TOP COURT HEARS LOCAL POT CASE

Oakland Woman's Lawyers Will Argue Free Medical Marijuana Not 'Interstate
Commerce'

Oakland's Angel Raich says the marijuana she uses to keep herself out of
pain and alive is grown in California and given to her free of charge.

It's neither "interstate" nor "commerce," and so it's beyond the reach of
Congress' regulation, she and her lawyers claim. On Monday, the U.S.
Supreme Court will hear their arguments in a case that will decide whether
the federal government should be permanently barred from prosecuting
medical marijuana patients and providers.

It's a classically conservative argument for a classically liberal cause --
perhaps the only way to ever convince this Supreme Court to sign off on
letting someone smoke marijuana.

"Federalism is not just for conservatives," says Boston University law
professor Randy Barnett, in what has become a sort of medical marijuana
mantra. He'll argue the case to the high court Monday on behalf of Raich
and her cohorts: patient Diane Monson of Oroville and two unnamed Bay Area
people who supply Raich with marijuana.

Barnett says his argument "reinforces the value of federalism, which all
members of this court at one time or another have expressed great sympathy
for ... and it's the appeal of that general principle which we believe will
appeal to the majority of the court."

The government -- which doesn't differentiate between "medical" marijuana
and any other kind, deeming it all illegal -- argues that Congress does
have the power to control Raich's and Monson's drug because it's
inextricably tied to the illegal interstate and international marijuana market.

This case's seeds were sown long before it was actually filed in October
2002. It rose from the ashes of the Supreme Court's May 2001 decision in
the Oakland Cannabis Buyers Cooperative's case, in which the high court
ruled there's no medical necessity exception to the Controlled Substances
Act, which deems marijuana to have no valid medical use.

But the court that day stressed it wasn't ruling on the constitutional
questions underlying the medical marijuana debate, and so Raich, Monson and
their lawyers set out to tailor-make a case raising exactly those issues.

Raich says she uses marijuana to combat scoliosis, temporomandibular joint
disease, endometriosis, fibromyalgia, a uterine fibroid tumor and a rotator
cuff injury. She also has an inoperable brain tumor and suffers
post-traumatic stress disorder from childhood abuse and nonepileptic seizures.

Monson says she uses marijuana to control chronic back pain. When her home
was raided in August 2002, local deputies and a local prosecutor agreed her
six marijuana plants were within county guidelines under state law, but DEA
agents took the plants without charging her with any crime.

Their lawsuit raises four distinct issues:

that the Ninth and 10th amendments limit federal power, leaving certain
powers -- such as authorizing medical marijuana use -- to the states.

that federal interference violates the Fifth Amendment due-process rights
of Californians to be free from pain, prolong their lives and maintain the
physician-patient relationship's sanctity.

that medical necessity provides an exception to the federal ban on
marijuana -- an argument struck down by the Supreme Court in the OCBC case
for distributors but not necessarily for patients.

that the Constitution's commerce clause lets Congress regulate only
interstate commerce, and that Californians' medical marijuana use neither
crosses state lines nor is commerce.

It's that fourth claim, the commerce clause claim, on which the Supreme
Court will hear arguments Monday.

In March 2003, a federal judge in San Francisco denied the plaintiffs'
request for a preliminary injunction to halt federal raids upon medical
marijuana patients and providers. But in December 2003, a panel of the 9th
U.S. Circuit Court of Appeals voted 2-1 to reverse that ruling, finding the
plaintiffs had shown a strong likelihood they could prevail at trial on
their commerce clause claim, and ordering the trial judge to enter a
preliminary injunction protecting Raich and Monson against federal raids.

That injunction has been considered to apply to those "similarly situated,"
effectively tying the federal government's hands against prosecuting
medical marijuana patients and providers throughout the eight 9th Circuit
states that have adopted medical marijuana laws. The federal government
appealed to the Supreme Court to reverse the appeals court and void the
injunction.

The government claims it has a right to regulate local activity that is an
essential part of a larger regulation of economic activity. Marijuana
trafficking regularly crosses state lines and involves money changing
hands, it says, and all marijuana -- even when it's grown and given within
a single state -- affects the overall black-market supply, and so is
subject to a federal ban.

This case's issue resonates well beyond the 9th Circuit and beyond states
with medical marijuana laws. California, joined by the states of Washington
and Maryland, filed a friend-of-the-court brief on the Raich/Monson team's
behalf -- as did Alabama, joined by Louisiana and Mississippi.

Those Deep South states don't have medical marijuana laws and aren't likely
to have them anytime soon, yet they feel strongly about keeping Congress
from wielding power the Constitution doesn't award it. Call it modern
conservatism, call it lingering resentment from confederate days of yore --
whatever it is, this case has created some decidedly odd bedfellows.

"This is such an obvious issue that, although certain entities in the
federal government don't understand it, the overwhelming majority of
Americans do," said Oakland attorney Robert Raich, a member of the
patients' and providers' legal team, and Angel Raich's husband.

An archive of all documents filed in this case is available at
www.angeljustice.org