JUDGE TELLS FEDS TO BACK OFF FROM MEDICAL POT GROUP

SAN FRANCISCO - A judge on Wednesday ordered the federal government to keep
away from a California medical marijuana group that grows and distributes
cannabis for its sick members.

The decision from U.S. District Judge Jeremy Fogel in San Jose was the
first interpretation of a federal appeals court decision here last year
that ordered the federal government not to prosecute a sick Oakland woman
who smoked marijuana with a doctor's recommendation under a 1996 California
medical marijuana law.

Fogel ruled that the Justice Department cannot raid or prosecute the 250
members of the Wo/Men's Alliance for Medical Marijuana, which sued the
government after the Drug Enforcement Administration in 2002 raided its
Santa Cruz County growing operation and seized 167 marijuana plants.

The group's director, Valerie Corral, said the group had been receiving and
growing marijuana in secret since the raid out of fear of being prosecuted.
But with Fogel's decision, the group intends on immediately planting
hundreds of plants at Corral's one-acre property in the Santa Cruz hills.

"You better believe it we're gonna plant," Corral, who uses marijuana to
alleviate epileptic seizures, said in a telephone interview. "I'm leaving
now. It's amazing."

The Justice Department, which urged Fogel not to issue an injunction
barring new raids or prosecutions, declined comment. Spokesman Charles
Miller said the government was reviewing the decision.

The marijuana group asked Fogel to issue the injunction after the 9th U.S.
Circuit Court of Appeals ruled in December that a congressional act
outlawing marijuana may not apply to sick people with a doctor's
recommendation in states that have approved medical marijuana laws.

The San Francisco-based appellate court, ruling 2-1, wrote that prosecuting
these medical marijuana users under a 1970 federal law is unconstitutional
if the marijuana isn't sold, transported across state lines or used for
non-medicinal purposes.

"The intrastate, noncommercial cultivation, possession and use of marijuana
for personal medical purposes on the advice of a physician is, in fact,
different in kind from drug trafficking," Judge Harry Pregerson wrote for
the 9th Circuit in December.

The court added that "this limited use is clearly distinct from the broader
illicit drug market, as well as any broader commercial market for medical
marijuana, insofar as the medical marijuana at issue in this case is not
intended for, nor does it enter, the stream of commerce."

That decision was a blow to the Justice Department, which argued that
medical marijuana laws in nine states were trumped by the Controlled
Substances Act, which outlawed marijuana, heroin and a host of other drugs
nationwide. The Justice Department on Tuesday appealed that 9th Circuit
decision to the Supreme Court.

The Controlled Substances Act, as applied to the Santa Cruz cooperative,
Fogel wrote, "is an unconstitutional exercise" of federal intervention.

Fogel's decision, meanwhile, furthers the conflict between federal law and
California's 1996 medical marijuana law, which allows people to grow, smoke
or obtain marijuana for medical needs with a doctor's recommendation.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington
state have laws similar to California, which has been the focus of federal
drug interdiction efforts. Agents have raided and shut down several medical
marijuana growing clubs.

The appeals court, the nation's largest, does not have jurisdiction over
Colorado and Maine.

Wednesday's decision, in addition to December's Circuit ruling, are
outgrowths of a 2001 U.S. Supreme Court ruling. That year, the Supreme
Court said that medical marijuana clubs could not dole out medical
marijuana based on the so-called "medical necessity" of patients, even if
they have a doctor's recommendation to use marijuana.

Justice Clarence Thomas wrote that an Oakland pot club could not defend its
actions against federal drug laws by declaring it was dispensing marijuana
to the medically needy.

But the justices said they addressed only the issue of a so-called "medical
necessity defense" being at odds with the Controlled Substances Act that
says marijuana, like heroin and LSD, has no medical benefits and cannot be
dispensed or prescribed by doctors.

In the 2001 decision, Justice Thomas wrote that Supreme Court left several
questions unresolved, including whether the government could interfere with
the states to make their own medical marijuana laws.

"The Supreme Court had left this door open," said Gerald Uelmen, a scholar
at the Santa Clara University School of Law who represented the Wo/Men's
Alliance for Medical Marijuana.

The case decided Wednesday is Santa Cruz v. Ashcroft, 03-01802.