TOP COURT WILL TAKE OAKLAND POT CASE

Medical Marijuana Issue to Be Ruled on by Next Summer, Justices Decide

The U.S. Supreme Court agreed Monday to hear an Oakland-based case
that could bring the ultimate decision on whether people who grow and
use marijuana as medicine face federal arrest and prosecution. The
court will hear the case this winter and rule by next summer.

"This gives us an opportunity to make a nationwide precedent that will
benefit patients," said Oakland attorney Robert Raich, among the
lawyers for patient Angel McClary Raich, his wife; patient Diane
Monson of Oroville; and two unnamed marijuana growers from Oakland.

They sued U.S. Attorney General John Ashcroft and Drug Enforcement
Administration chief Asa Hutchinson -- since replaced by Karen Tandy
- -- in 2002, tailoring their case to move the issue beyond the Supreme
Court's 2001 ruling in the Oakland Cannabis Buyers Cooperative case.

In that earlier case, "the Supreme Court was dealing with a cannabis
distributor, not individual patients and their caregivers," Robert
Raich said Monday. "Legally, the issue the Supreme Court dealt with in
that case was just the doctrine of medical necessity for distributors,
not the constitutional issues involved in this case."

This case's plaintiffs claim federal interference violates their Fifth
Amendment due-process rights to be free from pain, prolong their lives
and maintain

the physician-patient relationship's sanctity. They also argue the
Ninth and 10th amendments limit federal power, leaving certain powers
- - such as authorizing medical marijuana use - to states.

But the linchpin argument is 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.

This is the claim that provided the basis for December's 9th U.S.
Circuit Court of Appeals ruling, which ordered a federal judge to
issue a preliminary injunction barring federal raids against patients
and providers at least until the full case is tried.

It's that ruling that the U.S. government is appealing to the Supreme
Court, claiming it guts federal ability to enforce the Controlled
Substances Act's ban on illicit drugs.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington state have similar laws allowing use and cultivation by
patients with a doctor's recommendation.

Boston University School of Law Professor Randy Barnett, also on the
plaintiffs' legal team, said the court will be hard-pressed to rule
against his clients.

"To find for the government, the court would have to reject its
landmark opinions... enforcing the limits on Congress' power under the
commerce clause, and that would constitute a marked change in the
direction of this court," he said. "This case stands for the
proposition that federalism is not just for conservatives."

As Marijuana Policy Project's communications director Bruce Mirken put
it, the government argues two sick women's marijuana use and two
people's cultivation of marijuana for them, all within California,
fits the definition of "interstate commerce."

"If that's true, then everything is interstate commerce and there are
no limits to federal power," Mirken said. "And that should make
conservatives' hair stand on end."

Angel Raich said Monday she's ready to go to Washington.

"I'm excited, I'm scared, I'm nervous and I'm ready," she said. "We
literally designed this case to go before the Supreme Court... but
going up to the Supreme Court does scare me a little bit because my
life is literally on the line here."

She has said 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.

"The people really need to understand there is a much bigger issue
here than medical cannabis," she said, adding that if she loses, "it
really does cut down to the core of our constitution, because then the
federal government will have power over who lives and who dies in this
country."

Mirken noted no matter what happens in this case, it applies only to
federal law; medical marijuana patients' and providers' protection
from state prosecution under laws passed in California and eight other
states will stay intact.

"At this point the momentum has become unstoppable for protection of
patients...," he said. "This really is a movement that can no longer
be stopped."