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Medical Marijuana Case Could Affect Berkeley

Tuesday June 29, 2004

An Oakland woman’s quest to grow medical marijuana without fear of federal intervention is heading to the Supreme Court and could result in a new precedent in the resurgent battle over states’ rights, perhaps putting in danger Berkeley’s liberal medical pot laws. 

On Monday, the high court agreed to hear the Bush Administration’s appeal of a case it lost last year in the San Francisco-based Ninth Circuit Court of Appeals. 

In 2-1 vote, an appeals court panel barred the Justice Department from raiding, arresting or prosecuting Angel Raich of Oakland and Diane Monson of Butte County, Calif. for growing physician-prescribed marijuana for personal consumption.  

Since neither plaintiff sold their plants or transported them over state lines, the court majority found that their activity rested outside federal authority. 

Intrastate, “non-commercial cultivation, possession and use of marijuana for health purposes” is protected by California law and not subject to the federal government’s power to regulate interstate commerce, Judge Harry Pregerson and Richard A. Paez argued in their opinion. 

In urging the Supreme Court to review the case, Solicitor General Theodore Olson argued the 1970 Controlled Substances Act empowers the Justice Department to oversee the manufacturing, possession and distribution of any drug on its list. 

“That goal cannot be achieved if the intrastate manufacturing possession and distribution of a drug may occur without any federal regulation,” Olson wrote. 

In 1996 California became the first of nine states—Alaska, Hawaii, Nevada, Colorado, Oregon, Washington, Maine and Vermont have followed—to pass laws permitting residents to grow and use marijuana with a doctor’s permission. Six of the states fall under the jurisdiction of the Ninth Circuit Court of Appeals.  

Although California’s medical marijuana law is not jeopardized by the case, should the high court reverse the Ninth Circuit’s ruling, federal agents would again be free to prosecute state residents who cultivate marijuana for personal medicinal consumption. A vote to uphold the ruling would likely bar the Justice Department from fully enforcing federal drug laws in any state that allows for medical marijuana. 

“There’s so much at stake,” said Angel Raich, a 38-year-old mother of two teenagers. “I’m nervous that if I go before the Supreme Court and lose, it could mean my life.”  

Raich says she suffers from an inoperable brain tumor and a myriad of other ailments and insists that without a daily supply of marijuana she would lose her appetite and could die from uncontrolled weight loss. “Cannabis is my lifeline,” she said. 

Federal agents never raided her home, but Raich filed suit as a preemptive measure, along with Monson, who lost her six cannabis plants in a 2002 federal sting. 

Monson said she would have preferred the Supreme Court to have refused to hear the government’s appeal. Had the court done so, the Ninth Circuit ruling would have remained law in California. 

Medical cannabis advocates have not fared well before the high court. In 2001 the court rejected the argument of the Oakland Cannabis Buyers Club that the club was immune from federal interference because it was providing “a medical necessity.” 

Now medical cannabis advocates, often identified politically with the far left, are resting their hopes on recent precedents from the court’s conservative majority that have curtailed Congress’s ability to pass laws based its power to regulate commerce between states. 

After decades of taking a relatively broad view of Congressional power over items only slightly related to interstate commerce, the current court has narrowed Congress’ purview. 

In 1995, by a 5-4 vote, the court overturned a state law that forbade the possession of guns near school buildings. And in 2000, by an identical vote, the court overturned a 1994 state law that authorized the victims of gender-motivated violence to file suit against their aggressors for damages in federal court.  

“The Supreme Court will have to overturn its own precedents in 1995 and 2000 [to side with the Justice Department],” said Randy Barnett, a Boston University Law professor who is representing the two women on behalf of the Marijuana Policy Project. 

David Raich, Angel Raich’s husband and an attorney on her legal team, said he believed the court had opted to hear the case partly in deference to the request from the Justice Department and partly to clarify and strengthen its recent precedents. 

Hastings School of Law Professor Marsha Cohen, however, thought the high court’s decision didn’t bode well for medical cannabis advocates. 

“It’s going to be an uphill battle,” said Cohen, who specializes in pharmaceutical and medical cannabis law. “The court has given the Controlled Substance Act broad interstate reach and not allowed states to circumvent it.” 

Cohen said when it comes to regulating drugs like marijuana, federal courts have sided with the Justice Department because of the difficulty in regulating controlled substances nationally when states have weaker laws. 

It is unknown if the Supreme Court’s ruling will apply to cannabis dispensaries as well. Earlier this year a federal district court judge barred the Justice Department from raiding or prosecuting the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz after a 2002 raid. 

In Berkeley, licensed medical marijuana users are allowed to grow up to ten plants. An initiative on the November ballot would erase all plant limits for city residents and take the unprecedented step of requiring the city to dispense marijuana to patients if federal authorities cracked down on the city’s cooperative dispensaries.ª