County pursues medicinal marijuana case

Board wants to resolve state-federal conflict

By Jeff McDonald

UNION-TRIBUNE STAFF WRITER

October 27, 2008

Despite batting .000 against a lineup of lawyers and judges across California, San Diego County is pressing its long-shot lawsuit against state medical marijuana laws toward the U.S. Supreme Court.

The Board of Supervisors voted to petition the nation's top court even before the California Supreme Court declined Oct. 16 to hear the county's argument that the state laws should be overturned.

MEDICAL MARIJUANA The San Diego Union-Tribune contacted each San Diego County supervisor about the board's decision to ask the U.S. Supreme Court to hear its challenge of state medical marijuana laws. Here are their responses: Greg Cox: “When you get into a conflict between state and federal law, the only alternative is to go to court.” Bill Horn: “Whether or not (federal agents) can enforce their law, that's their choice. My problem is I have something that's in black and white which my attorneys tell me is in conflict.” Dianne Jacob: “Handing out ID cards at the same time the federal government considers marijuana illegal is not fair to those who think the cards would protect them.” Ron Roberts: Did not respond. Pam Slater-Price: “I do not consider I would be doing my duty if I accepted the idea that we were to issue these licenses for so-called medical marijuana. The way the law is set up practically anything qualifies, including having a bad hair day.”

For nearly three years, the supervisors have persisted in their legal fight rather than direct county health officials to issue identification cards to qualified medical marijuana patients as required by state law.

“This case is not about questioning the medicinal value of marijuana,” Supervisor Dianne Jacob said. “It's about resolving the conflict between state and federal law.”

For patients who rely on marijuana to relieve symptoms of cancer, AIDS and other illnesses, the ongoing resistance feels more like a slap in the face.

“What the county has been doing is straight-up prejudicial,” said Rudy Reyes, who was severely burned in the Cedar fire and smokes marijuana to relieve his pain.

“They don't want to see this as a viable medication,” said Reyes, who felt so strongly about the issue that he tried to unseat Jacob in the last election.

In 1996, 56 percent of California voters supported an initiative allowing sick and dying patients to grow and use marijuana to ease their symptoms. The law has vexed enforcement officials ever since because the drug remains illegal under the U.S. Controlled Substances Act.

The state sought to clarify its medical-use allowance in 2004 and directed counties to issue identification cards to qualified patients. The cards are designed to help police determine who is using marijuana legally and who is abusing the drug.

On a 3-2 vote in November 2005, county supervisors went against a staff recommendation that cards be issued. Greg Cox and Ron Roberts were in the minority on that vote, but the following week, when the board opted to challenge the state law in court, Cox sided with the majority. Roberts was absent.

“I supported the effort to issue the medical marijuana cards, but clearly in this case we have a conflict with federal law that says it's a controlled substance,” Cox said in an interview last week. “I felt the responsible thing to do was get through the courts.”

County lawyers filed their case in early 2006. San Bernardino and Merced counties joined as co-plaintiffs. Late that year, San Diego Superior Court Judge William R. Nevitt rejected the counties' legal arguments, ruling in favor of the state and two patient-advocacy groups.

San Diego and San Bernardino counties appealed, but Merced opted out. Instead, supervisors there began issuing the ID cards.

“We felt like we were going to be throwing good money after bad,” said Kathleen Crookham, chairwoman of the Merced County Board of Supervisors. “How far can you go? We thought we'd cut our losses and move on.”

About 30 Merced County residents have applied for and received the cards, Crookham said. Since then, “it's kind of quietly just moved on.”

San Diego County Supervisor Bill Horn remains unconvinced, however. He does not believe there is any medicinal value in marijuana.

“I don't think it's right, to be honest with you,” he said. “Issuing the cards is condoning the use of marijuana. That's not a message I personally want to send.”

Legal experts tend to agree with the courts that rejected the position staked out by San Diego and San Bernardino counties. Those judges and scholars say the bottom line is that state laws do not prevent federal agents from enforcing the Controlled Substances Act, which classifies marijuana as among the most dangerous known drugs.

“California can do whatever it wants to do and the U.S. government can do whatever it wants to do,” said University of San Diego law professor Shaun Martin, who has argued three cases before the U.S. Supreme Court and prevailed once. “The counties' position that there's a conflict on this is a minority – a very minority – view.”

Constitutional law expert Erwin Chemerinsky said the U.S. Supreme Court generally reviews only those cases that have divided lower courts.

“There's a lot of misunderstanding about federal law and state law and pre-emption,” said Chemerinsky, the founding dean of the University of California Irvine law school. “What the state law does is say it's not a state crime to have medical marijuana.”

The counties have 90 days from Oct. 16 to file what's known as a petition for a writ of certiorari, which formally requests a review by the U.S. Supreme Court. If the court agrees to consider the case, a ruling could come in 2009 or 2010.

More than 7,500 cases are appealed to the nation's top court each year; only 1 percent to 2 percent of the petitions are granted. Roughly half of those involve criminal cases, so the county's chances of being heard are slim.

No one in county government would estimate how much time and money has been spent working to overturn California medical marijuana laws.

Senior Deputy County Counsel Thomas Bunton, who is supervising the legal strategy, noted that his office has not retained any outside lawyers. But he declined to detail the public resources dedicated to the lawsuit.

“This hasn't cost the county any additional money,” Bunton said.

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