Supes vote to persist with medical marijuana challenge

December 11, 2006

Gig Conaughton, North County Times

SAN DIEGO -- As expected, San Diego County supervisors voted Tuesday to continue their controversial legal challenge to overturn California's 10-year-old, voter-approved medical marijuana law.

Board Chairman Bill Horn said the board voted in closed session to appeal Superior Court William R. Nevitt's week-old ruling that dismissed the county's argument that California's Compassionate Use Act should be pre-empted by federal law because federal law is "supreme."

The county's challenge has national implications, patients and government officials say, because it marks the first time that any county has sued to overturn any of the medical marijuana laws voters have approved in 11 states.

California's Compassionate Use Act, approved by 56 percent of voters statewide in 1996, says that seriously ill people who have a doctor's recommendation can use marijuana to ease their pain and suffering.

The federal Controlled Substances Act says marijuana has no medicinal value and is illegal in all cases -- even though it also says that synthetically created tetrahydrocannibinol, the active ingredient in marijuana, does have medicinal value and can be prescribed by doctors.

Despite the seeming conflict between California's law and the federal law, Nevitt dismissed the county's pre-emption argument last week. Nevitt ruled that there was no legal conflict because California's law did not compel people to break the federal law and that federal agents could still arrest marijuana users.

Nevitt also ruled that in some cases, state's laws are "supreme" over federal law.

Horn, however, said Tuesday that the county supervisors believe in their argument, and would file an appeal with the California's 4th Appellate District.

"We feel that the judge skated (over) the entire (pre-emption) issue," Horn said. "We've gone this far. It just behooves us to go the next step."

San Diego County supervisors angered local medical marijuana patients and state and national medical marijuana advocacy groups in December 2005, when they decided to file their lawsuit to try to overturn the Compassionate Use Act, formerly known as Proposition 215.

Supervisors said the act was "bad law" and would promote drug abuse.

However, patients who say they use medical marijuana for a host of serious problems, ranging from severe burns to crushed spines, cancer and other ailments, have repeatedly told supervisors over the last year that marijuana was the only drug that seemed to help them.

A number of those patients attended Tuesday's meeting to ask the board not to appeal Nevitt's decision, and to instead follow state legislation and create a medical marijuana identification card program to help them.

Point Loma resident Ronald Little said marijuana was the only drug that helped save his mother-in-law's eyesight, by reducing the intraocular pressure in her eyes that was making her go blind.

Little suggested that supervisors were sacrificing patients "on the altar of your drug-war ideology."

"I just think it's reprehensible," Little said.

However, a number of speakers from parent-teacher associations and drug-prevention groups challenged the patients.

They urged supervisors to appeal and continue their fight to overturn the Compassionate Use Act.

Kevin McClure of the San Diego Prevention Coalition said the law was aiding drug trafficking and threatening California's youth.

"In our opinion, the true intention of Prop. 215 hides behind the facade of terminally ill patients," McClure said. "And it has been used as a smokescreen for ill-intentioned profiteers to make a case for selling marijuana without criminal liability."

Horn, meanwhile, said Tuesday's testimony did not figure into the county's vote to appeal and continue its fight.

"No, not at all," Horn said. "I think it's a bad law. I mean, as far as the benefits, those are medical opinions. There are probably some medical benefits, if you listen to the (patients). But that's not our point. Our point is who has jurisdiction here (the state or federal government).

"We didn't get that from this judge, so we're going to appeal it," he said.

Horn said the supervisor's closed-session vote was 4-1, but would not say who opposed the appeal.

Despite the lack of unanimity, the board's appeal was no surprise.

All of the current supervisors opposed Prop. 215 when it was put on the ballot in 1996.

Last week, John Sansone, the county's lead attorney, said he thought Nevitt's ruling left room for an appeal.

Meanwhile, Vista resident Craig McClain, a longtime medical marijuana patient, said he was not surprised by the news Tuesday night.

McClain says he uses marijuana to ease the severe spasms he suffers from a construction-related accident that crushed his spine and left him with six screws holding his pelvis together. He attended Tuesday's board meeting but did not speak.

"Oh, I knew they were going to appeal," McClain said. "You could look at their faces, and it was the same exact deal. They smile and they look at you, but there's a coldness to that room that is just incredible.

"I mean, I don't want to speak ill," he said. "But there's a definite coldness. I guess we're going to the Supreme Court."

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



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