Posted May 14, 2001
See
The Orange County Register Editorial Page
Does the Best Job of Explaining the Significance of the Supreme Court’s Ruling on the
Oakland Case.
and
Feds Seek Emergency Stay from Supreme
Court In Oakland Case. Does Arbitrary Power Trump Fundamental Rights? These Jackboots Are
Made For Stomping on the Sick and Dying.
and
Supreme Court Grants Emergency Stay
Against Oakland CBC. Arbitrary Power Trumps Basic Rights.
(MarijuanaNews note: Again, there are things that we could not make
up.

This decision was unanimous, but three of the Justices did not like some of the
ruling, so five Justices made up the majority ruling for the Court. [Justice Breyer
recused himself, because his brother was involved in the case in California.]

Any of these five could have written the opinion, but it was written by
Clarence Thomas, the one Court member who has acknowledged smoking marijuana – when
he was at Yale Law School. Bush the First, who nominated him to the Court, said that that
“experimentation” should not disqualify him from the job, and I agree. But it is
sadly all too clear that even the appearance of justice means nothing in the endless
hypocrisy of the Drug War. Thomas need not have recused himself from this ruling, but
surely he did not have to write it.

Supreme Court cases are generally very difficult for a layperson to understand.
They depend on precedents that are obscure and interpretations that are often very
technical.

The simplest description of what happened here is that 8 judges in Washington
– The US Supreme Court, disagreed with a large panel of judges on the West Coast
– the 9th Circuit of the US Court of Appeals.
See
Major Victory For Medical Marijuana: 9th
Circuit Ruling Allows Patients To Argue Before U.S. District Judge That Their Medical
Marijuana Use Is A Fundamental Right.

More precisely, the Supreme Court ruled that the Drug War depends upon the continued
suppression of medical marijuana. “(W)e have no doubt that the Controlled Substances
Act cannot bear a medical necessity defense to distributions of marijuana.” This was
the position of the Federal government and the argument prevailed.

“Necessity” defenses are very simple in concept and based on ancient
traditions of “Common Law,” the unwritten laws of the Anglo-Saxons and their
heirs. If a person has no choice but to break a law to prevent a greater harm, then such
actions are not criminal.

In practice, they can present some very complex questions. However, in this
case, the question was simply whether such a “necessity” exemption would apply
to the suppliers of medical marijuana under narrowly defined circumstances, to wit, that
there was no reasonable alternative and the patient would suffer imminent harm, possibly
even death.

As you will see, the Justices just said no. The arbitrary power of the Congress
takes precedent over this basic right. However, the Court said, “It is clear
from the text of the Act that Congress has made a determination that marijuana has no
medical benefits worthy of an exception. The statute expressly contemplates that many
drugs “have a useful and legitimate medical purpose and are necessary to maintain the
health and general welfare of the American people,” but it includes no exception
at all for any medical use of marijuana.

Unwilling to view this omission as an accident, and unable in any event to
override a legislative determination manifest in a statute, we reject the
Cooperative’s argument….”

Of course, this “omission” was not an “accident.” It was a
very deliberate act, like the Fugitive Slave Acts, and Robert Raich, one of the attorneys
for the Oakland CBC compared today’s ruling to the notorious Dred Scott case. In the
19th Century the Court and Congress held that slaves had to be returned to
their “owners.” Today the Court would not confront the fact that the
Congressional “determination” was not based on a good faith examination of the
evidence, but rather a refusal to allow any such review.
See
The
Congressional Record On The House Medical Marijuana Debate Requires Powerful Anti-Emetics
and links

Lest it be thought that the court was being asked to do something strange
consider the ruling of a Canadian court on a similar case.
See
A Great Day For Medical Marijuana And
Canadian Justice – Buyer For BC Compassion Club Gets Suspended Sentence for
Possession of 13 Pounds — Special to MarijuanaNews

The judge in that case said, “Some patients will have to get their
medical marijuana from some kind of retail outlet… The pharmacy in this case, known
to and tolerated by the police, is the Compassion Club Society. Marijuana will not fall
into its hands as manna from heaven.”

