Bay Area Reporter - March 30, 2001
Liz Highleyman

The possession and use of medicinal cannabis is permitted under California's Proposition 215, which was passed by voters in 1996. Patients use the herb to relieve loss of appetite related to AIDS, nausea caused by cancer and anti-HIV drugs, and muscle spasms and pain related to multiple sclerosis and other conditions. The law allows for the medicinal use of cannabis with a doctor's recommendation, but did not include provisions for cannabis distribution.

Since Proposition 215 was approved, medical marijuana ballot initiatives have been passed by voters in Alaska, Colorado, Nevada, Oregon, Maine, Washington state and Washington, D.C.; Hawaii has a medicinal cannabis law enacted by the state Legislature. Federal laws prohibit the possession, use, and distribution of marijuana for medical or any other reason.

Yesterday's hearing is the latest skirmish in a four-year battle over whether organizations can sell or otherwise distribute medical marijuana.

In January 1998, the federal government filed a lawsuit against the OCBC and five other California buyers' clubs. Federal Judge Charles Breyer issued a preliminary injunction imposing a ban on cannabis sales. Since that time, the OCBC - which is the only remaining original defendant in the case - has only sold hemp products and maintained its patient database.

In September 1999, the 9th Circuit Court of Appeals reversed Breyer's ruling and instructed him to reconsider the case, recognizing "medical necessity" as a viable defense. The court said that the OCBC had "identified a strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious or fatal illnesses." The court further stated that the federal government had "offered no evidence to rebut evidence that cannabis is the only effective treatment for a large group of seriously ill individuals."

In July 2000, Breyer reversed himself and allowed the OCBC to provide cannabis to patients with proof of medical need. The federal government then filed an emergency petition with the Supreme Court, arguing that Breyer's ruling would "promote disrespect and disregard for an act of Congress that is central to combating illicit drug trafficking." Last August, the high court ruled 7-1 that the Oakland club could not distribute medicinal cannabis while the case was under appeal, and in November agreed to hear the case. Supreme Court Justice Stephen Breyer, the brother of Charles Breyer, has recused himself from the case.

The Supreme Court will not rule directly on the issue of cannabis sales by medical marijuana clubs, but rather on whether medical necessity may be used as a defense against federal drug laws. According to OCBC attorney Robert Raich, "Once the justices recognize what's really at stake in this case, if any semblance of justice prevails then so will we."
010330
BR010319

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