's instructions appear clear. Among
other things, the 9th Circuit suggested that patients could be exempted from
federal drug laws to obtain medicinal marijuana if they can prove they
suffer from a ``serious medical condition,'' and show marijuana is necessary
for treatment and is the only medical alternative.

``It leaves us with a clear message that medical necessity is a defense or
exception under the law,'' said Santa Clara University law Professor Gerald
Uelmen, one of the lawyers representing the clubs. ``(Federal drug) laws
can't be used as a complete bar.''

Consistent position

Justice Department spokeswoman Gretchen Michael declined comment Monday,
saying that department officials had not reviewed the ruling. However,
department lawyers have taken a consistent position that federal drug laws
prevent any marijuana distribution, including the dispensing of medicinal
marijuana in California under Proposition 215.

The 9th Circuit's ruling weakens the ground under the government's legal
argument.

``(The appeals court judges) are saying that federal narcotics laws have a
medical-necessity defense available,'' said Hastings College of the Law
Professor Rory Little, former chief of appeals for the San Francisco U.S.
Attorney's Office. ``No court has ever held that to my knowledge -- it's a
dramatic assertion.''

46ederal law-enforcement officials filed suit nearly two years ago, seeking
to close six Northern California clubs that were providing medicinal
marijuana. Three of the clubs, including one in Santa Cruz, subsequently
closed voluntarily. Clubs in Ukiah and Fairfax have limited their
operations, but Oakland's club attempted to fight the case and was ordered
closed by Judge Breyer.

The federal suit did not target Santa Clara County's medicinal marijuana
club, which closed after local prosecutors charged its operator, Peter Baez,
with selling marijuana illegally. The case against Baez still is pending,
and no one has stepped forward with a new plan to distribute medicinal
marijuana in San Jose.

But if the 9th Circuit's approach to the conflict between federal law and
Proposition 215 holds up, clubs might start surfacing again,
medicinal-marijuana advocates and legal experts said. Federal opposition to
Proposition 215 has paralyzed the state's medicinal-marijuana movement, and
state efforts to solve the problem have thus far been unsuccessful.

Threat of crackdown

Marijuana clubs in San Francisco, Mendocino County and Southern California
have maintained low-key operations, but the threat of a federal crackdown
has made it difficult for clubs to survive. Mildred Lehrman, clinical
director for the Ukiah Cannabis Buyer's Club, said Monday that her outfit
has been limited to providing literature on marijuana therapy -- but not
marijuana -- to local patients since it was named in the federal lawsuit.

``I'm sure we'll be picking up the information on the (ruling),'' Lehrman
said Monday. ``(The government) has considered us closed since last year.''

Pro-medicinal-marijuana forces drew a favorable panel of 9th Circuit judges
to review the Oakland case. Judges Stephen Reinhardt of Pasadena and Mary
Schroeder of Arizona, two of the panel's members, are considered among the
most liberal judges on the 9th Circuit. The third judge was Barry Silverman,
a recent appointee of President Clinton's.

Contact Howard Mintz at hmintz@sjmercury.com or (408) 286-0236.