County to sue state over medical marijuana laws

November 08, 2005

Gig Conaughton, North County Times

SAN DIEGO ---- County supervisors voted in closed session Tuesday to sue the state of California over its medical marijuana laws, saying the regulations should be pre-empted by federal law that makes all marijuana use illegal.

The board's decision came just a week after supervisors voted 3-2 to make San Diego County the only one in California to defy a state order to create a registry and identification cards for terminally and chronically ill people who use marijuana for pain.

It also came just hours after a handful of people who use medicinal marijuana blasted the supervisors for "increasing suffering and threatening the democratic process."

"Your refusal to implement this (ID card) program harms patients and leaves the community confused," a medical marijuana user, Barbara MacKenzie, told the supervisors. "As our elected officials, you're required to follow the law."

California voters approved Proposition 215, the "Compassionate Use" act in 1996, giving seriously ill people who have a doctor's prescription the right to use marijuana to ease pain.

But San Diego County supervisors have repeatedly disparaged the law over the years. A week ago, the board voted 3-2, with Supervisors Ron Roberts and Greg Cox dissenting, to ignore the ID card order on the grounds that it would be telling children that marijuana was OK, and that drug abuse could increase. In August, the county's grand jury criticized the supervisors, saying the board and its staff had "done absolutely nothing" to help implement Prop. 215 in the nine years since its passage ---- a criticism that supervisors ignored.

Late Tuesday afternoon, county attorney John Sansone said the supervisors voted 4-0, with Supervisor Ron Roberts absent, to actually sue the state over its medical marijuana laws.

Supervisors referred all questions Tuesday to Sansone.

Sansone, meanwhile, said the initial intent of the county suit ---- which he said the county planned to file in federal court within the month ---- would be to overturn the state's registry and identification card law.

But he said supervisors also directed him to research an assault to toss out the Compassionate Use law.

Sansone said it was likely that both suits would end up before the U.S. Supreme Court because of the content, and the tricky, complicated issue of pre-emptive law ---- questions involving the pitting one sovereign government's laws, the states, against another's, the federal government.

Sansone told supervisors a week ago that he didn't think they could win a court fight when they voted 3-2 to defy the ID card order.

On Tuesday, he said: "It is certainly a legitimate argument that the county Board of Supervisors have. I think they understand this is not an easy case. We're going to do our best. Ultimately, a court will decide."

Sansone praised supervisors, saying they could have simply defied the ID card law and waited to see if the state took them to court.

"Instead," he said, "they're going to take on the initiative, and, in fact, challenge the law."

But those who criticized supervisors at Tuesday's meeting had different feelings about the Compassionate Use act and the county's authority to challenge it.

"The state Constitution ... requires all state officials to enforce only state law," Claudia Little said. "Federal law does not trump state law. Prop. 215 was passed by a wide majority of Californians, and numerous polls have showed that people around the country and California support this. The public is way out ahead of our politicians here."

The U.S. Food and Drug Administration still lists marijuana as a "class 1" drug, along with morphine, heroin, cocaine and other dangerous narcotics.

But the FDA has also allowed the active ingredient of marijuana ---- tetrahydrocannabinol, or "THC" ---- to be sold as a prescription drug ---- as long as it is synthetically produced rather than grown.

Medical marijuana proponents say that distinction is hypocritical and is still in effect to protect big pharmaceutical companies that could lose hundreds of millions of dollars if people were allowed to use legally grown marijuana as medicine.

Little, who said she was a "mother, grandmother, Navy nurse, Vietnam veteran, retired nurse practitioner and former pain-management specialist for a large pharmaceutical company," said marijuana, or cannabis, was her salvation.

"I use medical cannabis for severe pain and inflammation of osteoarthritis," she said. "Like many other patients, standard pharmaceuticals haven't helped me. I've used ... Celebrex, Vioxx and hydrocortisone injections. This is the only thing that helps."

Richard Hertz of San Diego said supervisors were acting out of personal prejudices against medical marijuana use, and wasting taxpayer money, in addition to hurting patients.

"You don't get to willingly invite lawsuits that we will have to pay for," he said. I say, if you get sued for following your personal opinions ---- you pay for it. You've said this is a bad law. Well, I'm here to tell you that you don't get to decide that. The state Legislature has instructed you to implement this program. It's time you realize your personal opinions don't matter."

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