And remember that the Canadian courts have ruled — and
the Canadian government has acknowledged — that there is a necessity right for Canadians
to have medical marijuana.
See
Canadian Court Says Lack of Provision for
Medical Marijuana Violates Fundamental Rights; Gives Parliament 12 Months to Fix Marijuana
Prohibition — Or There Will Be No Marijuana Laws in Canada.
and
We Are Winning! Swiss to Legalize
Possession. Canada Will Not Appeal Court Ruling Requiring Medical Marijuana.

In short, the Court has ruled that the Congress can block a medical necessity
defense by not explicitly providing for one. More disturbingly, the majority of the Court
went even further and suggested that the medical defense would not even be available to
individual users of medical cannabis. This provoked three of the Justices to issue a
“concurring” opinion in which they agree that medical necessity does not apply
to the distributors, so the marijuana will have to come like manna from heaven, but they
still insist that the patients have a right to manna.

The good news is that the conservative majority did leave open the possibility
of a States’ Rights argument and we should expect that the California attorneys,
probably supported by the California Attorney General to make such an argument.

The California AG made such an argument in his Amicus brief in this case, but
because the 9th Circuit Ruling did not deal with this point the Supremes ducked
it.
See
California Attorney General Supports
Medical Marijuana in Oakland CBC Supreme Court Case. Other Medical Marijuana States’
AGs Betray the Sick and Dying.

There is also some possible good and bad news for our friends, Rene Bojee and
Todd McCormick. This ruling is so much at variance with Canadian law that it makes it less
likely that the Canadian government will deport Renee. On the other hand, it probably
means that Todd will not get an appeal and he may have to remain in Federal prison until
the end of next year.
See
Todd McCormick Denied Appeal Until After
the Supreme Court Rules on Oakland CBC Case.

Finally, it is important to note that the ruling today does not negate the various state
medical marijuana laws, but it makes it very unlikely that states will get directly
involved in medical marijuana distribution, as has been suggested in Maine. Nor does it
necessarily mean that the Feds will close the numerous buyers clubs. They probably will,
because the new Bush team is bloody minded, but they do not need the very bad publicity
that such an action would provoke.
See
The Narking of America: The Bush Team for
Total War, or Just to Keep the Lid On.

On the whole we are worse off for this ruling, but we are still winning
politically.

Below are excerpts from the ruling and the concurring opinions. They full
rulings are available on line as noted at the end.)
Excerpts from UNITED STATES, PETITIONER v. OAKLAND CANNABIS
BUYERS’ COOPERATIVE and JEFFREY JONES
“Justice Thomas delivered the opinion of the Court.”

“The Controlled Substances Act, 84 Stat. 1242,
HREF=”http://www.law.cornell.edu/uscode/21/801.shtml”>21 U.S.C. § 801 et seq.,
prohibits the manufacture and distribution of various drugs, including marijuana. In this
case, we must decide whether there is a medical necessity exception to these prohibitions.
We hold that there is not.”

In November 1996, California voters enacted an initiative measure entitled the
Compassionate Use Act of 1996. Attempting “[t]o ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes,” Cal.
Health & Safety Code Ann. §11362.5 (West Supp. 2001), the statute creates an
exception to California laws prohibiting the possession and cultivation of
marijuana….

In January 1998, the United States sued the Cooperative and its executive
director, respondent Jeffrey Jones (together, the Cooperative), in the United States
District Court for the Northern District of California. Seeking to enjoin the Cooperative
from distributing and manufacturing marijuana, the United States argued that,
COLOR=”#ff0000″>whether or not the Cooperative’s activities are legal under
California law, they violate federal law. Specifically, the Government argued that the
Cooperative violated the Controlled Substances Act’s prohibitions on distributing,
manufacturing, and possessing with the intent to distribute or manufacture a controlled
substance. 21 U.S.C. §
841(a)….

Concluding that the Government had established a probability of success on the
merits, the District Court granted a preliminary injunction. App. to Pet. for Cert.
39a—40a, 5 F. Supp. 2d, at 1105….

Although recognizing that “human suffering” could result, the
District Court reasoned that a court’s “equitable powers [do] not permit it to
ignore federal law.” Ibid. Three days later, the District Court
summarily rejected a motion by the Cooperative to modify the injunction to permit
distributions that are medically necessary….

