County's suit over pot laws to proceed

June 09, 2006

Leslie Wolf Branscomb, San Diego Union Tribune

San Diego County's lawsuit against state medical marijuana laws will be allowed to proceed, a Superior Court judge ruled yesterday.

The county Board of Supervisors voted late last year to sue the state over its laws that permit the use of medical marijuana and require counties to issue identification cards to users. The county contends that those laws are in direct conflict with federal drug laws prohibiting any possession or use of marijuana.

The county is also suing the San Diego chapter of the National Organization for the Reform of Marijuana Laws, or NORML, because it threatened to sue the county if the supervisors didn't begin implementing the state law that requires the identification cards and a database of users to be created and maintained by the county.

Many California counties are complying with the identification card law, which went into effect in 2004. That statute was enacted because controversy had arisen over who was allowed to possess medical marijuana, which was legalized by state voters when they passed the Compassionate Use Act 10 years ago.

But two counties, San Bernardino and Merced, have joined in the San Diego County lawsuit, seeking clarification as to whether federal laws pre-empt state laws.

Senior Deputy County Counsel Thomas Bunton argued that local governments may challenge state laws that are in conflict with federal statutes.

“The state has taken the position that those are legitimate laws,” Bunton said. “The county has taken the position that those laws are unenforceable.”

The defendants had asked the case be dismissed, saying there weren't sufficient legal grounds to sue, and the time wasn't right because there was no “imminent harm” to the county.

Superior Court Judge William R. Nevitt Jr. disagreed. After hearing arguments from four of the five lawyers involved in the case, Nevitt ruled that the case should proceed.

In his ruling, Nevitt said the county is not precluded from challenging state law. He also ruled that the merits of the county's claims were not at issue at this time – only whether the case had reason to go forward.

The defendants have 10 days to file a response.

After the hearing, medical marijuana advocates vowed to continue fighting.

Mark Bluemel, a lawyer for NORML, said NORML shouldn't even be a party to the suit. People should be able to question the supervisors without being sued, he said.

“The county is really hurting the patients,” Bluemel added. “It's picking and choosing what laws it wants to follow.”

Kris Hermes of the Oakland-based Americans for Safe Access said his group will join in the lawsuit on behalf of medical marijuana-using patients.

“We're confident the federal law does not pre-empt the state's medical marijuana law, that's the bottom line,” Hermes said.



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