County moves medical marijuana challenge to state court

February 02, 2006

Gig Conaughton, North County Times (CA)

San Diego County leaders have abruptly switched their precedent-setting lawsuit to overturn California's medical marijuana law from federal to state court this week. County officials denied that they moved their lawsuit ---- which has angered medical marijuana patients and advocacy groups ---- because they feared the lawsuit would be thrown out of federal court.

They said that going through the state court system could be a winning legal strategy ---- by still leaving the option of getting to the U.S. Supreme Court and avoiding the U.S. 9th Circuit Court of Appeals, which has been friendlier to marijuana advocates than opponents.

"This could still take us to the U.S. Supreme Court," County Counsel John Sansone said. "And if it avoids the 9th Circuit Court of Appeals, so be it."

Attorneys from the American Civil Liberties Union, who were seeking court permission to oppose the county's federal lawsuit, said they would do the same in the state system.

"Tell them, 'I guess we'll see you in court,' " ACLU attorney Allen Hopper said.

Both the county and marijuana advocacy groups say the county's challenge is precedent-setting because it is the first to try to overturn any of the medical marijuana laws that voters have approved in 11 states.

The county, pushed by a 4-0 vote in December by its Board of Supervisors, with Supervisor Ron Roberts absent, filed a lawsuit seeking to overthrow California's medical marijuana law on Jan. 20.

The lawsuit wants the courts to invalidate the 9-year-old, voter-approved "Compassionate Use Act" ---- Proposition 215 ---- on the grounds that it should be pre-empted by federal law, which says that all marijuana use is illegal and that marijuana has no medicinal value.

But Sansone said Thursday that after more research, county attorneys filed essentially the same lawsuit in state Superior Court on Wednesday, and withdrew its federal filing.

Hopper and state health department officials said last week that they thought the U.S. District Court might throw out the county's federal lawsuit before it was even heard ---- because it lacked legal "standing."

Hopper said counties are not allowed to sue states in federal court over federal law.

On Thursday, Sansone said that suggestion had nothing to do with the county's decision to take the state court route.

"We believe we would have prevailed on that 'standing' issue," Sansone said. "But, for a whole lot of other issues relating to legal strategy, we think this case is best suited to the state courts."

Hopper, meanwhile, suggested that if the county was trying to avoid the federal 9th Circuit Court of Appeals because it feared the judges there would not side with them, it could backfire.

Hopper said the 9th Circuit Court of Appeals was "one of the most often reversed" courts in the country. He said that if the 9th Circuit judges had ruled against the county's challenge, it would almost guarantee a review by the U.S. Supreme Court.

"If the 9th Circuit says, 'The sky is blue,' they (the Supreme Court) would want to review the decision and actually say the sky is gray," Hopper said.

The county's new lawsuit uses the same pre-emption argument as the federal suit they withdrew. But it expands the scope of the suit somewhat.

The federal lawsuit was filed against the state and Sandra Shewry, director of California's Department of Health Services. The state lawsuit also names the San Diego chapter of the National Organization for the Reform of Marijuana Laws to the list.

Sansone said NORML sent a letter to county supervisors threatening to sue them because the county had refused a state order in November to create an identification card and registration program for medical marijuana users, to help implement Prop. 215.

The new lawsuit alleges that the county believes its defense against the group's threatened lawsuit is that Prop. 215 should be overturned because it clashes with federal law.

The county's argument cites the U.S. Constitution's "Supremacy Clause" ---- which states that the Constitution and federal law should be "supreme" over state laws ---- and that a 1961 U.S. treaty with 150 other nations that states that marijuana is illegal.

Contact staff writer Gig Conaughton at (760) 739-6696 or


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