Garden Grove's tab on medical marijuana case reaches $219,000

June 17, 2009

Deepa Bharath, Orange County Register

GARDEN GROVE – The city has paid out $139,000 in attorney's fees to medical marijuana advocates, bringing to an end a four-year court battle in which the city fought the return of a patient's 8 grams in spite of repeated court decisions ordering the city to give his marijuana back.

Americans for Safe Access received the check Wednesday as part of a settlement agreement in the case involving Felix Kha, whose marijuana was seized during a traffic stop. He was issued a citation.

Including this payment, the city has spent about $219,000 on this case, City Attorney Thomas Nixon said today.

Joe Elford, chief counsel for Americans for Safe Access, said the outcome of Kha's case is a victory for medical marijuana patients' rights.

"It's unfortunate that the city of Garden Grove felt the need to spend $250,000 over marijuana that was worth about $200," he said, referring to his estimate of what the city has paid. "They made it extremely difficult for us when they should have returned the marijuana to Mr. Kha three years ago."

City officials say Kha did not have documentation for the marijuana at the time police stopped him, but later produced documentation. The citation was dismissed by an Orange County Superior Court Judge.

But the city of Garden Grove fought it, maintaining that the marijuana should not be returned because federal law lists marijuana as an illegal substance.

The biggest legal challenge before the city was this dichotomy between state and federal law when it comes to the use of marijuana for medical purposes.

The case has turned out to be a "disaster" for Garden Grove, said City Councilman Bruce Broadwater.

"I don't think that we should have spent so much money on an issue where the law is so fuzzy," he said. "To be honest, this one got by us. We, the city council, should have been more savvy and stopped when we should have."

Broadwater acknowledged that City Council members "went along" with the police department on this matter and said they should not have.

Garden Grove police Chief Joseph Polisar said the City Council unanimously supported the decision to move forward with the case. Nothing was done without the council's wholehearted approval, the chief said.

It would be easy to fix this legal mess if marijuana was taken off the schedule of narcotics at the federal level, he said.

"It would be a good thing to ask our federal representatives why they haven't done that," Polisar said.

Elford said he does not accept the argument that the city was following federal law.

"They're simply using federal law as an excuse not to follow state law," he said.

Medical marijuana was legalized in California after the passage of Proposition 215 in 1996. But federal law still deems marijuana a narcotic.

As for the expenses incurred by the city, it was the result of miscommunication between city staff and the legal team, Polisar said.

"I'm not blaming anyone here," he said. "But staff was not advised as to what the other side's legal expenses were. We were not afforded the opportunity to have that discussion. We didn't have information available to us to make an informed decision on how far to take this case.''

In Kha's case, the lower court order was upheld on appeal. Both the California Supreme Court and the U.S. Supreme Court refused to review the decision.

Nixon said Kha's attorneys sought more than $272,000 in fees, but eventually settled this week for $139,000.

Nixon pointed out that at the time of his traffic citation, Kha had absolutely no documentation to show that the marijuana he had was for medical purposes.

"After the fact, he probably paid a doctor to get the documentation he needed to get his marijuana back," Nixon said.

The city had argued that because the seizure was legal in lieu of Kha's documentation, the marijuana did not have to be returned.

Nixon said he believes it is interesting that the Appellate Court stated in its ruling that the city should return to Kha a substance "which is illegal to possess under federal law."

In October, Garden Grove City Council members voted 4-1 to ban medical marijuana dispensaries in the city. There was one known dispensary operating out of Garden Grove. That dispensary, well-known among medical marijuana users as Unit D, is still operating in Garden Grove at that same location. In fact, their business license was renewed by the city in February.

Broadwater said he is surprised to learn that the clinic is still operating in the city. He voted in favor of the ban.

"But if they came back before the council, I wouldn't even oppose it," he said. "The law, when it comes to this issue, is simply not on our side."

Congressman Dana Rohrabacher, a strong proponent of changing federal law to allow use of marijuana for medical and personal use, said he and other members of Congress are working to end this dichotomy between federal and state law.

"I believe federal laws relating to marijuana especially when they are different from state laws, are counter-productive," he said.

But to spend $250,000 to prevent an adult from consuming a small amount of marijuana for medical purposes or otherwise is nonsensical, Rohrabacher said.

"Anybody who can say with a straight face that spending that amount of money on this matter in a time when resources are tight, cannot be taken seriously," he said.

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