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Seven years after California voters opened the door to medical marijuana, the Supreme Court is now being asked to decide whether doctors should be allowed to recommend the drug to patients. Walters v. Conant, No. 03-40, is one of dozens of cases the Supreme Court will likely consider at its private conference on Oct 10. The litigation stems from Proposition 215, a statewide ballot initiative approved by voters in 1996. Proposition 215 gave patients the right to seek physician-sanctioned marijuana, but the U.S. government objected � citing federal laws that restrict the use of marijuana. In 1997, a group of physicians and patients sued the feds, trying to stop the government from revoking the prescription licenses of doctors who recommend marijuana as treatment. In August 1999, U.S. District Judge William Alsup of the Northern District of California entered a permanent injunction against government enforcement of the rule against doctors. A panel of the U.S. Court of Appeals for the 9th Circuit, in a ruling written by Chief Judge Mary Schroeder, affirmed the injunction in October 2002. At the Supreme Court, John Walters, director of the White House Office of National Drug Control Policy, is the named appellant in the case. In his petition on behalf of Walters, Solicitor General Theodore Olson argues that the 9th Circuit’s decision restricts the government’s ability to investigate possible violations of the law. “[The decision] impairs the Executive’s authority to enforce the law in an area vital to the public health and safety,” Olson wrote in the petition. “The practice of medicine is subject to reasonable licensing and regulation, even where that practice involves speech.” Dr. Marcus Conant, medical director of a private HIV/AIDS practice in San Francisco, asserts that doctors have First Amendment rights to openly discuss with their patients the risks and benefits of using marijuana to relieve symptoms of diseases such as AIDS, glaucoma, and multiple sclerosis. “This case concerns the distribution of medical information, not distribution of drugs,” wrote Conant’s lawyer Graham Boyd in a brief opposing high court review. Boyd is director of the American Civil Liberties Union’s Drug Policy Litigation Project. “Patients are free to follow or ignore the advice, but the advice itself does not authorize or cause the distribution of a drug.” Olson’s brief counters,”It is beyond dispute that a physician’s recommendation that a patient take Schedule I controlled substances such as heroin or LSD would . . . justify investigation and potential revocation of the physician’s registration. There is no statutory or First Amendment basis for treating marijuana, another Schedule I substance, differently.” Attorneys for Conant say review by the Supreme Court is unnecessary because the District Court’s decision does not infringe on federal statutes that prohibit selling marijuana, and the decision creates no conflict among the circuits. “This is a unique case that arises out of the federal government’s response to California’s law,” Boyd wrote. “No disagreement exists among the courts of appeals on the issues raised in the case, and no disagreement appears likely to emerge in the future.” Seven states besides California � Alaska, Arizona, Colorado, Maine, Nevada, Oregon, and Washington � have enacted similar medical marijuana laws by voter initiative. OTHER CASES UP FOR REVIEWHernandez v. Crawford Building Material Co., No. 02-1717. Employment discrimination and retaliation; employer’s counterclaim against employee after employee’s discharge. • Espinoza v. United States, No. 02-1762. Whether prosecution for mailing threatening communications requires a specific intent to threaten. • Biddle Street Bistro Inc. v. TLJ Co., No. 02-1791. Requirement of signature on notice of appeal for federal court of appeals to have jurisdiction. • United States v. Flores-Montano, No. 02-1794. Reasonable suspicion requirement for search and seizure by customs officers at international borders. • Arizona v. Pandeli, No. 03-15. Whether death penalty cases require jury determination of mitigating as well as aggravating factors under Ring v. Arizona.Krilich v. United States, No. 03-16. District court’s authority to consider physical condition of defendant at resentencing. • Sabri v. United States, No. 03-44. Criminality of acts of bribery lacking connection to federal funds. • Vytra Healthcare v. Cicio, No. 03-69. Whether the Employee Retirement Income Security Act pre-empts state law medical malpractice action. • Doe v. Reiger, No. 03-174. Whether social worker’s warrantless removal of children from parents violates the Fourth and 14th amendments. • Aurora National Life Assurance Co. v. Sierra National Insurance Holdings Inc., No. 03-187. Appellate jurisdiction, collateral order rule, consideration of standing. • Ashcroft v. American Civil Liberties Union, No. 03-218. Whether the Child Online Protection Act violates the First Amendment free speech clause. • Bay Ocean Management Inc. v. Steel Coils Inc., No. 03-232. Vessel manager’s liability in tort for cargo damage under the Carriage of Goods by Sea Act. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the petitioner in Krilich v. United States, No. 03-16, and Sabri v. United States, No. 03-44.

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