Supreme Court accepts medical-marijuana issue

WASHINGTON (AP) _ The Supreme Court took on a medical-marijuana dispute Monday, agreeing to decide whether ``medical necessity'' is a defense to the federal law that makes marijuana distribution

Monday, November 27th 2000, 12:00 am

By: News On 6

WASHINGTON (AP) _ The Supreme Court took on a medical-marijuana dispute Monday, agreeing to decide whether ``medical necessity'' is a defense to the federal law that makes marijuana distribution a crime.

The justices said they will hear the Clinton administration's effort to stop a California group from providing the drug to seriously ill patients for pain relief.

In other cases Monday, the court:

_Agreed to hear an appeal by a condemned killer from Texas whose lawyers say he is mentally retarded and has the reasoning capacity of a 7-year-old. The court said it will use the case of Johnny Paul Penry to clarify how much opportunity jurors in death-penalty cases must have to consider the defendant's mental capacity.

_Said it will use a dispute over health care benefits paid to a man injured in a car accident to clarify whether health plans can sue to enforce some requirements. The court said it will hear a California company's argument that it can sue in federal court to force Robert Ellis to give back his health benefits because he later got payment from another source. Ellis received $561,145 from his insurance company but also settled a claim against those responsibile for the auto crash. His health care plan included a requirement that beneficiaries give back their health payments if they later were reimbursed by another source. But Ellis refused to repay the benefits to the health plan.

_Turned down a challenge by gambling operators in South Carolina to the state's ban on possession of video gambling machines. The court, without comment, rejected operators' argument that the ban _ which took effect in July when the state outlawed video gambling _ amounted to an unlawful government taking of their property without payment.

Congress has decided that marijuana has ``no currently accepted medical use,'' Justice Department lawyers told the justices. A lower court decision allowing the Oakland Cannabis Buyers' Cooperative to distribute the drug ``threatens the government's ability to enforce the federal drug laws,'' government lawyers added.

In August, the Supreme Court put the lower court ruling on hold and barred the California club from distributing marijuana while the government pursued its appeal.

Justice Stephen G. Breyer did not participate in the case. His brother, Charles, a federal trial judge in San Francisco, previously barred distribution of marijuana only to have his decision reversed by a federal appeals court.

Eight states in addition to California have medical-marijuana laws in place or approved by voters: Alaska, Arizona, Hawaii, Maine, Oregon, Washington state, Nevada and Colorado.

California's law, passed by the voters in 1996, authorizes the possession and use of marijuana for medical purposes upon a doctor's recommendation.

The Oakland group said its goal is ``to provide seriously ill patients with safe access to necessary medicine so that these individuals do not have to resort to the streets.''

But the federal Controlled Substances Act includes marijuana among the drugs whose manufacture and distribution are illegal.

In January 1998, the federal government filed a lawsuit against the Oakland club, asking a judge to ban it from providing marijuana.

Judge Charles Breyer ruled for the government. But the 9th U.S. Circuit Court of Appeals reversed, saying the government had not disproven the club's evidence that the drug was ``the only effective treatment for a large group of seriously ill individuals.''

Last May, Breyer ruled the Oakland club could provide marijuana to patients who needed it. The government appealed that ruling to the 9th Circuit, which has not yet ruled.

In the appeal acted on Monday, Justice Department lawyers said the Supreme Court could grant review now because the 9th Circuit court was not expected to change its decision.

That ruling threatens the government's ability to enforce the anti-drug law, Justice Department lawyers said. They said more than two dozen organizations were distributing marijuana for medical purposes in California, Alaska, Hawaii, Oregon and Washington, all in the 9th Circuit.

The Oakland club's lawyers said ``the voters of California have spoken'' in approving the medical-marijuana measure. Congress has not explicitly barred a medical necessity defense against the federal anti-drug law, the lawyers added.

The case is U.S. v. Oakland Cannabis Buyers' Cooperative, 00-151.