POT CASE RULING EXPECTED

Judge Will Decide 'Soon' On Whether To Block U.S. From Acting Against Santa
Cruz Marijuana Group

A federal judge promised Monday to decide "soon" whether to restrain the
U.S. government from acting against a medicinal marijuana users' group in
Santa Cruz whose farm it raided in September.

The decision can't come soon enough for the plaintiffs, who say time is
against them. Fourteen members of the Wo/Men's Alliance for Medical
Marijuana have died since agents of the Drug Enforcement Administration
raided the group's co-op in September, said Valerie Corral, alliance
co-founder and a plaintiff in the suit.

And if the alliance is going to have a crop next year, she said, the
marijuana has to be planted not much later than mid-July. In a hearing in
San Jose on Monday, U.S. District Judge Jeremy Fogel expressed sympathy for
the plaintiffs.

"One cannot read the declarations before the court without being moved by
them," he said, but added, "I cannot tell you when" the ruling on a
temporary restraining order against the U.S. government might come.

Not only is it summer -- with vacations to consider -- but "there are some
more issues involved in this," said Assistant U.S. Attorney Mark T.
Quinlivan, who argued the government's case.

Late last year, it took about a month for Fogel to rule against WAMM's
request to have the seized marijuana plants returned, he said. "It would
not surprise me if it went to September."

Quinlivan otherwise declined to comment, citing departmental policy. The
defendants are Attorney General John Ashcroft, National Drug Control Policy
Director John P. Walters, and William B. Simpkins, acting administrator of
the DEA.

But the judge's remarks were cause for optimism among attorneys for the
plaintiffs, the city and county of Santa Cruz along with WAMM and seven of
its members.

"The judge is looking for hooks that have not been presented to the court
before," said Gerald Uelmen, lead attorney for the plaintiffs. They include
the presence of terminally ill patients among the plaintiffs and the
addition of local governments to the case.

Fundamental rights

WAMM is arguing that depriving its members of medication they say works
violates their fundamental rights, and that the marijuana co-op, whose
members grow the plants for their own use, is not engaged in interstate
commerce -- or, indeed, in commerce of any kind, since no money is involved
- -- and is therefore not subject to federal control.

The Ninth Circuit, the federal appeals court for the West, "has squarely
rejected the contention that there is a fundamental right to obtain
unproven medical treatments," the government has argued, noting that
Congress, in passing the Controlled Substance Act, made no exception for
medicinal marijuana.

Armed DEA agents raided Valerie and Michael Corral's Davenport-area home
Sept. 5, handcuffing the couple, seizing membership lists and photo albums,
and ripping out 167 marijuana plants. WAMM sued, unsuccessfully, to get
them back.

Santa Cruz City Council members showed their support for the co-op by
allowing it to hold its regular marijuana distribution on the steps of City
Hall 12 days after the raid. Though council members were careful not to
touch the sealed packets of marijuana, the event drew national attention.

In December, the council deputized the Corrals, making it clear that as far
as the city is concerned, the Corrals are acting in an official capacity.
County officials joined the WAMM lawsuit in April, holding a televised news
conference on the steps of the courthouse.

Local vs. federal control

Since California voters in 1996 passed a medicinal marijuana initiative,
the Compassionate Use Act, the legal battle is playing out in some respects
as a local vs. federal control issue. Judge Fogel noted a certain parallel
with the desegregation cases of the 1950s, when national policy was held to
trump local control.

Whoever wins at the district court level, the case is certain to be
appealed. Neha Nissen, a member of the giant national law firm Bingham
McCutchen, which is working for the plaintiffs, said she believes Fogel
will rule before the month is out.

If Fogel grants the temporary restraining order, WAMM's members could use
marijuana without fear of government interference. If he rejects it, the
appeals could begin immediately.

"If I had to guess," Nissen said, "if he's going to rule in our favor,
it'll be on the fundamental rights issue." But, she added, "It's hard to
tell. We'll take anything."