The denial of the Cooperative’s motion to modify the injunction, however,
presented a live controversy that was appealable under
HREF=”http://www.law.cornell.edu/uscode/28/1292.shtml”>28 U.S.C. § 1292(a)(1).
Reaching the merits of this issue, the Court of Appeals reversed and remanded. According
to the Court of Appeals, the medical necessity defense was a “legally cognizable
defense” that likely would apply in the circumstances….

Following these instructions, the District Court granted the Cooperative’s
motion to modify the injunction to incorporate a medical necessity defense. The United
States petitioned for certiorari to review the Court of Appeals’ decision that
medical necessity is a legally cognizable defense to violations of the Controlled
Substances Act. Because the decision raises significant questions as
to the ability of the United States to enforce the Nation’s drug laws, we granted
certiorari. 531
U.S. 1010 (2000)….

The Cooperative contends, however, that notwithstanding the apparently absolute
language of §841(a), the statute is subject to additional, implied exceptions, one of
which is medical necessity. According to the Cooperative, because
necessity was a defense at common law, medical necessity should be read into the
Controlled Substances Act. We disagree….

As an initial matter, we note that it is an open question whether federal
courts ever have authority to recognize a necessity defense not provided by statute. A
necessity defense “traditionally covered the situation where physical forces beyond
the actor’s control rendered illegal conduct the lesser of two evils.”…

As we have stated: “Whether, as a policy matter, an
exemption should be created is a question for legislative judgment, not judicial
inference.” United States v. Rutherford,
HREF=”http://supct.law.cornell.edu/cgi-bin/sup-choice.cgi?442+544″>442 U.S. 544, 559
(1979). Nonetheless, we recognize that this Court has discussed the possibility of a
necessity defense without altogether rejecting it….

We need not decide, however, whether necessity can ever be a defense when the
federal statute does not expressly provide for it. In this case, to resolve the question
presented, we need only recognize that a medical necessity exception for marijuana is at
odds with the terms of the Controlled Substances Act. The statute, to be sure, does not
explicitly abrogate the defense. But its provisions leave no doubt that the defense is
unavailable.

Under any conception of legal necessity, one principle is clear: The defense
cannot succeed when the legislature itself has made a “determination of
values.”…

In the case of the Controlled Substances Act, the statute
reflects a determination that marijuana has no medical benefits worthy of an exception
(outside the confines of a Government-approved research project). Whereas some other drugs
can be dispensed and prescribed for medical use, see
HREF=”http://www.law.cornell.edu/uscode/21/829.shtml”>21 U.S.C. § 829 the same is not
true for marijuana. Indeed, for purposes of the Controlled
Substances Act, marijuana has “no currently accepted medical use” at all….

It is clear from the text of the Act that Congress has made a determination
that marijuana has no medical benefits worthy of an exception. The statute
expressly contemplates that many drugs “have a useful and legitimate medical purpose
and are necessary to maintain the health and general welfare of the American people,”
but it includes no exception at all for any medical use of marijuana.
COLOR=”#ff0000″>Unwilling to view this omission as an accident, and unable in any
event to override a legislative determination manifest in a statute, we reject the
Cooperative’s argument….

Because we have no doubt that the Controlled Substances Act cannot bear a
medical necessity defense to distributions of marijuana, we do not find guidance in this
avoidance principle. Nor do we consider the underlying constitutional issues today. Because
the Court of Appeals did not address these claims, we decline to do so in the first
instance.

For these reasons, we hold that medical necessity is not
a defense to manufacturing and distributing marijuana. The Court of Appeals erred when it
held that medical necessity is a “legally cognizable defense.”…

In this case, the Court of Appeals erred by considering relevant the evidence
that some people have “serious medical conditions for whom the use of cannabis is
necessary in order to treat or alleviate those conditions or their symptoms,” that
these people “will suffer serious harm if they are denied cannabis,” and that
“there is no legal alternative to cannabis for the effective treatment of their
medical conditions.”

As explained above, in the Controlled Substances Act, the balance already has
been struck against a medical necessity exception. Because the statutory prohibitions
cover even those who have what could be termed a medical necessity, the Act precludes
consideration of this evidence. It was thus error for the Court of Appeals to instruct the
District Court on remand to consider “the criteria for a medical necessity exemption,
and, should it modify the injunction, to set forth those criteria in the modification
order.”

