County resists pot law

January 23, 2006

Robert Rogers, San Bernadino Sun

The San Bernardino County Board of Supervisors voted unanimously Tuesday to follow San Diego County in filing suit against the state for legalizing the use of marijuana for medicinal purposes, a legalization that attorneys for both counties contend is in conflict with federal law.

The lawsuits - San Diego County filed Jan. 20 and San Bernardino County could file later this week - mark yet another episode in the saga since voters passed California's Compassionate Use Act, also known as Proposition 215, in 1996.

The Supreme Court ruled last year that Congress does have authority under the Constitution's commerce clause to make federal laws prohibiting marijuana use, a decision that further clouded the act's legal clarity.

San Bernardino County officials, prodded by a memorandum sent in December by Sheriff Gary Penrod, decided the legal inconsistency was too much.

"The federal government and state government have put us in conflicting situations where we don't know what to do," said 3rd District Supervisor Dennis Hansberger. "Let's resolve it. Whatever the court says is the law."

San Diego County Counsel John Sansone said the suit, with which San Bernardino County's will likely be consolidated, said the legal action is about resolving conflicting laws.

"What precipitates this is the state mandating counties to issue medical marijuana cards, and the board here took issue with that because the use of marijuana is a federal crime," Sansone said.

"What is a federal crime? Does federal law pre-empt state law or not?"

Sansone said the Supreme Court's ruling last year put the state's medical marijuana laws on shakier ground.

According to Tacey Derenzy, a spokeswoman for the California Department of Health Services, 779 medical marijuana ID cards have been issued in 15 of the state's 58 counties, including Riverside County.

Sandra Shewry, the director of the Department of Health Services, which issues the cards, was named as a co-defendant along with the state of California in San Diego County's lawsuit. The department is typically named because it is the law's implementer, said San Bernardino County Counsel Ruth Stringer.

It was Shewry who directed staff to resume the ID card program in mid-July after conferring with the state Attorney General's Office regarding the program's legality, according to the state Department of Health Services.

Shewry could not be immediately reached for comment. Neither Derenzy nor spokesmen for the San Bernardino County Sheriff's Department would comment on San Bernardino County's pending lawsuit, citing insufficient knowledge on the issue hours after the supervisors' vote.

Still, the program has continued in an uneasy calm for months, as the form applicants submitted to the state's health services agencies warned that information they provided could be used for federal prosecution.

Ultimately, the case could reach the Supreme Court, Stringer said.

"(The law) puts the sheriff into the untenable position of determining the law," Stringer said.

"In order to resolve the conflict, the county has decided to force the action. The law should be clear, not so blatantly in conflict," she said.

The case will begin at U.S. District Court in San Diego County, with the losing party having the option to appeal to the 9th U.S. Circuit Court of Appeals. From there, floating to the top of the Supreme Court's stack of requests is a possibility.



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