Counties Challenge Legality of California Medical Marijuana Law

August 04, 2006

Kriss Perras, Malibu Arts Journal

The State's Medical Marijuana Act is coming under scrutiny from the counties. However, proponents of the law are stepping in to ensure the law stays in tact. On Friday, a San Diego Superior Court ruled that lawyers from the American Civil Liberties Union (ACLU) and Americans for Safe Access (ASA) and the Drug Policy Alliance (DPA) will be permitted to intervene in a lawsuit brought by several California counties seeking to thwart the state’s Compassionate Use Act.

The act makes medical marijuana legal for patients with a doctor’s recommendation.

“We are heartened that the court recognized the necessity of giving voice to those truly at risk from the counties’ ill-conceived actions,” David Blair-Loy, an attorney with the ACLU of San Diego and Imperial Counties, said in a statement.

San Diego, San Bernardino and Merced counties argued in a lawsuit filed in state court that federal laws prohibiting all use of marijuana invalidate state laws that allow qualified patients to use medical marijuana. The ACLU, ASA and the DPA filed legal papers on July 7, 2006 seeking to intervene in the proceedings.

"We feel it’s critically important that California’s medical marijuana laws be respected by everyone,” Steph Sherer, executive director of ASA, said in a statement last Friday.

One such dispensary is located within the city limits of Malibu. And, our local government has been hot on the trail of this issue by imposition of a moratorium so no further such dispensaries can crop up here.

City Council Christi Hogin reported at a June Council meeting that crime rates increase when such facilities are present.

However, proponents of such dispensaries are standing firm in their defense of the Act.

Daniel Abrahamson, director of legal affairs for the Alliance, added, “These county governments have ignored the needs of their sick and dying residents and the advice of California's physicians. By intervening in the lawsuit, patients will have the chance to confront their rogue county officials in court and defend the legality of the Compassionate Use Act.”

The ACLU, DPA and ASA maintain that state medical marijuana laws are not preempted by the federal ban on medical marijuana. While the federal government is free to enforce its prohibition on medical marijuana, even in states such as California that permit its use, all states remain free to adopt and implement policies of their own design – an opinion shared by the California Attorney General’s office and the attorneys general of several other states, including Colorado, Hawaii and Oregon, that permit medical use of marijuana.

The groups represent Wendy Christakes, Pamela Sakuda, William Britt and Yvonne Westbrook, Californians who use physician-recommended marijuana to treat medical conditions and their side-effects, including chronic pain and sciatica, multiple sclerosis, rectal cancer, epilepsy and post-polio syndrome. The groups also represent Sakuda’s spouse and caregiver, Norbert Litzinger, as well as Dr. Stephen O’Brien, a physician who specializes in HIV/AIDS treatment in Oakland, California, and believes that many of his seriously ill patients benefit from the medical use of marijuana.

In addition to entering the case, the group’s filing asked for a court order compelling the counties to abide by and implement California’s medical marijuana laws, as well as an order affirming that the state’s medical marijuana laws are not preempted by contrary federal statutes.

The lawsuit, initially brought by San Diego County and later joined by San Bernardino and Merced counties, challenges state laws that permit patients to use, and doctors to recommend, medical marijuana under explicit exemptions from state criminal laws that otherwise prohibit all marijuana use. The counties’ lawsuit further challenges the state’s Medical Marijuana Program Act, which calls for the implementation of an identification card program that would allow police and others to more easily identify legitimate medical marijuana patients.



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