Judge tosses county's medical marijuana challenge

December 06, 2006

Gig Conaughton, North County Times

SAN DIEGO -- Medical marijuana advocates declared victory and San Diego County officials mentioned the word "appeal" Wednesday when a Superior Court judge rejected -- for the second time -- the county's controversial challenge to overturn California's "Compassionate Use" act.

Superior Court Judge William R. Nevitt, reaffirming the tentative ruling he issued Nov. 16, rejected the county's argument that California's voter-approved Compassionate Use act should be pre-empted by federal law.

Federal law says marijuana has no medicinal value and its use is illegal in all situations.


San Diego County supervisors, in a move that angered local medical marijuana patients and national advocacy groups, voted to try to overturn the law in December 2005. Supervisors said the Compassionate Use act was "bad law" and would promote drug abuse.

But Judge Nevitt, in his final ruling Wednesday, said the county failed to prove that the state law was in legal conflict with the federal law. He also ruled the state law did not "require" people to break the federal law, as the county's pre-emption argument claimed.

Nevitt said the county's pre-emption argument failed because a corollary to the U.S. Constitution's "Supremacy Clause" -- which says federal law should be "supreme" over state laws -- says state laws could take precedence over federal laws in some cases.

John Sansone, the county's top lawyer, said Wednesday afternoon that supervisors would meet in closed session Tuesday to decide whether they want to appeal Nevitt's ruling.

Bill Horn, the county board's chairman, did not return calls Wednesday.

Sansone, meanwhile, said he would advise the supervisors that he believed an appeal could be successful.

Medical marijuana advocacy groups, however, said Nevitt's ruling was clear. They called on the county to immediately obey California's law by issuing identification cards to valid medical marijuana users.

Meanwhile, one local medical marijuana patient, Vista resident Craig McClain, was clearly ecstatic when he received the news of Nevitt's ruling.

"Wow, man, that's good news," said McClain, a spinal cord injury victim. "I can't believe it. I'm just so pleased to hear that, God. I'm ecstatic. It just goes to show you, you gotta hang tough."

McClain, whose spine was crushed several years ago in a construction-related accident, said he has used marijuana for several years to ease the severe, chronic spasms the injury has left him with.

McClain and other medical marijuana patients have said they have found it increasingly difficult to get marijuana this summer, after the county and local law enforcement worked with federal drug agents to essentially close down medical marijuana dispensaries.

Adam Wolf, a lawyer for the American Civil Liberties Union -- which successfully sued to intervene in the county case to defend the patients -- said he now expected the counties of San Diego, San Bernardino and Merced to begin issuing medical marijuana identification cards to patients. San Bernardino and Merced counties joined San Diego's lawsuit challenge last year.

"We hope that San Diego sees the wisdom of the court's ruling and agrees to abide by the law," he said, "to stop its ill-founded, unconstitutional challenge, and begin issuing ID cards."

The Compassionate Use act that voters approved in 1996 did not require counties to issue the medical marijuana ID cards, but the state Legislature did by passing Senate Bill 420 in 2003.

San Diego County's challenge to overturn the Compassionate Use act began in November 2005 with a split vote by supervisors to defy SB 420 -- which legislators said would help state police officers tell who legitimate medical marijuana patients are.

The county's lawsuit, filed against California Department of Health Services Director Sandra Shewry and the San Diego chapter of the National Organization for the Reform of Marijuana Laws, sought to overturn both SB 420 and the Compassionate Use act.

Teresa Shilling, a spokeswoman for state Attorney General Bill Lockyer, said Wednesday that it was not the attorney general's position to compel counties to comply with the law. Shilling said that historically, when laws need "to be tested," lawsuits force the courts to compel governments to comply.

Sansone, meanwhile, said he believed that Nevitt did a thorough job analyzing the lawsuit's "complicated" legal arguments. However, Sansone said he believed that Nevitt's ruling left "very strong room" for a successful appeal.

"I think we anticipated all along that this was going to be decided at a higher level," Sansone said. "Where we go? It's up to the board."

William Dolphin, spokesman for Americans for Safe Access, a medical marijuana advocacy group that also sued to intervene in the county lawsuit, said the group was very happy with Nevitt's ruling.

But Dolphin said he was disappointed to hear that San Diego County could decide to appeal.

"I hope not," Dolphin said. "The legal argument cannot be clearer or stronger."

Meanwhile, McClain said he also hoped that county supervisors would drop their challenge and give him -- and other medical marijuana patients -- their ID cards.

"I've been waiting to get that," he said. "To me, that's protection. I've already got a doctor's prescription. I just want something I can hold in my hand. That's what we voted for.

"It may seem silly to some people," McClain said. "But that's like having a driver's license, or your Social Security number. It means I'm doing things the right way."

-- Contact staff writer Gig Conaughton at (760) 739-6696 or gconaughton@nctimes.com.



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