Judge hears San Diego County challenge to medical marijuana law

November 16, 2006

Allison Hoffman, Associated Press

Attorneys for San Diego County argued Thursday before a state court judge that the blanket federal ban on marijuana use precludes states from passing statutes exempting people who use the drug for medical purposes.

San Diego County sued California and its health services director in February over the state's decade-old law permitting use of the drug with a physician's approval. The county says it should not be bound to act to uphold state laws that conflict with federal statutes.

"California has authorized the exact same conduct that federal law has prohibited," argued Thomas Bunton, a senior deputy county counsel. "That's clearly an obstacle to the objective of Congress to prevent drug abuse."

Two other California counties, San Bernardino and Merced, joined San Diego as plaintiffs. All three counties have refused to comply with a state requirement that counties issue identification cards for medical marijuana users and maintain a registry of people who apply for the cards.

Earlier Thursday, Superior Court Judge William R. Nevitt, Jr., issued a tentative ruling rejecting the county's suit.

Nevitt sat poker-faced through the two-hour hearing, asking procedural questions but giving little indication of whether he intends to revise his opinion. He did not indicate when a final ruling would be issued but set a Dec. 1 deadline for additional briefs on issues related to the case.

In his tentative ruling, Nevitt agreed with attorneys for the state, who argued that California is entitled to pass its own drug laws and legislate programs that allow marijuana use for medical purposes.

"The counties are not being forced to do anything that would be in violation of federal law," said Leslie Lopez, a deputy state attorney general. "They're simply being asked to carry out state law."

Five California patients and caregivers, represented by the American Civil Liberties Union, Americans for Safe Access and other advocacy groups, joined the case on the side of the state. A sixth patient, Pamela Sakuda, who suffered from rectal cancer, died last Friday, said William Dolphin, a spokesman for ASA.

About 30 medical marijuana users gathered in the courtroom to hear the arguments, many loudly tut-tutting as Bunton and other county attorneys argued that making marijuana available to the ill can enable recreational drug abuse.

County officials said they have not decided whether they will appeal if Nevitt stands by his initial ruling.

"All we wanted was guidance from the court telling us where we're at so we don't break any rules and lose any funding," said San Diego County Supervisor Bill Horn.

Supporters of the law said they were prepared for a fight.

"It will go as far as the counties want to take it," said Adam Wolf, an attorney for the ACLU Drug Law Reform Project who argued part of the case.

California's law allows people suffering AIDS, cancer, anorexia, chronic pain, arthritis and migraine and "any other illness for which marijuana provides relief" to grow or possess small amounts of marijuana with a doctor's recommendation.

Since California voters passed the law with 55 percent approval in 1996, 10 other states have adopted measures protecting qualified patients from prosecution. They are Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington.

Last week, voters in South Dakota rejected a ballot measure to permit marijuana use for medical purposes.

In 2003, the California Legislature amended the 1996 bill to direct county health departments to issue ID cards to medical marijuana users.

Counties, which did not receive money to fulfill the requirement, have been slow to issue ID cards, but San Diego was the first to refuse on legal grounds.


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