Patients say they'll appeal to county over medical marijuana law

December 08, 2006

Gig Conaughton, North County Times

SAN DIEGO ---- The discussion is set to be held behind closed doors. But at least a couple of local medical marijuana users hope to get a chance Tuesday to try to talk county supervisors out of appealing last week's court decision to throw out the county's controversial bid to overturn California's medical marijuana law.

"I want to try to appeal to their humanity," Vista resident, business owner, husband, father and spinal cord victim Craig McClain said Friday. "Yes, definitely, I'll be there."

Rudy Reyes, a Cedar fire burn victim, said he also planned to come to Tuesday's meeting to speak.

"I'm going in next week to say, 'Stop it, we don't need you guys to continue with this, it's an abuse of our tax dollars,' " Reyes said.

County supervisors, calling the 1996, voter-approved "Compassionate Use Act" a "bad law" that could promote drug abuse, voted in December 2005 to sue to overturn the law.

Last week, the county lost what could be the first round of an extended legal battle that some say could eventually reach the U.S. Supreme Court. The lawsuit has national importance because it is the first time a county has sued to try to overturn any of the medical marijuana laws approved by voters in 11 states.

Wednesday, Superior Court Judge William R. Nevitt rejected the county's argument that the Compassionate Use Act ---- which allows seriously ill people to use marijuana with a doctor's recommendation to ease pain and suffering ---- should be pre-empted by federal law.

The federal Controlled Substances Act states that grown marijuana has no medicinal value and is illegal, period ---- even though it says synthetically created marijuana, known as Marinol, does have medicinal value and can be prescribed for patients.

Nevitt, however, said the county's pre-emption argument failed to recognize that state laws could take precedence over federal laws in some cases. He also said the county failed to prove that California's Compassionate Use act was legally "in conflict" with federal law because federal drug agents could still arrest Californians.

On Tuesday, supervisors will meet for the first time since Nevitt's ruling. They are scheduled to talk in closed session about where they go now on the medical marijuana issue, and whether they should appeal.

Supervisors have talked little about the case since the lawsuit was filed last year. But they have hinted all along that they would probably appeal.

Last week, board Chairman Bill Horn did not return calls after Nevitt's decision, and supervisors in general did not respond three weeks earlier when Nevitt issued a tentative ruling initially dismissing the county's suit.

John Sansone, the county's top lawyer, said last week that he felt that Nevitt's ruling was extremely thorough. But he also said that county lawyers still believed in their legal argument, and felt that an appeal could be successful.

Sansone said that was what he would advise county board members Tuesday in closed session, but that it was up to them to decide whether to continue the challenge.

While McClain and Reyes said they planned to come to Tuesday's meeting to ask the board to drop its challenge, a number of the medical marijuana and legal advocacy groups that have criticized the county's challenge were noncommittal last week.

Officials from Americans for Safe Access ---- a group that wants to get the federal government to change its marijuana laws, and which has appeared before supervisors a handful of times over the last year ---- said they were not sure if they would attend, partly because the county's discussion would be in closed session.

Officials from San Diego's chapter of the National Organization for the Reform of Marijuana Laws, which was included in the county's lawsuit against the state, could not be reached.

David Blair-Loy, an attorney for the American Civil Liberties Union, said Friday that the group wasn't sure if it would send anyone to Tuesday's meeting.

However, Blair-Loy said county supervisors were now "obligated" to follow the state law ---- and create the medical marijuana identification cards they refused to a year ago ---- because Judge Nevitt had rejected the county's lawsuit and upheld the Compassionate Use Act.

The ACLU sued to "intervene" in the county's lawsuit on behalf of medical marijuana patients like McClain and Reyes, and helped argue against the county's case in court.

Blair-Loy said the California Supreme Court ruled in 2004 that county's and cities had to follow state law until ---- and if ---- those laws were found invalid.

"Even if they appeal, they're obligated to comply," Blair-Loy said.

However, Tom Harron, the county's chief deputy county counsel, disagreed.

Harron said Nevitt's ruling was not final until the appeal process ran its course.

Meanwhile, patients have said they're anxious for the county to drop its challenge and to recognize "the will of the people" ---- the 56 percent of California's voters who approved the Compassionate Use Act a decade ago.

Nearly a year ago, when the county was considering suing to overturn the Compassionate Use Act, Horn likened the county's opposition to the actions of civil rights pioneer Rosa Parks.

"I think," Horn said then, "we should challenge this. I look forward to the lawsuit when it happens. If we just celebrated Rosa Parks for standing up against a bad law, I think we ought to stand against bad law."

Last week, Reyes rebuked Horn for that comment when he appeared before the board to again demand that they stop.

"He was calling himself Rosa Parks," Reyes said Friday. "I told him he was the man who wouldn't give up his seat."

Reyes was burned over 75 percent of his body in the 2003 Cedar fire and uses a marijuana tincture as a cream to soothe the burn-exposed nerves on his skin.

McClain, whose spine was crushed in a construction-related accident several years ago, smokes marijuana to ease the chronic spasms the accident created, and to reduce his chronic pain enough to sleep.

McClain uses a motorized scooter to get around.

"If it's closed session," McClain said of the supervisors' discussion, "I can try to be there as they come walking in and ask them to please reconsider their position."

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



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