San Bernardino, San Diego counties in court over medical marijuana

June 09, 2008

Richard K. De Atley, The Press-Enterprise

SAN DIEGO - San Bernardino and San Diego counties argued in court Tuesday that California's medical marijuana plan violates federal law and the state constitution, while opposing attorneys argued the state is within its rights to regulate the substance.

The exchanges came in a crowded courtroom before a three-judge panel of the state 4th District Court of Appeal in San Diego.

The jurists took the matter under submission and have 90 days to make their ruling. Their decision can be appealed to the state Supreme Court.

Defending the state's marijuana laws was a lawyer from the California attorney general's office, an American Civil Liberties Union lawyer representing the National Organization for the Reform of Marijuana Laws and a lawyer representing patients who use marijuana.

California voters in 1996 legalized the use of marijuana to treat symptoms of illnesses such as cancer and glaucoma, and chronic pain. Prop. 215 was passed by 56 percent of voters.

The two counties are not trying to overturn that initiative.

But they argue that subsequent legislation, the Medical Marijuana Program, which created a system for counties to investigate applicants, issue user cards and keep those on file, puts the counties in direct conflict with the federal Controlled Substances Act.

San Bernardino County has not issued any user cards as officials await the outcome of the lawsuit. Since January 2006, Riverside County has issued 1,000 cards to patients and their caregivers. That number includes renewals, which must be done annually.

Federal law classifies marijuana as a dangerous drug with no medical use. San Bernardino County Sheriff Gary Penrod has said the law created conflicts and ethical issues, especially with his officers who are cross-deputized to uphold federal law.

"There is a big difference between decriminalizing marijuana and authorizing its use ... in violation of federal law," argued San Diego County senior Deputy Counsel Thomas D. Bunton.

"Congress has declared that marijuana has no medical use, so using marijuana under these circumstances is drug abuse."

But states have long practiced authorizing and enforcing laws that do not match federal law, argued ACLU/NORML attorney Adam B. Wolf.

"The counties' position would imply the invalidity of hundreds, if not thousands, of state statutes," Wolf told the judges. Wolf quoted U.S. Supreme Court Justice Antonin Scalia's comment that there has been countless times where states have not criminalized issues the same way as the federal government.

"It's a bedrock principle of federalism" for states to be allowed to determine issues such as how to regulate marijuana, Wolf said

Attorney Joseph D. Elford of Americans for Safe Access, representing medical marijuana patients, noted that neither they nor the federal government had litigated against the state marijuana laws. "Instead, the challenge has come from two subdivisions of the state," he said.

Peter A. Krause for the state attorney general's office said Congress can clarify which federal laws pre-empt local ones, but "there is no conflict between the state's limited decriminalized use of marijuana for limited medical practices and the (federal) Controlled Substances Act to limit drug abuse and trafficking."

"It's difficult to tell what they are challenging in this case," Krause said. "The counties are essentially seeking an advisory opinion," he said.

The Medical Marijuana Program violated state constitutional law because it did not adhere to the rules governing how an initiative can be changed, San Bernardino Deputy County Counsel Alan L. Green argued on Tuesday.

That can only be done by if the original initiative authorizes it, or if another voter initiative is passed to amend the previous one. Green said the 1996 Compassionate Use Act did not include such language, making the Legislature's passage of the Medical Marijuana Program illegal.

He said outside court it was "over and above" what Prop. 215 had called for, and "requires the counties to create a whole new bureaucracy to maintain and track the system."

"A law that allows the state to return confiscated contraband is a violation of federal law," Green said, citing a recent court action that authorized such an action.

Wolf said outside court that the two counties "think they are above the law and above the will of the voters of California."

San Bernardino and Merced counties were originally in the lawsuit along with San Diego County.

San Diego County Superior Court Judge William R. Nevitt Jr. ruled in December 2006 that the California marijuana laws were valid and the counties would have to comply.

San Diego and San Bernardino counties appealed. Merced County, part of the original suit, voted not to pursue the case and began issuing medical marijuana cards.

Among those in court was William Britt, 49, of Long Beach, who displayed his medical marijuana user card.

Britt, who walks with the aid of two elbow brace crutches, said he was one of the last of his generation to contract polio, then developed epilepsy at age 18.

Without being permitted to use medical marijuana, he said, "I would have to take five or six horrible kinds of prescription drugs with side effects such as nausea. For me, cannabis is the perfect medicine," he said.

Reach Richard K. De Atley at 951-368-9573 or

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