The 9th U.S. Circuit Court of Appeals last month told a federal judge to rethink his order of last year that closed down some Northern California medical marijuana clubs, and consider an exemption for patients who face imminent harm without the drug and have no effective legal alternative.
California Attorney General Bill Lockyer, who has vowed to uphold a successful state initiative allowing patients to use pot, had asked the Justice Department not to appeal the ruling.
"They're real scared of this decision. They want to slow it down," said William Panzer, an attorney for a pot club in Marin County. "It really calls into question a lot of the government's policies."
Robert Raich, attorney for the Oakland Cannabis Buyers' Cooperative, criticized the Clinton administration.
"I think this shows how the Clinton administration is simply trying to appear to be tough on drugs to combat Bill Clinton's comment in 1991 that he didn't inhale, even if it means Californians are going to needlessly suffer," said Raich, referring to Clinton's comment that he smoked marijuana but did not inhale.
Federal prosecutors have repeatedly argued that Congress has declared pot to be among the most dangerous controlled substances and has no medical purpose, thus invalidating the medical necessity argument the court said should be considered.
"A court may not, under the rubric of `medical necessity' set aside that judgment, re-balance the factors already weighed by Congress, and conclude that the public interest exempts a class of persons from federal law," they wrote in their petition.
"The doctrine of `necessity' does not permit a court to prospectively license a class of persons to violate federal law and undermine the comprehensive statutory scheme for controlling illegal drugs," prosecutors said.
In its ruling, a three-judge panel from the 9th Circuit said the government has offered nothing to contradict "evidence that cannabis is the only effective treatment for a large group of seriously ill individuals." Prosecutors now want an 11-judge panel to reconsider that ruling.
If it stands, it would affect California and four other states in the 9th Circuit Arizona, Oregon, Washington and Alaska that have laws protecting medical marijuana users against state prosecution.
After Californians approved a medical marijuana initiative in 1996, the U.S. Justice Department sued six Northern California pot clubs, saying the absolute federal ban on marijuana distribution overrode Proposition 215.
Three of the clubs closed last year after U.S. District Judge Charles Breyer issued his injunction against marijuana distribution. Two, in Fairfax and Ukiah, have remained open because of a lack of evidence that they werviolating the injunction.
The sixth, in Oakland, was held in contempt of court by Breyer and ordered to close, despite the city's attempt to preserve it by declaring a health emergency and designating club officials as city agents. It has reopened for hemp distribution and patient support.
In its ruling last month, the appeals court did not order Breyer to allow the sickest patients to use pot, but said it would be justified by evidence he has heard from seriously ill patients and their doctors.
If Breyer reverses his ruling, some of the clubs could reopen, at least for the most seriously ill. They could, however, still face prosecution under state drug-distribution laws.
The initiative allows patients with serious illnesses to obtain and use marijuana at their doctors' recommendation without being prosecuted under state law. The drug is used to relieve pain and other effects of AIDS, cancer and certain other diseases and their treatments.
"Obviously, Attorney General Lockyer respects the decision of Janet Reno in this matter, but he did believe that the Ninth Circuit's ruling was well thought out and reasonable in terms of the narrow application of the medical exception to ensure access to this medicine," said Lockyer's spokesman, Nathan Barankin.