* * *

The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.

It is so ordered….

Notes (excerpts)

2. The amended preliminary injunction reaffirmed that the Cooperative is
generally enjoined from manufacturing, distributing, and possessing with the intent to
manufacture or distribute marijuana, but it carved out an exception for cases of medical
necessity. Specifically, the District Court ordered that “[t]he foregoing injunction
does not apply to the distribution of cannabis by [the Cooperative] to patient-members who
(1) suffer from a serious medical condition, (2) will suffer imminent harm if the
patient-member does not have access to cannabis, (3) need cannabis for the treatment of
the patient-member’s medical condition, or need cannabis to alleviate the medical
condition or symptoms associated with the medical condition, and (4) have no reasonable
legal alternative to cannabis for the effective treatment or alleviation of the
patient-member’s medical condition or symptoms associated with the medical condition
because the patient-member has tried all other legal alternatives to cannabis and the
alternatives have been ineffective in treating or alleviating the patient-member’s
medical condition or symptoms associated with the medical condition, or the alternatives
result in side effects which the patient-member cannot reasonably tolerate.” App. to
Pet. for Cert. 16a—17a.

It was not argued, and so there was no occasion to consider, whether the
statute might be unable to bear any necessity defense at all. And although the Court noted
that Congress “legislates against a background of Anglo-Saxon common law” and
thus “may” have contemplated a necessity defense, the Court refused to
“balanc[e] [the] harms,” explaining that “we are construing an Act of
Congress, not drafting it.” Id., at 415, n. 11.

4. We reject the Cooperative’s intimation that elimination of the defense
requires an “explici[t]” statement. Brief for Respondents 21. Considering that
we have never held necessity to be a viable justification for violating a federal statute,
see supra, at 5—6, and n. 3, and that such a defense would entail a social
balancing that is better left to Congress, we decline to set the bar so high….

6. The Government argues that the 1998 “sense of the Congress”
resolution, 112 Stat. 2681—760 to 2681—761, supports its position that Congress
has foreclosed the medical necessity defense. Entitled “Not Legalizing Marijuana for
Medicinal Use,” the resolution declares that “Congress continues to support the
existing Federal legal process for determining the safety and efficacy of drugs and
opposes efforts to circumvent this process by legalizing marijuana, and other Schedule I
drugs, for medicinal use without valid scientific evidence and the approval of the Food
and Drug Administration.”

Because we conclude that the Controlled Substances Act cannot sustain the
medical necessity defense, we need not consider whether the 1998 “sense of the
Congress resolution” is additional evidence of a legislative determination to
eliminate the defense.

7. Lest there be any confusion, we clarify that
nothing in our analysis, or the statute, suggests that a distinction should be drawn
between the prohibitions on manufacturing and distributing and the other prohibitions in
the Controlled Substances Act. Furthermore, the very point of our
holding is that there is no medical necessity exception to the prohibitions at issue, even
when the patient is “seriously ill” and lacks alternative avenues for relief. Indeed,
it is the Cooperative’s argument that its patients are “seriously ill,”
see, e.g., Brief for Respondents 11, 13, 17, and lacking “alternatives,”
see, e.g., id., at 13. We reject the argument that these factors warrant a
medical necessity exception. If we did not, we would be affirming instead of reversing the
Court of Appeals. Finally, we share Justice Stevens’ concern
for “showing respect for the sovereign States that comprise our Federal Union.”

Nor are we passing today on a constitutional question, such as whether the
Controlled Substances Act exceeds Congress’ power under the Commerce Clause.

8. Notwithstanding Justice Stevens’ concerns, post, at 4, it is
appropriate for us to address this issue because this case arises from a motion to modify
the injunction, because the Court of Appeals held that the District Court misconstrued its
equitable discretion, and because the Cooperative offers this conclusion as an alternative
ground for affirmance.

Supreme Court concurring in the judgment.

Justice Stevens, with whom Justice Souter and Justice Ginsburg join, concurring
in the judgment.
(MarijuanaNews note: Dicta are defined “as a judge’s
expressions of opinion on a point other than the precise issue involved in determining a
case.” The three did not like the dicta on individual necessity rights. However, it
is good clue that it would be a waste of money for us to use that argument!)

