Editorial: Breaking the rule of law

June 22, 2009

Editorial, Orange County Register

It would be nice if members of the City Council, the city attorney and the police chief were required to pay the approximately $250,000 the city of Garden Grove has squandered trying to express what might best be presented as its resentment that the voters of California approved a policy toward the medicinal use of marijuana that is different from the federal government's policy. Unfortunately, the city's taxpayers will have to pay the bills for its officials' obtuseness.

The expense derives from the city's refusal, even when ordered by a court, to return marijuana to one Felix Kha, who was a qualified medical marijuana user under state law when he was pulled over on a routine traffic stop in 2005. The ensuing citation for marijuana possession was dismissed when Mr. Kha produced documentation of a physician's recommendation.

There is controversy over whether Mr. Kha had a recommendation with him when he was stopped. The police report on the incident says the following:

"He said he had a doctor's referral that allowed him to be in possession of the marijuana. Kha handed me a piece of paper that indeed looked like a referral, but I was not able to verify its legitimacy. I read the document and did not find any mention of it being a medical prescription." That's not surprising. The state law permitting physician-authorized patients to possess marijuana refers to a "recommendation," not a "prescription." Prescriptions are regulated under federal law, and writing one for marijuana probably would be a federal violation.

At any rate, when Mr. Kha asked that his medicine be returned and a court so ordered, Garden Grove refused. The City took the case to the state appellate level and lost. The California Supreme Court and the U.S. Supreme Court declined to hear the city's appeal.

That these stubborn activities involved something other than devotion to the rule of law is suggested not only by the fact that the city lost, but by the underlying law in the situation. State and local authorities are directed by the state constitution to enforce California law, even if there is an apparent conflict with federal law, unless and until a federal court declares that federal law overrides state law. No court ever did so, although San Diego County carried a case to the highest levels of the judiciary branch and lost.

The state appellate decision also made it clear that when a court hands down an order, police officers and other officials are required to act strictly as agents of the court, which absolves them of any claim that they were violating federal law, as Garden Grove claimed to be concerned about.

Garden Grove's case was weak from the beginning. Joe Elford, attorney for Americans for Safe Access, which represented Mr. Kha and received attorneys' fees, told us that after the California Supreme Court declined to review the lower court's decision ASA talked to Garden Grove about settling without requiring attorneys' fees. But Garden Grove would have none of it, he said, insisting on giving the U.S. Supreme Court a try.

It's too bad Garden Grove wasted so much time and trouble on this case. And it's too bad the taxpayers got the bill.



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