HIGH COURT TO HEAR OAKLAND POT CASE

Justice Department Appealed Victory For Two Ailing Women

The Supreme Court agreed Monday to consider whether people who smoke
marijuana under a doctor's direction are exempt from a U.S. law that
bans the drug.

Justices will hear the government's appeal of a case won last year by
two California women who say marijuana is the only way they can find
relief from their painful medical conditions.

In the recent past the high court has tended to side with state and
local concerns in some clashes with the federal government. But in
2001, the high court decided for the federal government in another
medicinal marijuana case.

Eight years years ago, California voters approved a medicinal
marijuana law that allows patients to smoke marijuana under a doctor's
orders. Eight other states have enacted similar laws. But federal drug
enforcement agents have raided pot clubs that sell medicinal marijuana.

In December, the San Francisco-based 9th U.S. Circuit Court of Appeals
ruled that prosecuting medicinal marijuana use under the federal
Controlled Substances Act is unconstitutional in states that allow use
of the drug for medical purposes, as long as the pot isn't sold,
transported across state lines or used for non-medicinal purposes.

The appeals court ruled that medicinal marijuana use is distinct from
drug trafficking. But in its appeal, the Bush administration wrote
that the federal government ``controls all manufacturing, possession,
and distribution'' of any drug listed by the Controlled Substances
Act.

``That goal cannot be achieved if the intrastate manufacturing,
possession, and distribution of a drug may occur without any federal
regulation,'' the government wrote.

While no single case will settle the divisive issue of medicinal
marijuana, experts said a ruling from the high court could move the
country a significant step closer to deciding who has the final say --
states or the federal government -- over use of the drug for pain and
illness.

``It's important in terms of recognizing some limitations to the
federal power to flatly prohibit any medical use of marijuana,'' said
Santa Clara University law Professor Gerald Uelmen, who represented an
Oakland pot cooperative that was on the losing end of a 2001 Supreme
Court decision.

In that case, justices ruled that medicinal pot programs that
distribute the drug in California and other states could not sidestep
federal prosecution under a ``medical necessity'' exception.

Uelmen said the current case before the Supreme Court, Ashcroft vs.
Raich, is a good case from the perspective of medicinal marijuana
supporters.

``It is such a sympathetic and compelling set of facts,'' he said.
``You have two very sick people who get no relief from traditional
medicine and rely on medical marijuana just to get through the day.''

Uelmen said Raich could also settle the pending case of a Santa Cruz
County couple whom he represents. Their cannabis cooperative was
raided in 2002.

The two women in Raich are Angel McClary Raich and Diane Monson. The
two had sued Attorney General John Ashcroft, asking for a court order
letting them smoke, grow or obtain marijuana without fearing federal
prosecution.

Raich, a 38-year-old Oakland resident, suffers from numerous ailments,
including a brain tumor, a seizure disorder and life-threatening
wasting syndrome, and is allergic to almost all pharmaceutical
medicines. She uses marijuana every two hours to control her pain,
keep her moving and help her eat. She says she would die without the
drug.

On Monday, she said she was both excited and nervous at the prospect
of her case going before the Supreme Court.

``The case itself was designed from the beginning with the Supreme
Court in mind,'' said Raich. ``But at the same time I'm very nervous
because my life is at stake.''

Federal officials declined to comment Monday, saying the government's
brief lays out its arguments in the matter.

While supporters of medicinal marijuana said they were optimistic
Monday, experts said they will have a tough job before the Supreme
Court.

``This looks like another case where they are concerned that the 9th
Circuit may have gone too far,'' said Rory Little, a Hastings College
of the Law professor and former Justice Department lawyer. ``But it's
hard to say. More and more states are interested in legalizing some
kind of medicinal marijuana, and the political pressure continues to
build.''

Whichever way the court decides, it surely will not resolve the issue.

``This is just one shot in a long battle,'' said Little. ``And that
battle is mostly political, not judicial.''