Judge rejects county pot suit

November 16, 2006

Gig Conaughton, North County Times

SAN DIEGO -- A Superior Court judge issued a tentative ruling Thursday rejecting San Diego County's challenge to overturn California's 10-year old, voter-approved "Compassionate Use Act" -- the law that says seriously ill people can use marijuana legally to ease their pain and suffering.

Superior Court Judge William R. Nevitt issued a tentative ruling Thursday morning that rejected the county's argument that the California law should be "pre-empted" by federal law -- which says that marijuana has no medicinal benefit and is illegal in all cases.

However, Nevitt also listened to lawyers argue for and against his tentative ruling for roughly two hours Thursday afternoon. Nevitt said he would consider the arguments and issue a final, written judgment, but did not say when.

Craig McClain, a Vista businessman, husband, father and spinal-cord injury victim, said he was "tentatively" happy after Nevitt's ruling.

"It gives me hope," McClain said, twisting uncomfortably in his motorized scooter in an attempt to ease the spastic attacks he suffers, which he had used marijuana to help control. "It just scares me when I hear their (county's) arguments."

The San Diego County Board of Supervisors filed a lawsuit in state court in December 2005 after refusing to comply with state orders to create an identification card and registry program for medical marijuana users. Two other counties, San Bernardino and Merced, joined the lawsuit last year. Last month, Riverside County supervisors rejected a plan to create a registry program and voted to join the other three counties.

The lawsuit has national importance -- and appeals could reach the U.S. Supreme Court -- because it marks the first time that a county has sued to try to overturn any of the medical marijuana laws approved by voters in 11 states.

San Diego County supervisors, who have opposed the Compassionate Use Act since it was put on the state ballot as Proposition 215 and approved by 56 percent of state voters in 1996, have called it a "bad law" that promotes drug abuse.

Medical marijuana advocacy groups and patients held a press conference -- punctuated by loud applause and whoops of joy -- on the courtroom steps Thursday after Nevitt's hearing to praise the judge's tentative ruling.

Jeremy Blank, attorney for San Diego NORML, the National Organization for the Reform of Marijuana Laws, said. "I think the judge's ruling is very encouraging. If it is affirmed ... I think it would be a great victory, not only for patients and doctors, but also for the voters of the state of California and Legislature of California."

The county's lawsuit argued that the state law should be pre-empted by federal law under the U.S. Constitution's "Supremacy Clause," which states that federal laws should be "supreme" over state laws. The federal Controlled Substances Act, approved in the 1970s, says that marijuana is a "Schedule 1" drug, without any medical value, on a par with heroin, LSD and mescaline.

However, Nevitt, in his tentative ruling, said the county's pre-emption argument left out an important corollary to the Supremacy Clause that said in areas where state legislatures traditionally make law, state law is considered pre-eminent.

In addition, Nevitt said the county did not make a compelling argument that Prop. 215 and federal law were "in conflict" -- even if they said opposite things.

Nevitt said that although the laws appear to conflict, the California law did not "require" people to break the law, but only allowed seriously ill people to do so, legally, under state law. And, Nevitt ruled, there was no direct conflict because the federal government was still free to arrest medical marijuana patients in California under the federal law.

County senior deputy district attorney Thomas Bunton argued during Thursday's oral hearings that Nevitt's ruling missed an important part of the "conflict" question.

Bunton said the test for conflict was twofold. First, whether the laws could co-exist, and second, whether a state law created an "obstacle" for the federal statute.

Bunton said Nevitt's ruling answered the first question, but ignored the second.

Bunton said that Prop. 215 "severely undermined" the federal Controlled Substances Act by "authorizing" people to use an illegal drug, and by creating problems for federal law enforcement officers because California's "medical marijuana" could be lost, stolen or sold and used for illegal purposes.

"It's clear that marijuana use is drug abuse under the eyes of the federal Controlled Substance Act," he said. "It's drug abuse."

Bunton also said that states had a right to adopt separate laws from the federal government if they were at least as strict, or more so. Otherwise, he said, the Supremacy Clause said federal law should pre-empt them.

But Adam Wolf, attorney for the American Civil Liberties Union -- which successfully sued to intervene in the county case to defend medical marijuana patients -- said states had every right to adopt their own laws, even if they were less stringent than federal laws.

"If their interpretation were correct, you would have literally thousands of state laws that would be called into question," Wolf said. "Any state regulation that imposes punishment less than the federal government would be called into doubt."

Wolf said the ACLU was confident that Nevitt would affirm his tentative ruling, that the county's would have to comply with the state law -- and that if they did not, activists were ready to appeal the case to the highest courts.

"We've always felt good about our chances," he said. "We're right on the law. The will of the California voters will prevail. No county is above the law."

Meanwhile, Steph Sherer, a medical marijuana user and founder of Americans for Safe Access -- a group that wants to get the federal government to change its marijuana laws -- held back tears, and asked for a moment of silence for Pam Sakuda, who died last week after a long battle with cancer.

Sakuda, a San Diego resident who used marijuana to give herself enough appetite to combat the nausea of chemotherapy, had campaigned against the county's medical marijuana lawsuit.

Sherer said the county's lawsuit was making people suffer for no reason. "The absurdity is that patients like Pam are spending precious moments in a courtroom instead of with loved ones, and living what life they have left," Sherer said.

-- Contact staff writer Gig Conaughton at (951) 676-4315, Ext. 6696, or gconaughton@californian.com.

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