Unlikely allies back state on medical pot

October 13, 2004

Claire Cooper, Sacramento Bee

As final briefs were filed Wednesday in a critical medical marijuana test case, set for argument in the U.S. Supreme Court next month, California got some unlikely allies.

A trio of Southern attorneys general submitted a brief saying that when states decide to let their citizens light up, the federal government should butt out.

'The question presented here is not whether vigorous enforcement of the nation's drug laws is a good criminal policy. It most assuredly is,' says the brief filed by Alabama and joined by Mississippi and Louisiana.

'The question, rather, is whether the Constitution permits the federal government, under the guise of regulating interstate commerce, to criminalize the purely local possession of marijuana for personal medicinal use. It does not.'

Among the states filing the friend-of-the-court brief, only Louisiana permits even the most limited use of marijuana as medicine.

Alabama, which makes about 10,000 arrests each year for marijuana possession, made it clear that it considers California's medical pot law 'profoundly misguided.'

But the states-rights brief said all states have a fundamental right to regulate their citizens' health, safety, welfare and morals, and the federal government should stop interfering.

As expected, California's attorney general, Bill Lockyer, also filed a brief, urging the Supreme Court to leave room for state medical pot laws.

His friend-of-the-court brief, filed Wednesday, was signed by the attorneys general of Maryland and Washington state, which also have medical pot laws.

More surprising, however, was support for the pro-pot side of the case from the conservative Pacific Legal Foundation, which filed a brief earlier on what is viewed as the key legal issue - the scope of the federal government's power to regulate interstate commerce.

Though the Sacramento-based foundation pointedly weighed in on the case 'in support of neither party,' its brief says the federal power should extend only to endeavors that are economic and substantially affect interstate commerce.

Known as Ashcroft v. Raich, the case was initiated by two Northern California medical pot patients, Angel Raich of Oakland and Diane Monson of Oroville.

Monson grows her pot in her small garden. Raich receives hers from two anonymous grower-caregivers, also parties in the case, who reportedly scrupulously avoid involvement with commercial drug traffic.

The 9th U.S. Circuit Court of Appeals ruled in the plaintiffs' favor, saying their activity appeared to be noncommercial and, therefore, probably was beyond the federal government's legal reach.

The court directed a judge to enjoin U.S. Attorney General John Ashcroft and other federal agents from interfering with Raich's and Monson's pot supplies.

If the Supreme Court upholds the ruling, it could provide a blueprint for state-sanctioned medical marijuana operations that have been plagued by federal raids, arrests and seizures of drugs and other assets.

The federal government outlined its legal position when it filed its brief two months ago.

The brief argues that even purely local marijuana possession and distribution directly affect the nation's $10.5 billion-a-year illegal pot market.

It cites the flat ban on marijuana in the 1970 U.S. Controlled Substances Act and argues that in passing the law, Congress determined that local drugs 'contribute to swelling the interstate (drug) traffic.'

Lockyer's brief takes on that argument. It says the federal statute was aimed at hard-core narcotics pushers and was enacted 26 years before the first medical pot laws were passed in California and Arizona.

The 1970 Congress 'could not have determined that state-regulated, personal medicinal marijuana usage had an effect on the interstate marijuana trafficking as a whole, because there was no state-regulated medical marijuana program in existence at the time,' the brief says.



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