October 14, 1999
From The Associated Press
By Bob Egelko, Associated Press Writer

(Marijuananews note: This is a truly major development in that it puts the State of California in opposition to the federal government. For the first, time a California AG is defending the state’s laws, as required by the State Constitution.)

LOCKYER BACKS "NECESSITY" DEFENSE, ASKS FEDS TO DROP OPPOSITION

A federal appeals court decision that could allow some seriously ill patients to use marijuana has won the endorsement of state Attorney General Bill Lockyer, who wants the Clinton administration to drop its objections.

In a letter last week to U.S. Attorney General Janet Reno, made public Thursday by supporters of an AIDS patient who wants to use the drug, Lockyer urged the government not to appeal the precedent-setting Sept. 13 ruling by the 9th U.S. Circuit Court of Appeals. The 3-0 ruling indicated ``medical necessity,'' the need to violate a law to prevent more serious harm, would be a valid defense to the prosecution of a marijuana patient or provider under federal drug laws.
See
Is Lockyer Turning Into Lungren-lite?
Tells Mendocino County Its Plant Limit Is "Excessive." DA Defiant.

"The voters in my state have endorsed the medicinal use of marijuana,'' Lockyer wrote, referring to Proposition 215, the 1996 initiative that allows the cultivation and use of marijuana to treat symptoms of certain serious illnesses, with a doctor's recommendation.

"The court's decision holding that a citizen may present evidence that use of marijuana, under certain narrow conditions, may be a lawful exception to the federal drug laws is consistent with the expression of (the voters') will.''

The letter was dated Oct. 6. U.S. Justice Department spokeswoman Gretchen Michael said Thursday the department hasn't received it yet and hasn't decided whether to seek a rehearing of last month's ruling. Its deadline is in late October.

Lockyer supported Proposition 215 and has said he was influenced by the deaths of his mother and sister from leukemia. He supports a state bill that would set standards for medical use of marijuana and let county health departments issue registration cards to anyone with a doctor's recommendation for the drug.

Lockyer has met with Reno and federal drug chief Barry McCaffrey and urged them, with little apparent success, to ease the federal government's resistance to California's implementation of its initiative.

Since passage of Proposition 215, the Justice Department has repeatedly said marijuana remains banned by federal law, with no medical exception; has threatened to act against doctors who prescribe the drug; and has sued to shut down six Northern California clubs that distribute marijuana to patients.

That lawsuit, which has led to closure of four of the clubs, was the basis of the Sept. 13 ruling. The court ordered a federal judge to reconsider his injunction of last year, which barred marijuana distribution at the clubs, and consider an exemption for patients who face imminent harm and have no effective legal alternative to marijuana. The court said the government has offered nothing to contradict ``evidence that cannabis is the only effective treatment for a large group of seriously ill individuals.''

The ruling, if it stands, would affect four other states in the 9th Circuit -- Arizona, Oregon, Washington and Alaska -- that have laws protecting medical marijuana users against state prosecution.

The ruling has already been invoked by medical marijuana users, including Peter McWilliams, an AIDS and cancer patient whose lawyers said they were asking the appeals court Thursday to let him resume smoking marijuana because his condition is deteriorating.

See
McWilliams To Petition Court To Be Allowed To Use Medical Marijuana
Following Appeals Court Ruling

McWilliams, a writer and publisher, was arrested in Los Angeles in July 1998 and charged by federal authorities with conspiring to grow thousands of marijuana plants, which he said were intended to supply medical marijuana clubs.