Tentative ruling nixes challenge to medical marijuana

November 16, 2006

Bob Egelko, San Francisco Chronicle

A judge in San Diego indicated Thursday that he would reject three counties' challenge to California's medical marijuana law, saying the state could enforce a law allowing people to use the drug even if the federal government bans it.

Federal officers are free to enforce the U.S. law prohibiting possession and cultivation of marijuana, but that doesn't prohibit California from allowing medical use of the drug under its own law, Superior Court Judge William Nevitt said. The voters did just that when they approved Proposition 215 in 1996.

The two laws would be in conflict only if California required its residents or officials to do something that specifically was banned by the federal law, Nevitt said. California's decision to allow medicinal use of marijuana doesn't qualify, he said.

After issuing his tentative ruling, the judge heard arguments from lawyers for San Diego, Merced and San Bernardino counties, the state and medical marijuana advocates, but did not issue a final decision. A ruling is due within 90 days.

Supporters of the medical marijuana law said they were encouraged.

"The core issue is nothing less than the integrity of our democratic process,'' said Adam Wolf, a lawyer with the American Civil Liberties Union, which represented patients and doctors. "An overwhelming majority of California voters went to the polls 10 years ago to cast a vote for compassion. ... Three counties are saying they are above the law.''

State Deputy Attorney General Leslie Lopez said Congress, in punishing marijuana use under federal law, never intended to require states to enact identical laws.

Thomas Bunton, a senior deputy counsel for San Diego County, said he hoped the judge would change his mind and conclude that the state law interferes with the federal marijuana ban.

"California authorized use of marijuana for medical purposes, but federal law has said marijuana has no legitimate medical use,'' Bunton said. "California authorizes, and in fact encourages, people to use marijuana, when that is in fact forbidden by federal law.''

The counties' lawsuit could dismantle Prop. 215.

Since the initiative took effect, the federal government has raided and prosecuted medical marijuana suppliers, has won U.S. Supreme Court rulings allowing enforcement of federal law against Californians who were complying with the state initiative, and has sought unsuccessfully to punish doctors who recommended marijuana to their patients. But federal authorities have not argued that California's law is unenforceable.

That argument was advanced in this case by county officials who refused to issue identification cards for medical marijuana users, as required by a state law that took effect last year. Patients and their caregivers can show the cards to police as evidence of a doctor's approval.

Nevitt's tentative ruling rejected the counties' challenge to the identification cards.

The case before Nevitt involves enforcement of Prop. 215 in just those three counties. But a higher state or federal court could invalidate the law statewide if it ruled in the counties' favor.

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