County is balking on medical marijuana

October 31, 2005

Leslie Wolf Branscomb, San Diego Union Tribune

Flouting state law, county supervisors Tuesday refused to implement a program providing identification cards that would help medical marijuana users avoid arrest.

County attorneys warned supervisors that their vote will almost certainly plunge the county into costly and unwinnable litigation.

Their response: Bring it on.

"After spending thousands and thousands of community enhancement dollars to go after gangs and drug dealers, I think it would be tremendous hypocrisy to vote for this," Supervisor Bill Horn said. "I look forward to the lawsuit when it happens."

Supervisors Dianne Jacob and Pam Slater-Price voted with him.

At issue was a staff recommendation to implement a state mandate requiring counties to issue identification cards and keep a registry of medical marijuana users.

Only six counties have implemented the program but San Diego is the first to refuse to participate, state officials said.

"Even though I do understand it's going to cost money, I do believe leadership means doing the right thing," Slater-Price said before voting.

The vote came less than five months after a county grand jury report took supervisors to task for ignoring the wishes of voters who in 1996 approved an initiative allowing for the use of medical marijuana.

Supervisors Greg Cox and Ron Roberts said they voted in favor of establishing the registry only because of the potentially expensive litigation.

"What is before us today is something that I detest," Cox said. "But we do have a legal obligation to move forward with the identification cards."

County Counsel John Sansone said the county probably would be sued soon. He said that likely would result in a court order requiring the county to follow the law.

"If your board asks that we challenge it, we would do that," Sansone told the supervisors. "However, it would be a very, very major uphill struggle."

Sansone said later that he will discuss the legal ramifications of the supervisors' vote with them in closed session Tuesday.

Local medical marijuana advocates reacted with anger.

"That's really outrageous," said Barbara MacKenzie, who formerly ran a medical marijuana resource center in San Diego. "They need to implement because they are required to. It is the law."

Kris Hermes, legal campaign director for Americans for Safe Access, agreed.

"They're still obligated under state law to implement the ID card program," Hermes said.

The Oakland-based nonprofit group, which promotes legal access to marijuana for medicinal purposes, successfully sued the California Highway Patrol to keep its officers from confiscating marijuana from medical users. It also is suing several cities that have passed ordinances banning marijuana dispensaries.

Hermes said he doubts his organization will lead the legal charge against the local decision. He said he believes the state's requirement for an identification registry is flawed because federal authorities can access the names of users, who could then be prosecuted under federal drug laws.

"We will consider legal action in the future once the privacy clause is taken care of," he said.

One patient from Escondido who uses medical marijuana said the flaw cited by Hermes is one reason many people have no interest in applying for an identification card.

"They say they don't want to go after patients, but you can't trust the government," said the 49-year-old, who did not want his name published because he fears being arrested for growing marijuana in his back yard.

"So long as they're going to look at it as something that's not medicine, who wants to identify themselves as a patient?"

In July, the state Department of Health Services conceded the potential for federal drug enforcement agents to obtain the registry. The identification-card program was temporarily suspended.

Eleven days later the program was reinstated, with a caveat that counties should include warnings on the cards telling users they still could be prosecuted under federal laws.

Four counties – Amador, Del Norte, Mendocino and Trinity – participated in a pilot project from May to July, testing the procedures for issuance of the cards.

In August, the state sent a handbook to each county health department, outlining policies and procedures that were developed based on the pilot project.

Marin and Shasta counties have since begun processing applications. Sutter County supervisors opted for the state to implement the program for the county.

The city of San Francisco has been issuing cards to medical marijuana users for several years, but it doesn't keep information that would identify applicants. The county was set to implement the state's policy Monday, but supervisors there voted last night to delay it, because of concerns about preserving the anonymity of patients.

Fifty-six percent of California voters approved Proposition 215 nine years ago. It allows doctors to recommend marijuana to patients to alleviate pain from certain medical conditions. It also allows patients to cultivate and transport the drug.

In 2003, the state Legislature clarified the proposition with another law, Senate Bill 420. It requires counties to issue identification cards to medical marijuana users and maintain a database of them. Counties may recover the expense of the program by charging fees to patients who register.

The cards do not give people permission to use marijuana, but they could serve to protect them from arrest and punishment by state law enforcement, Sansone said.

Federal authorities have indicated repeatedly that they will continue to enforce federal marijuana laws. In June, the U.S. Supreme Court upheld the federal government's power to do so.

Sansone and the supervisors noted the contradiction between federal and state statutes.

"If the state is so convinced of the merits of this program, it should not be forcing counties to do its dirty work," Jacob said.

After the meeting, Horn issued a statement lambasting the Senate measure and equating supervisors' actions with those of the late civil rights leader Rosa Parks.

"Rosa Parks is lying in state and being honored for opposing a bad law," said the statement.

"SB 420 is a bad law. Leadership demands that we oppose it," Horn said.

This isn't the first time supervisors have been criticized for their stand on medical marijuana. The county grand jury took them to task in June.

"The San Diego County Board of Supervisors has been blinded by its prejudices against medical marijuana use and has failed to implement the will of California voters," the report said.

The county's response at the time was that it had no authority over how state and federal laws are enacted.

The same report commended the cities of San Diego and Escondido for developing guidelines for police to evaluate the legitimacy of medical marijuana claims, and praised a San Diego municipal task force for its commitment to implementing the initiative.

San Diego formed a Cannabis Task Force in 2001 to recommend guidelines for patients under Proposition 215, and the council later voted to allow individuals to grow up to 24 plants – four times as much as the state allows for medical marijuana.

The city was also planning to issue identification cards but didn't do so because Senate Bill 420 required counties to do it. In April 2004, the task force called on the county to immediately implement the identification card program.

There is no deadline for issuance of the cards, said Norma Arceo, a spokeswoman for the state Department of Health Services. "Counties will come on board as they get ready," she said. "At this point we have not had any county voting to refuse."

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