Lest the Court’s narrow holding be lost in its broad dicta,
let me restate it here: “[W]e hold that medical necessity is
not a defense to manufacturing and distributing marijuana.” Ante,
at 10 (emphasis added). This confined holding is consistent with our grant of certiorari,
which was limited to the question “[w]hether the Controlled Substances Act,
forecloses a medical necessity defense to the Act’s prohibition against manufacturing
and distributing marijuana, a Schedule I controlled substance.” Pet. for Cert.
(I) (emphasis added). And, at least with respect to distribution, this holding is
consistent with how the issue was raised and litigated below. As stated by the District
Court, the question before it was “whether [respondents’] admitted distribution
of marijuana for use by seriously ill persons upon a physician’s recommendation
violates federal law,” and if so, whether such distribution “should be enjoined
pursuant to the injunctive relief provisions of the federal Controlled Substances
Act.” United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086,
1091 (ND Cal. 1998) (emphasis added).

Accordingly, in the lower courts as well as here, respondents have raised the
medical necessity defense as a justification for distributing marijuana to cooperative
members, and it was in that context that the Ninth Circuit determined that respondents had
“a legally cognizable defense.” 190 F.3d 1109, 1114 (1999). The Court is surely
correct to reverse that determination. Congress’ classification
of marijuana as a schedule I controlled substance–that is, one that cannot be
distributed outside of approved research projects, makes it
clear that “the Controlled Substances Act cannot bear a medical necessity defense to distributions
of marijuana,” ante, at 10 (emphasis added)).

Apart from its limited holding, the Court takes two unwarranted and unfortunate
excursions that prevent me from joining its opinion. First, the
Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the
defense of necessity is unavailable for anyone under the Controlled Substances Act.
Because necessity was raised in this case as a defense to
distribution, the Court need not venture an opinion on whether the defense is available to
anyone other than distributors. Most notably, whether the defense might be
available to a seriously ill patient for whom there is no alternative means of avoiding
starvation or extraordinary suffering is a difficult issue that is not presented here.

Second, the Court gratuitously casts doubt on “whether necessity can ever
be a defense” to any federal statute that does not explicitly provide for it,
calling such a defense into question by a misleading reference to its existence as an
“open question.” Ante, at 5, 6. By contrast, our precedent has
expressed no doubt about the viability of the common-law defense, even in the context of
federal criminal statutes that do not provide for it in so many words….

Indeed, the Court’s comment on the general availability of the necessity
defense is completely unnecessary because the Government has made no such suggestion…

The Court’s opinion on this point is pure dictum.

The overbroad language of the Court’s opinion is especially unfortunate
given the importance of showing respect for the sovereign States that comprise our Federal
Union. That respect imposes a duty on federal courts, whenever possible, to avoid
or minimize conflict between federal and state law, particularly in situations in which
the citizens of a State have chosen to “serve as a laboratory” in the trial of
“novel social and economic experiments without risk to the rest of the
country…”

In my view, this is such a case. By passing Proposition 215, California voters
have decided that seriously ill patients and their primary caregivers should be exempt
from prosecution under state laws for cultivating and possessing marijuana if the
patient’s physician recommends using the drug for treatment. This case does not call
upon the Court to deprive all such patients of the benefit of the necessity defense
to federal prosecution, when the case itself does not involve any such
patients…

An additional point deserves emphasis. This case does not require us to rule on
the scope of the District Court’s discretion to enjoin, or to refuse to enjoin, the
possession of marijuana or other potential violations of the Controlled Substances Act by
a seriously ill patient for whom the drug may be a necessity….

I join the Court’s judgment of reversal because I agree that a distributor
of marijuana does not have a medical necessity defense under the Controlled Substances
Act. I do not, however, join the dicta in the Court’s opinion.

Syllabus:
http://supct.law.cornell.edu/supct/html/00-151.ZS.html

Majority Opinion (Thomas):
http://supct.law.cornell.edu/supct/html/00-151.ZO.html

Concurring Opinion (Stephens):
http://supct.law.cornell.edu/supct/html/00-151.ZC.html

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