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Pubdate: Thur, 31 August 2000
Source: Orange County Register (CA)
Copyright: 2000 The Orange County Register
Contact: letters@link.freedom.com
Address: P.O. Box 11626, Santa Ana, CA 92711
Fax: (714) 565-3657

Note: Our newshawk writes: The Orange County Register wins our praise for
the best job of explaining the significance of the Supreme Court ruling on the Oakland Case


If you read a variety of newspapers yesterday, you found different versions of what the U.S.
Supreme Court decided in relation to marijuana use for medical purposes in California. Some
accounts went so far as to state that Prop. 215 was all but dead.

That would be greatly exaggerated.

Here's what happened. The U.S. Supreme Court issued a temporary stay of U.S. District
Court Judge Charles Breyer's amended injunction, which would have allowed the Oakland
Cannabis Buyers' Cooperative to distribute medical marijuana to patients who meet a
"medical necessity" test.

The stay does not invalidate California's Proposition 215, which allows the medical use of
marijuana with a doctor's recommendation. Nor does the decision signal that the high court is
likely to invalidate the California law or the similar laws passed by voters in other states.

The reason is simple. Despite the rhetoric about state laws conflicting with federal law and
federal law being supreme, none of California's medical marijuana laws have been challenged
in court, on any grounds.

The U.S. Supreme Court cannot invalidate a state law unless it has a case before it.
California's law remains on the books as Section 11362.5 of the Health and Safety Code.

The Oakland Cannabis Buyers' Cooperative case the Supreme Court was asked to consider
was brought under federal law. The Supreme Court might eventually have to decide the
rather narrow issue of whether, under federal anti-marijuana laws, a medical necessity
defense would allow not only the possession and use but also the distribution of marijuana to
people with serious illnesses.

But until a court challenge against state medical marijuana laws is filed, the U.S. Supreme
Court will not have any opportunity to invalidate those laws. Meanwhile, as Robert Raich,
attorney for the Oakland cooperative, told us, this Supreme Court decision is "a bump in the
road, not the end of the road."

It highlights the cruelty of the Clinton-Gore administration's approach to medical marijuana
and is likely to have a chilling effect on the 35 other cooperatives in the state.

The Supreme Court decision arises from a civil suit filed by federal authorities under federal
law in 1998 against the Oakland cooperative and six other northern California cannabis
cooperatives. Judge Breyer, a federal judge, in that case enjoined the clubs against
distributing cannabis as being inconsistent with federal law, though he was careful to note that
"The court has not declared Proposition 215 unconstitutional."

The Oakland club complied and appealed to the federal Ninth Circuit appeals court. That
court directed Judge Breyer that under federal law medical necessity is a "legally cognizable
defense" and ordered him to rehear the case with that in mind. He did so and modified his
injunction accordingly, setting forth a four-part test of medical necessity that is much stricter
than California law requires.

The federal government appealed and asked the U.S. Supreme Court to stay his injunction
until their appeal is decided by the Ninth Circuit.

The decision to grant the stay was procedural in nature and did not deal with the merits of the
case. As both Mr. Raich and California Attorney General Bill Lockyer agreed, it would have
been most unusual for the Supreme Court not to grant the request.

California Attorney General Lockyer did write to U.S. Attorney General Janet Reno urging
the federal government not to contest the Ninth Circuit's medical-necessity decision.

He told us Wednesday that his office is conferring with attorneys general in other western
states to see if a cooperative effort to influence the case whether a friend-of-the-court brief or
some other intervention can be developed.

He prefers to organize a united front among state AGs, but says his office will file in the case
whether other states do so or not. Bottom line? California's medical marijuana law remains in
place and unchallenged. Attorney General Lockyer, while he hasn't done as much as we might
like to implement it, acknowledges that his duty is to defend what the voters enacted.

Federal law might or might not eventually acknowledge a medical-necessity defense. Final
resolution of any of these matters is a long way off.
MAP posted-by: Richard Lake