CANNABIS CLUB EXERTS LEGAL RIGHTS

OAKLAND -- The U.S. Constitution doesn't allow federal law to automatically
trump states rights, the city argues in a legal brief filed Monday in
support of the embattled Oakland Cannabis Buyers Cooperative.

In its latest efforts to bolster the 2,000-member club, the city is banking
on the 9th and 10th amendments to the Constitution in an amicus curiae brief
in the 9th U.S Circuit Court of Appeals.

The brief was written pro bono for the city by Linda LeCraw and former
general counsel to the U.S. Federal Drug Administration Peter Barton Hutt,
both of the Washington, D.C., firm Covington and Burling.

"It's an extremely important case," said Hutt, who helped write the
Controlled Substances Act of 1974.

The U.S. Department of Justice filed suit last January to close the club,
maintaining marijuana is an illegal substance under the Controlled
Substances Act.

The club is appealing an Oct. 19 order in the case, by U.S. District Judge
Charles Breyer, to close the club down.

The city's brief maintains federal laws regarding medical cannabis are
"legislated truths," unsupported by logic, comparable to laws that
persecuted African Americans, declared women unfit to vote and incarcerated
Japanese Americans during World War II.

Hutt argues that California voters, by approving Proposition 215, the
California Compassionate Use Act of 1996, "have deemed the medical use of
cannabis to be a fundamental liberty interest."

Under the 9th Amendment, the burden is on the federal government to show the
necessity of infringing that right, the city's brief argues. And under the
10th Amendment, the federal government may not interfere with a power
"reserved to the states ... or to people."

The 9th Amendment covers rights retained by the people. The 10th Amendment
refers to powers retained by the states and the people.

Given the passage last year in five other states of medical marijuana laws,
the federal government -- particularly the 9th Circuit -- must take a closer
look at the issue, Hutt maintains.

The Oakland club's court fight isn't likely to change the Clinton
administration's stand on medical marijuana overnight, said Dave Fratello,
spokesman for Americans for Medical Rights, which spearheaded the
initiatives in other states last year.

"But it's a fight worth fighting, if at least we can get the feds on the
record," Fratello said.

Since the closure order, the Oakland cannabis club was allowed to reopen by
the court on the condition it not distribute medical marijuana. The club is
holding classes on growing marijuana -- with none on the premises -- and
selling a variety of hemp products, including clothing, and paraphernalia to
help pay $300,000 in legal bills.

"It's been a stressful two years," said Jeff Jones, director of the club.
"There's a lot of fear out there."

Stacie Traylor, a club member with chronic pancreatitis, said the shutdown
is starting to take its toll. "I have some friends who can get it for me,
but it's a gamble," she said.

Traylor, 24, uses marijuana to keep nausea at bay, and to keep food down.
Her weight dips dangerously low if she doesn't.

If club members are too frail to grow it for themselves, or don't know
someone who does, they run the risk of buying marijuana laced with crack or
some other harmful substance, Traylor said.

Councilmember Nate Miley (Eastmont-Seminary) said the city may be aided by
having a new state attorney general, Bill Lockyer, and governor, Gray Davis,
who appear to be more sympathetic than their predecessors, Dan Lungren and
Pete Wilson.

"Someday in the future, society will recognize that cannabis can be used in
controlled settings for medical uses," said Miley, who chairs the council's
public safety committee.

Councilmember John Russo (Grand Lake-Chinatown) agreed, and called the case
a "classic federalism argument."

People will say, "There goes California and Jerry Brown's city," Russo said.

"We're trapped in the cultural wars of 30 years ago," said Russo. "This is
about people getting medicine. Plants are not de facto morally bad or good."

Brown declined comment, on the basis that the suit was pending litigation,
said his press secretary Stacey Wells.