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Lockyer joins legal battle over potclub in Oakland - Medicinal marijuana not feds' business, state tells high court

BY HOWARD MINTZ San Jose Mercury- News - Feb 21, 2001
Contact Howard Mintz at hmintz@sjmercury.com or (408) 286-0236.

The state of California and a host of civil liberties and medical rights groups are siding with an Oakland pot distribution club in a standoff with the federal government over the future of medicinal marijuana laws to be considered next month by the U.S. Supreme Court.

In a brief filed Tuesday in the Supreme Court, Attorney General Bill Lockyer argued that California has the authority to enforce its voter-approved medicinal marijuana law without interference from the federal government. Proposition 215, overwhelmingly passed in 1996, permitted seriously ill patients to use marijuana, but backers of the law have been entangled in legal battles with the U.S. Justice Department for more than three years.

``The electorate in California have declared their view on this question, and it should be respected by this court as a democratic exercise properly reserved to the states,'' California's brief to the justices declared. ``The Constitution does not prevent the states from expressing their preference for allowing citizens to use cannabis to treat serious illness.''

Legal arguments are scheduled before the Supreme Court justices on March 28. The court is considering the issue for the first time in a case that could have sweeping implications for Proposition 215 and for the increasing number of states with laws permitting the distribution and use of marijuana for medicinal purposes.

Justice Department officials maintain that laws such as Proposition 215 conflict with federal drug laws, warning the Supreme Court that allowing states such as California to dispense medicinal marijuana would ``promote disrespect and disregard for an act of Congress that is central to combating illicit drug trafficking.''

The Clinton administration sued the Oakland Cannabis Buyers Club and five other Northern California pot clubs in 1998. Since then,

only the Oakland club has survived to keep the legal fight going, setting up mechanisms for identifying patients who would be eligible to receive medicinal marijuana, such as those with AIDS, cancer and other life-threatening illnesses. The city of Oakland has supported the cannabis club.

The 9th Circuit U.S. Court of Appeals last year set the stage for the Supreme Court case when it carved out an unprecedented exception to federal drug laws. In that ruling, the appeals court found that ``medical necessity'' could trump the drug laws and allow distribution of pot to patients facing ``imminent harm.''

Legal experts differ on whether the Supreme Court will take a narrow approach to the case, or use it to define how far medicinal marijuana laws can go generally.

Despite the potential stakes in the case, no other state chose to join California's legal position. Washington, Oregon, Arizona, Hawaii, Nevada, Colorado, Maine and Alaska have enacted medicinal marijuana laws similar to California's, and advocates are pushing for legislation in other states.

``We were hoping other states that have initiatives would join on board,'' said Santa Clara University law professor Gerald Uelmen, who will argue before the justices on behalf of the Oakland club.

The Oakland club did gather support from other officials and organizations. In one brief, New Mexico Gov. Gary Johnson, an advocate of legalization, and state Sen. John Vasconcellos, D-San Jose, were among a number of individual public officials to support the club's position. The American Civil Liberties Union and a number of medical and public health groups also signed on to friend-of-the-court briefs filed Tuesday opposing the federal government's position.

Two anti-drug organizations, the Family Research Council and the Global Drug Policy of Drug Free America, filed briefs last month supporting the Bush administration, which has inherited the case from the Clinton administration.


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