County enters medical pot challenge

September 10, 2006

Chris Collins, Merced Sun-Star

An attorney battling Merced County over a lawsuit that could determine the future of medical marijuana laws in California said Friday that the county's opposition to the use of the drug is a "broadside attack on state laws."

Joe Elford, the top attorney with Americans for Save Access, made his remarks a week after attorneys for Merced County issued a legal brief that said "marijuana is a substance with no recognized medical use" and that "the possession or use of marijuana is a crime."

The legal firing exchange centers around a high-profile suit filed in San Diego Superior Court earlier this year that challenges the state and its decade-old law allowing the use of medical marijuana. San Diego, San Bernardino and Merced counties -- which are the only plaintiffs in the suit -- also seek to overturn a state law approved in 2003 that requires counties to provide ID cards to medical marijuana patients. The suit has a good chance of ending up in the California Supreme Court, attorneys on both sides of the suit said.

Merced County didn't get involved in the legal battle until five months after the suit started. County supervisors voted unanimously to join the suit in June after medical marijuana-user and Merced resident Grant Wilson pestered the supervisors for months to issue him an ID card that would protect him from being arrested.

The county has refused to set up a local program that would provide such cards. Instead, it argues that Senate Bill 420, which requires counties to issue ID cards, violates the California Constitution.

The county said in its brief filed last week that Proposition 215, which voters approved in 1996 to legalize medical marijuana, was never intended to be amended by the Legislature. The ID cards requirement was "neither voted for nor likely anticipated by the California electorate" when Proposition 215 was approved, the brief argues.

But Elford said that SB 420 "is in no way repugnant to the will of the voters who passed Proposition 215" and should not be shot down.

Teresa Schilling, a spokesman for the state Attorney General's Office -- which is fighting against Merced County in the suit -- said that the Legislature "has the power and authority to develop regulations to implement the law."

Even though three counties are fighting against the medical marijuana laws, Merced County's attorneys said they are the only ones making the argument that SB 420 is unconstitutional because it makes changes to Proposition 215. Elford, the pro-medical marijuana attorney, called the county's approach "unique."

Most of the debate, however, centers around whether Proposition 215 is superseded by federal laws that have declared marijuana illegal since the 1960s. Elford said states should remain autonomous and be allowed to experiment with different policies.

"History is replete with examples of why the federalist system is a good thing," he said. "If it's a bad idea, then the state will pull the plug and we'd all learn a lesson." But Merced County attorneys cite a U.S. Supreme Court decision last year dealing with medical marijuana laws that said that "if there is any conflict between federal and state law, federal law shall prevail."

The county's involvement in the suit is somewhat peculiar. Unlike San Diego County, where three out of five supervisors oppose the use of medical marijuana, at least three of the five supervisors in Merced County favor laws that give patients access to marijuana.

Only Supervisor Mike Nelson has said he opposes Proposition 215. Supervisor John Pedrozo has not said where he lies on the issue. Supervisors say they voted to join the suit to overturn the laws because they wanted to know whether they should follow federal and state guidelines.

Most said they didn't necessarily want to see Proposition 215 overturned. Merced County attorneys said the only way the county could get that clarification is if they joined the suit.

"The only reason we're in the case is because we need a binding decision," said James Fincher, a county attorney who handles litigation. But if the case is appealed -- as it most likely will be -- a ruling in a court higher than the San Diego Superior Court would result in a decision that will apply to all California counties.

Walter Wall, the county's attorney who is working most closely on the suit, said it was "certainly an option" for the county to wait for a higher court's decision rather than join San Diego County. That would have helped conserve staff time in the already-strained Merced County Counsel's Office. But, Wall said, joining the suit shields the county from potential lawsuits and gives the county a chance to have its say in the legal battle.

Supervisor Jerry O'Banion has said that there was some concern that Wilson, the Merced medical marijuana patient, would sue the county over its refusal to issue ID cards.

Wilson said he is unemployed and is a single father with three kids at home. But he said he "definitely" plans to sue the county.

Elford, however, said it was pointless for Merced County to join the suit since the legal battle would eventually result in a ruling that affects all counties. The county "doesn't add much of anything," he said.

Reporter Chris Collins can be reached at 385-2431 or ccollins@mercedsun-star.com.



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