April 11, 1999
From The Oregonian
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By Andy E. Barnett, a former prosecutor, is an adjunct scholar at the Cato Institute, a Boston University law professor and author of "The Structure of Liberty: Justice and the Rule of Law."

State marijuana effort provides court strong test case for rights

On Tuesday, the 9^th U.S. Circuit Court of Appeals will help determine the future of the Ninth Amendment when it hears oral argument in the case of Oakland Cannabis Buyers’ Cooperative v. United States.

The amendment, long ignored by the courts, reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

(Marijuananews note: The essence of totalitarian systems is the reverse of this, that whatever is not explicitly permitted is prohibited. That is the essence of the prohibitionist argument against medical marijuana. It has not been approved by the FDA/DEA, therefore the people are prohibited from using it. Notice how the control shifts from the substance to the people. Marijuana prohibition is really just people prohibition.)

Fortunately, the City of Oakland, in a friend-of-the-court brief on behalf of the cooperative, offers the court a "safe and effective" way to revive this provision, a practical way that can be embraced by both liberals and conservatives.

In November 1996, California voters passed the Medical Marijuana Initiative, which allowed patients to grow and use marijuana when a doctor recommended such treatment. The Oakland co-op was one of several dispensaries formed to provide marijuana under the initiative, but the Clinton administration brought suit to shut this experiment down, claiming that even such medical use violates federal law.

Who should win?

The conventional answer argued by the government’s lawyers is that federal law trumps the right declared by the people’s vote and that’s that. Washington wins; the voters of California lose. Next case.

But what about the Ninth Amendment’s protection of unenumerated rights? Oakland’s brief argues that the people have reserved the power to enact popular initiatives. When the people pass an initiative protecting a particular liberty, judges should respect this unenumerated liberty as they would an enumerated right. In other words, the initiative process enables the voters of each state to decide themselves if a liberty is fundamental, rather than leave that decision solely to judges.

While popular initiatives that restrict personal or economic liberties should be given the same constitutional scrutiny as any other state law, in California (Prop 215), Alaska (Prop 8), Arizona (Prop 300), Nevada (Question 9), Oregon (Measure 67) and Washington (Initiative 692) the people decided to protect a liberty.

When deciding whether such a liberty is fundamental, federal judges are required by an appropriate judicial conservatism to respect the people’s judgment. Government can still restrict marijuana use. The language means only the federal government would have the burden of establishing that its current prohibition on medical marijuana is truly "necessary" (which it has yet to do) and showing that such a prohibition is "proper" or within one of its enumerated powers.

Does this mean that, if the people of the states voted to protect the liberty to use recreational drugs, or view child pornography, the courts should defer to their judgment? The simple answer is yes, though it is hard to imagine a successful initiative on behalf of child pornography. And that is one reason why the initiative process is such a practical "conservative" way to identify fundamental unenumerated rights.

Courts have, with rare exception, been reluctant to use the Ninth Amendment in large measure for fear of opening a Pandora’s box of alleged rights. This judicial neglect of the Ninth Amendment could end, however, if the Ninth Circuit simply recognizes the people’s initiative power to designate fundamental liberties, thereby shifting the burden of proof onto the federal government to show that restrictions on liberty are both necessary and proper.

Copyright: 1999 The Oregonian
(Marijuananews note: It is interesting that he makes no mention of the other neglected Amendment, the 10^th, which reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Closure violated the rights of its 2,000 patient-members, the club told a federal appeals court

BY BOB EGELKO
ASSOCIATED PRESS

SAN FRANCISCO—Lawyers for a medical marijuana club told a federal appeals court Tuesday the club shouldn’t have been closed without a jury trial at which patients could show their need for the drug.

The Oakland Cannabis Buyers’ Cooperative was shut down by a federal judge in October in a suit by the Clinton administration, which said any distribution of marijuana violated federal law, despite California’s 1996 medical marijuana initiative.
See
Oakland Club Closed; Likely To Cause "Human Suffering," Admits Judge -- Just Not Enough;
City Council To Consider Distribution 2 Articles
In arguments before the 9^th U.S. Circuit Court of Appeals, the club said the closure violated the rights of its 2,000 patient-members and failed to recognize the legal effect of Oakland’s involvement in the club’s operations.

The city responded to U.S. District Judge Charles Breyer’s original injunction by declaring in August that marijuana club officials were acting as city officers, invoking a federal law that protects state and local officers from liability while enforcing drug laws. But Breyer said the club was violating the drug law, not enforcing it.

Annette Carnegie, a lawyer for the club, attacked Breyer’s closure order on procedural grounds. Before finding the organization in contempt of court for violating his injunction against distributing marijuana, she said, Breyer should have required the government to identify members who received the drug on a particular day and allowed them a jury trial.

If each identified patient can show that marijuana recommended by a doctor was the only way to relieve painful or life-threatening conditions associated with AIDS, cancer and other diseases, the law was not violated and the club should stay open, Carnegie said. Instead, the judge ordered closure after the club admitted it distributed marijuana on the day in question.

(Marijuananews note: This is where a reference to the arguments raised in the Philadelphia Class Action case would be useful. The members of the club are being denied equal protection under the law. Otherwise, the government argues that it has the right to let people die.)
See
The Connection Between The Federal Case And The Kubby Case:
The Oakland Model Is Based On The Federal Government’s Own Medical Marijuana Program;
Steve Kubby Based His Level Of Marijuana Cultivation On Oakland’s
and
Plaintiffs In Class Action File Motion To Reconsider
The Fundamental Constitutional Rights Basis For Case

Carnegie’s argument, if accepted, would offer a potential defense to any marijuana club targeted by the government. The Clinton administration sued six Northern California clubs in 1997, saying the absolute federal ban on marijuana distribution overrode the state’s attempt in Proposition 215 to legalize medical use of the drug.

Two of the six clubs, in Fairfax and Ukiah, remain open, along with informal organizations in about a half-dozen communities in the state. The Oakland cooperative reopened in November as a center for hemp products and patient support, but Breyer authorized federal marshals to close it again if they hear allegations of marijuana distribution.

Justice Department lawyer Mark Stern defended the closure order, saying the club was asking the court to "rewrite the Controlled Substances Act based on very sincere and deeply held beliefs that Congress was wrong and the attorney general should reclassify" marijuana. Courts have no such authority, he said.

Stern said there was no legal or constitutional right to distribute marijuana and no authority for a claim of medical necessity, since Congress has declared marijuana has no medical use.

(Marijuananews note: That is not correct. The Congress voted in a non-binding resolution that it has no medical use. Rescheduling would not take an act of Congress. The Justice Department is lying to the court. Well, they lie to the rest of us...)
See
The Congressional Record On The House Medical Marijuana Debate
Requires Powerful Anti-Emetics
and
How The IOM Report Impacts The Move To Have Medical Marijuana Rescheduled
and links

Reinhardt sarcastically summed up the Justice Department’s position by saying, "We don’t know who they are but we’ll just find them guilty because we’re the government."

The panel gave no clear indication of its views on Breyer’s closure order, however.

Gerald Uelmen, a Santa Clara University law professor also representing the club, said Breyer should have honored Oakland’s decision to designate club officials as city agents enforcing a local health ordinance.

"States and local governments have the primary responsibility of protecting the health and welfare of their citizens," Uelmen said. Unless the club is granted the same legal protection as narcotics officers are given in undercover drug sales, he said, the federal law immunizing state and local agents is meaningless.