It's counties against state again in appeal of pot suit

June 07, 2008

Jeff McDonald, San Diego Union Tribune

Nineteen months after a judge rejected San Diego County's lawsuit against the state of California seeking to overturn medical marijuana laws, government lawyers are returning to court to argue their appeals.

In a case being watched closely by counties around the state, oral arguments are scheduled for 9 a.m. Tuesday in a 4th District Court of Appeal courtroom in downtown San Diego.

The panel of judges is not expected to issue an immediate ruling. Instead, a decision likely will be handed down sometime this summer.

Lawyers for San Diego and San Bernardino counties will argue that the state cannot force counties to issue identification cards to qualified medical marijuana patients because the drug is illegal under federal law.

OVERVIEW

Background: San Diego and San Bernardino counties went to court rather than implement a state law requiring counties to issue identification cards to qualified medical marijuana patients. They lost in Superior Court in late 2006.

What's changing: Lawyers for the two counties will appear before the 4th District Court of Appeal in downtown San Diego on Tuesday to argue against state medical marijuana laws.

The future: A ruling from the appellate panel is expected sometime this summer. Either side could appeal to the California Supreme Court.

San Bernardino and Merced counties joined the San Diego County lawsuit in 2006, but Merced County supervisors subsequently voted to abandon the suit and issue the identification.

The state will join lawyers for sick and dying patients in arguing that San Diego Superior Court Judge William R. Nevitt Jr. ruled correctly in 2006, when he said the county must follow state law and issue the cards.

“The counties continue to recycle their ill-fated arguments,” said Adam Wolf, a staff attorney with the American Civil Liberties Union, which is a co-defendant in the suit.

“The law is clear: The federal government cannot force the state of California to arrest and prosecute medical marijuana patients,” Wolf said.

In 1996, 56 percent of California voters approved Proposition 215, which allows chronicly ill patients to grow and smoke marijuana to relieve symptoms related to their sickness.

Seven years later, amid confusion and lackluster support for medical marijuana among many law enforcement and local elected officials, then-Gov. Gray Davis signed a bill requiring counties to issue identification cards to qualified patients.

The state laws squarely conflict with federal drug laws, which classify marijuana among the most dangerous drugs in the world.

San Diego County refused to follow the state law calling for ID cards, and sued the state to overturn its medical marijuana provisions. The county lost its Superior Court case and quickly appealed.

“The medical marijuana laws conflict with the federal Controlled Substances Act because they authorize individuals to use marijuana, which is prohibited by federal law,” said Thomas Bunton, the county attorney leading the fight against Proposition 215. “The Superior Court decision is really irrelevant.”

Since 2004, at least 35 of California's 58 counties have agreed to issue ID cards to medical marijuana patients. The rest have resisted, apparently awaiting the outcome of this case.

San Diego County's refusal to issue the identification cards has left an untold number of patients – most say thousands – with no protections against individual police and sheriff's deputies, who have great discretion in pursuing drug-possession cases.

“With an ID card, I would at least have something that says I'm a legitimate patient,” said Craig McClain, 51, a spinal cord patient from Vista who smokes marijuana to relieve swelling and back pain.

“With the police, you don't know if a guy's going to be understanding or not,” said McClain, who was disabled in a 1990 construction accident. “There are a lot of good officers out there, but there are also those officers who only care about the adrenaline rush of arresting people.”

Staff attorney Joseph Elford of Americans for Safe Access, another advocacy group that represents medical marijuana patients, said he expects San Diego and San Bernardino counties to take their case to the California Supreme Court if they lose this appeal.

“It's extremely political,” said Elford, who is meeting with a group of patients Tuesday night to update them on the case. “The boards of supervisors from San Diego and San Bernardino (counties) are opposed to what the rest of the state, and people in their own counties, voted in favor of.”


Jeff McDonald: (619) 542-4585; jeff.mcdonald@uniontrib.com

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