Judge turns down county challenge to medical pot

November 16, 2006

Jeff McDonald, San Diego Union-Tribune

A Superior Court judge yesterday rejected a claim by San Diego County that California's medical-marijuana laws directly conflict with federal drug statutes.

The tentative ruling was issued hours before oral arguments were presented in the lawsuit that the county brought earlier this year against the state, which legalized the use of marijuana for health purposes a decade ago.

Merced and San Bernardino counties later joined San Diego in the case, which is the first of its kind in California and is being closely watched by officials from Sacramento to Washington.

San Diego Superior Court Judge William R. Nevitt Jr. took the matter under submission after the two-hour hearing in a crowded downtown courtroom. A final ruling is likely to be issued next month.

The tentative decision makes clear that Nevitt considers the will of voters to be critical. California's medical-marijuana initiative passed with 56 percent support, but its implementation has been hampered by federal drug laws, which prohibit any use or possession of marijuana.

“When the voters passed Proposition 215, they expressly stated that one of their purposes was to 'ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes,' ” Nevitt ruled.

Although not unexpected, the preliminary decision was welcome news to medical-marijuana activists, who showed up in force at the Hall of Justice. One man was on crutches and another used an electric scooter. Outside the courthouse, they cheered the decision as lawyers for advocacy groups appeared before TV cameras.

“California's medical-marijuana laws are safe today,” said Adam Wolf, an attorney with the American Civil Liberties Union, one of three groups to join the state as co-defendants in the case. “We now have three counties trying to put politics over science – trying to put politics over the health and well-being of patients.”

Thomas Bunton, a lawyer for San Diego County, said he was disappointed with the tentative ruling. However, he added, “We think there's a good chance the judge will reconsider.”

“I made a good argument,” he said after the hearing.

Bunton declined to speculate on whether the county would appeal the decision if it stands.

His counterpart from Merced, Walter Wall, told the judge that his county would appeal and would request a stay through the length of the litigation.

“In essence, a medical-marijuana cardholder would have a get-out-of-jail card in our county,” Wall said.

The San Diego County Board of Supervisors voted to sue California rather than follow a state law that requires counties to issue identification cards to qualified medical-marijuana patients.

The supervisors who voted to file the suit are Pam Slater-Price, Dianne Jacob and board Chairman Bill Horn. Supervisors Greg Cox and Ron Roberts opposed the decision.

Horn did not return a telephone call seeking comment on the tentative ruling. But in an earlier interview, he said he could not enforce a law that conflicts with federal rules without putting the county at risk.

“A lot of the money we receive, over $4.3 billion, most of that money comes from the federal government,” Horn said. “And if we violate any of those statutes, we're in jeopardy of losing those dollars.”

The legal arguments hashed out in court yesterday centered on the question of whether states were required to fully enforce federal laws. The state Department of Justice said they were not.

“The federal government cannot require the state to be their exclusive ally,” Deputy Attorney General Leslie Lopez told the judge. “It simply cuts against states' rights.”

Lawyers for San Diego, San Bernardino and Merced counties tried to persuade Nevitt to reverse his tentative ruling.

They said Senate Bill 420, the 2003 legislation that mandated the identification cards and set guidelines for legally growing marijuana plants, should have gone before voters because it substantially changed Proposition 215, the 1996 voter initiative.

They also noted that marijuana is a Schedule 1 drug – the most dangerous classification – and that the federal government has determined it has no medical value.

“It's clear that the medical use of marijuana is drug abuse within the context of the Controlled Substances Act,” Bunton, the county's attorney, told the judge.

Nevitt gave no indication whether his tentative ruling would stand. He asked lawyers for both sides about contingency plans should he change his mind.

In his six-page tentative ruling, however, he said the counties' arguments were less than persuasive, largely because California's medical marijuana laws are voluntary.

“The state convincingly rebuts San Diego County's argument that under (federal law) the (state laws) are pre-empted because they 'authorize' conduct that federal law prohibits,” he wrote.

The court hearing drew attention from all sides in the drug-policy debate.

The advocacy groups Americans for Safe Access and Drug Policy Alliance joined the ACLU in intervening in the case to defend the state medical-marijuana laws in court.

Officials from a number of drug-abuse prevention groups showed up in support of the counties. The San Diego Prevention Coalition issued a news release saying the case was not about the medical value of marijuana but rather the state's ability to pass laws that contradict federal rules.

“Regrettably, the face of terminally ill patients has been utilized as a smokescreen for ill-intentioned profiteers to make a case for selling marijuana for profit,” Executive Director Kevin McClure wrote.

Outside the courthouse, William Britt, a Long Beach man who suffers from polio and epilepsy, applauded the ruling but was angry that government officials have stymied Proposition 215 for so long.

“In the last 10 years, sick and disabled people have been found to be arrested and dragged into court,” said Britt, who walks with crutches. “It's devastating. There's been a conspiracy to ignore and overturn and stop the implementation of the law.”

Steph Sherer of Americans for Safe Access called on the group to observe a moment of silence for Pamela Sakuda, one of several patients who intervened in the case. The San Diego cancer patient died earlier this month.

“Thank you, Pam,” Sherer said a moment later. “We'll miss you.”


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