MEDICAL MARIJUANA ISSUE RAISED

SAN FRANCISCO - A federal appeals court Monday raised the
possibility that clubs that provide medical marijuana might be
reopened, saying ``medical necessity'' could make some patients exempt
from laws against pot.

In a rebuff to the Clinton administration, the 9th U.S. Circuit Court
of Appeals told a judge who had issued an injunction against such
groups to consider exempting patients and doctors who could show
``medical necessity.'' The injunction against six medical marijuana
clubs had been issued at the request of the Justice Department.

The court did not order the exception but said there was evidence that
would justify it.

One of the six Northern California clubs, the Oakland Cannabis Buyers'
Cooperative, ``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 court said in
a 3-0 ruling.

The court noted that the ``necessity'' defense - showing that breaking
the law was the only way to prevent a more serious harm - would be
available if federal authorities prosecuted patients or club officials
for violating federal drug laws.

Because the government sought an injunction against future lawbreaking
instead of prosecuting anyone, the order should be worded to exclude
conduct that likely would be allowed if a person cited the necessity
defense at trial, the court said.

To be eligible for such an exemption, patients would have to show that
they have tried legal alternatives to marijuana and found that they
don't work or cause intolerable side effects, the court said.

The ruling was applauded by Robert Raich, a lawyer for the Oakland
cooperative, which served about 2,000 patients before being closed by
court order last year. It later reopened as a center for hemp products
and patient support, but not for marijuana distribution.

``The 9th Circuit is correctly recognizing that cannabis has medical
efficacy to a large class of patients and that it should be recognized
under federal law under the medical necessity defense,'' Raich said.

He said the ruling could lead to the reopening of the Oakland
cooperative for the limited number of patients who could show medical
necessity.

No one was immediately available at the Justice Department to respond
to the ruling, a spokesman said.

Medical marijuana clubs sprang up around California after the November
1996 approval of Proposition 215, which allowed patients with serious
illnesses to obtain and use marijuana at their doctors' recommendation
without being prosecuted under state law. The drug is used to relieve
pain and other effects of AIDS, cancer and certain other diseases and
their treatments.

The Justice Department responded by suing six Northern California
clubs, saying the absolute federal ban on marijuana distribution
overrode Proposition 215.

U.S. District Judge Charles Breyer agreed, issuing a contempt order
last year that forced four of the clubs to stop distributing
marijuana. Two of the clubs, in Fairfax and Ukiah remain open because
the government failed to present evidence that they were distributing
marijuana at the time. Other informal organizations scattered around
the state also continue to supply medicinal marijuana.