Medical pot challenge declined by top court

May 18, 2009

Greg Moran, San Diego Union Tribune

The U.S. Supreme Court ended San Diego County's three-year legal battle against California's medical marijuana law yesterday by declining to hear the county's last appeal.

The move effectively means the county will soon begin issuing identification cards for medical marijuana users who want them. That is required under a state law passed in 2004 that San Diego and San Bernardino counties have resisted.

At its June 16 meeting, the five-member Board of Supervisors will consider a recommendation to issue the cards, said Senior Deputy County Counsel Thomas Bunton, who led the legal battle that one opponent yesterday called “quixotic.”

Supervisors indicated in statements yesterday that, with the court case concluded, they will approve issuing the cards.

“The case is officially over,” Supervisor Pam Slater-Price said. “It is incumbent on us now to proceed with issuing medical marijuana ID cards, after we hear from our staff on appropriate guidelines.”

Medical marijuana activists reacted yesterday by essentially saying that it's about time.

“I think this makes it clear local officials have to abide by California's medical marijuana laws,” said Joseph Elford, a lawyer for Americans for Safe Access that advocates medical marijuana use.

“We're glad they are going to comply with the law,” said David Blair-Loy, legal director of the American Civil Liberties Union of San Diego & Imperial Counties. “We think actually the law has been clear from the beginning. And every court that has considered the issue agrees with us.”

The end of the case came quietly, with the justices declining to review the appeal without comment or explanation. That is not uncommon for the high court.

The county had sued the state in 2006, contending the state law requiring counties to issue identification cards to people who have a doctor's prescription to use marijuana violated federal laws that categorize marijuana as a dangerous drug.

Federal law does not recognize medical benefits of marijuana. Thirteen states have passed laws allowing patients with chronic pain or other ailments to use the drug for treatment.

The county argued that in the conflict between state and federal law, the federal law trumped the state. That argument is based on the U.S. Constitution's supremacy clause, which says it is the supreme law of the land.

The argument found no traction in the state courts. In 2006, San Diego Superior Court Judge William Nevitt ruled against the county, and in August 2008, the state 4th District Court of Appeal upheld that ruling.

The appeals court said the identification card requirement does not conflict with the federal law, known as the Controlled Substances Act. The court said the purpose of that law “is to combat recreational drug use, not regulate a state's medical practice.”

The California Supreme Court refused to take the county's appeal of that ruling. In a last-ditch effort, the county appealed to the U.S. Supreme Court.

Some supervisors said they had hoped the court would clarify the long-running conflict in the debate between state law and federal law.

“I am disappointed the court did not take our case, but I am respectful of the court's decision,” said Supervisor Dianne Jacob, who along with Slater-Price and Supervisor Bill Horn voted in 2005 not to issue the cards.

“We were seeking a definitive ruling, in writing, that would resolve the conflict between state and federal law. In my opinion, there remains a gray area that will continue to pose challenges for law enforcement and users.”

Supervisor Greg Cox said he, too, would have preferred a ruling by the court but said in a statement “the county will certainly abide by the decision of the courts that have ruled.”

Horn also said the county will follow court rulings.

“It's still an issue I wish they would have heard,” he said.

Graham Boyd, director of a national drug litigation project for the ACLU, said the case had little chance from the start.

“It was a rather quixotic battle, and was a legal theory no one thought had much merit,” Boyd said.

Yesterday's action by the court laid to rest the contention that states could not enact their own medical marijuana laws because of the clash with federal laws, Boyd said.

The law says the identification cards are to be issued by the county health department or another health-related entity designated by the supervisors. Bunton said he did not know how soon those cards would be issued if the board approves issuing them June 16.

Most counties in the state issue such cards, but Elford of the Safe Access group said about 10 counties, including San Diego, have resisted. Elford said he now expects San Diego and San Bernardino and the other eight counties to implement the law.

Merced County initially joined San Diego and San Bernardino in the suit but dropped out after the case began. Since then, that county has begun to issue identification cards, Elford said.



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