The New York Times

November 28, 2000

Supreme Court Roundup: Medical Use of Marijuana Is Argued

By LINDA GREENHOUSE

WASHINGTON, Nov. 27 - The Supreme Court agreed today to decide whether "medical necessity" can justify distributing marijuana, in violation of federal law, to people who use it to relieve pain or medical symptoms that cannot be effectively treated by conventional means.

The case is an appeal by the Clinton administration of a federal court ruling in California that adopted the medical necessity defense.

At issue is the future of the dozens of marijuana cooperatives formed over the last few years as voters in a growing list of states have passed initiatives to authorize using marijuana for medical purposes.

The medical necessity defense "runs counter to the absolute ban" on distributing marijuana and is "directly at odds" with federal law, the administration told the court in its appeal of a ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco.

The case is not a criminal prosecution. Rather, it grows out of the government's request three years ago for a federal court injunction to stop the operations of the Oakland Cannabis Buyers' Cooperative, started by the city of Oakland to administer a medical marijuana program under California's Proposition 215. Also known as the Compassionate Use Act of 1996, the measure made it legal in California for seriously ill patients, with a doctor's recommendation, to possess and use marijuana for the relief of pain and other symptoms.

California is one of nine states where voters have adopted similar policies. Six others - Alaska, Arizona, Hawaii, Oregon, Washington, and Nevada, where voters approved a constitutional amendment earlier this month - are also in the Ninth Circuit. The other two states are Maine and Colorado, where an initiative also received voter approval earlier this month.

Tens of thousands of people are thought to be members of marijuana cooperatives similar to the Oakland organization.

Judge Charles R. Breyer, of Federal District Court in San Francisco, initially granted the injunction that the government sought. He is the younger brother of Justice Stephen G. Breyer, who has recused himself from the case, United States v. Oakland Cannabis Buyers' Cooperative, No. 00-151.

In a ruling last year, the Ninth Circuit held that Judge Breyer should have modified the injunction to consider medical necessity and the "strong public interest" in the availability of marijuana for patients whose doctors think they need it.

As a result, Judge Breyer issued a new order in July, noting that the federal government "has still not offered any evidence" to rebut the Oakland cooperative's evidence "that cannabis is medically necessary for a group of seriously ill individuals."

He said the cooperative could continue to supply marijuana to members who suffer from a "serious medical condition," who will suffer "imminent harm" without marijuana, and for whom alternative treatments have been ineffective or have caused intolerable side effects. In August, the Supreme Court granted the federal government's request for a stay of the ruling.

In defending the lower court's ruling, the Oakland group told the justices that "necessity is one of the oldest and most well-entrenched common law defenses in Anglo- American jurisprudence whose roots can be traced to the mid-13th century in England." The group's court brief said that "contrary to the government's contention, recognition of a necessity defense does not undermine the rule of law."

These were some of the other developments at the court today:

Mushroom Growers

Accepting another government appeal, the court agreed to decide the constitutionality of a federal law that requires mushroom producers to pay into an Agriculture Department fund supporting generic advertising to encourage people to eat mushrooms.

Such funds exist for many agricultural commodities, from honey to watermelons to dairy products to pork. Many producers dislike the mandatory assessments and have been challenging the generic advertising as government-compelled commercial speech that violates the First Amendment.

Three years ago, the Supreme Court narrowly rejected a First Amendment challenge to the generic advertising program for California tree fruits, including peaches, plums and nectarines. But in the mushroom case, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, nonetheless found that program unconstitutional in a ruling last year.

The appeals court said that while "the California tree fruit industry is fully collectivized and is no longer a part of a free market," the mushroom industry is essentially unregulated. The assessments and the advertising program represent only the dealings that the producers have with the federal government and cannot be justified as part of a general regulatory approach, the Sixth Circuit said.

In its appeal, United States v. United Foods, No. 00-276, the government told the court that the decision had created uncertainty about the constitutionality of agricultural market programs, which Congress passed in an effort to stabilize and strengthen various commodities.

Benefits Case

The court also agreed to decide whether the federal law governing employee benefit programs allows plan administrators to sue a member for reimbursement of medical expenses once the member has received money, through a lawsuit or settlement, from a person who caused the injuries.

The lower federal courts are in dispute over whether the Employee Retirement Income Security Act permits this kind of suit, even if the benefits plan contains what is known as a subrogation clause providing that a member cannot keep a double-recovery windfall.

In this case, Reynolds Metals Co. v. Ellis, No. 99-1787, the Ninth Circuit refused to enforce the clause. The government, asked by the Supreme Court for its views, said the question was important because "it affects the ability of plan fiduciaries to recoup significant amounts of money on behalf of employee benefit trust funds.