Pubdate: Wed, 25 Jan 2006
Source: San Diego City Beat (CA)
Copyright: 2006 San Diego City Beat
Contact:  http://www.sdcitybeat.com/
Details: http://www.mapinc.org/media/2764
Author: Kelly Davis
Note: The ACLU's press release contains links to all the documents 
related to the case at 
http://www.aclu.org/drugpolicy/medmarijuana/23587prs20060124.html
Cited: San Diego County Board of Supervisors 
http://www.sdcounty.ca.gov/general/bos.html
Cited: Marijuana Policy Project http://www.mpp.org
Cited: Americans for Safe Access http://www.safeaccessnow.org
Cited: San Bernardino County Board of Supervisors 
http://www.co.san-bernardino.ca.us/bos.htm
Bookmark: http://www.mapinc.org/topics/Compassionate+Use+Act
Bookmark: http://www.mapinc.org/topics/San+Diego+County
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/people/Bill+Lockyer

GOING NOWHERE

ACLU ATTORNEY SAYS ASSISTED-SUICIDE RULING SHOWS FUTURE OF COUNTY'S POT LAWSUIT

A lot happened in 1961: East Germany erected the Berlin Wall, 
President Kennedy authorized the ill-fated Bay of Pigs invasion and 
West Side Story captured the Oscar for Best Picture.

And in New York, U.N.-member nations signed on to an international 
treaty, the so-called Single Convention on Narcotic Drugs, that was 
intended to curb international drug trafficking, stem drug addiction 
and provide a framework for countries to adopt their own drug laws. 
Nine years later, the U.S. Congress passed the Controlled Substances 
Act (CSA), which grouped drugs into schedules according to whether or 
not a drug had any medicinal value. Cannabis made it into Schedule I, 
the utmost "not" category.

In mid-December, the San Diego County Board of Supervisors voted 
4-to-0--Supervisor Ron Roberts was absent that day--to sue the state 
of California in an attempt to overturn the state's 10-year-old 
voter-approved initiative, Proposition 215, or the "Compassionate Use 
Act." The law allows individuals to use marijuana if they have a 
qualified doctor's recommendation. San Diego County is arguing that 
the state law not only runs afoul of federal policy but also 
conflicts with the 45-year-old international treaty.

The county's choice to cite the 1961 U.N. treaty in its lawsuit, 
filed in federal court Jan. 20, has medicinal-marijuana advocates 
perplexed. A small number of countries that were signatories to that 
treaty have since legalized pot or passed laws allowing medicinal use 
of it--the Netherlands being an example of the former and Canada an 
example of the latter, said Bruce Merkin, spokesperson for the 
Marijuana Policy Project.

County Counsel John Sansone did not respond by press time to an 
e-mail from CityBeat asking about Merkin's point.

And though the U.S. Supreme Court last year upheld the federal 
government's right to enforce the Controlled Substances Act in 
California, U.N. regulators haven't come after California nor cited 
any of the other 10 states that allow the use of medicinal marijuana, 
Merkin noted.

"I guess we should be grateful that we have the [San Diego County] 
Board of Supervisors since none of the people responsible for 
enforcing that treaty over the past 10 years thought to say the 
treaty doesn't allow California to do this," said Alan Hopper, an 
attorney with the National ACLU Drug Law Reform Project.

San Diego County Board of Supervisors Chairman Bill Horn, perhaps the 
county's most outspoken critic of medicinal-marijuana laws, declined 
CityBeat's request for an interview, but in a prepared statement, 
Horn argued that "federal law makes the cultivation, distribution and 
used of marijuana for any purpose illegal.... We believe federal law 
takes precedent over state law."

Horn has publicly drawn a link between illicit drug use and Prop. 
215, saying support of the state law sends the wrong message when it 
comes to illegal drugs.

The supervisors' lawsuit ostensibly stems from a 2004 state law that 
says counties must fund and administer a medical marijuana ID-card 
program. Medicinal marijuana users with a legitimate doctor's 
recommendation would then use the ID card as form of proof should 
they be detained by the police for marijuana possession. The ID-card 
law, also known as SB 420, defined how much marijuana a person could 
legally possess. Though taken to task by the county's civil grand 
jury for lagging on implementing the ID-card program, the Board of 
Supervisors initially planned to ignore the law, arguing that SB 420 
violated the federal ban on marijuana. A month later, the supervisors 
opted to go after SB 420's parent law.

Medicinal-marijuana advocates CityBeat spoke with when the county 
first decided to go after Prop. 215 pointed out that although Prop. 
215 does not offer medicinal-cannabis users protection from federal 
prosecution under the Controlled Substances Act, the supervisors' 
attempt to overturn the law wholesale was an "overreach," said Hilary 
McQuie, spokesperson for Americans for Safe Access.

The lawsuit has prompted a group of medicinal-marijuana advocates to 
try to get a term-limits initiative on the November ballot. The 
supervisors aren't subject to term limits and all five have held 
office for at least a decade. Rudy Reyes, a young man who was 
severely burned in 2003's Cedar fire and who has since come to rely 
on marijuana for pain management, helped spearhead the ballot initiative.

"If long-term ideologies are going to hurt sick and dying people, we 
don't need long-term lawmakers," Reyes told CityBeat. He said he's 
considering running against Supervisor Dianne Jacob, who's up for 
reelection this year. Reyes said county sheriff's deputies raided his 
home last month, taking all his marijuana plants and a cannabis-based 
lotion he uses. No charges were filed against him, he said.

State Attorney General Bill Lockyer has been a staunch advocate of 
Prop. 215, arguing in a 2003 legal brief that a state should be 
allowed to pass laws that best serve the needs of its citizens. The 
Controlled Substances Act, he argued, is outdated, passed before 
California was hit by "the ravages of AIDS."

The ACLU's Hopper delivered a letter to the Board of Supervisors and 
Sansone on Jan. 19, arguing against the validity of the county's 
lawsuit. A second letter was delivered Jan. 24.

In the Jan. 19 letter, Hopper drew a comparison between last week's 
Supreme Court decision on Oregon's assisted-suicide law and 
California's right to allow the medicinal use of marijuana. The 
Supreme Court ruling upheld Oregon doctors' ability to prescribe a 
lethal amount of drugs to terminally ill patients. Former Attorney 
General John Ashcroft had challenged the Oregon law, arguing it 
violated the Controlled Substance Act.

Dick Cheney hunting pal and right-wing conservative U.S. Supreme 
Court Justice Antonin Scalia--though part of the three-judge minority 
that argued against the Oregon law--said federal law nevertheless 
doesn't nullify Oregon's assisted-suicide law.

It's a complicated argument, but Hopper put it this way: only if 
Oregon law required doctors to prescribe lethal narcotics to 
terminally ill people or, likewise, if California law said patients 
are required to use medicinal marijuana would there be the sort of 
state law/federal law conflict the county supervisors allege is going 
on with Prop. 215. It's called a "positive conflict," he said.

"If there was some requirement under state law that in order to 
follow [that] law you would have to violate federal law, that would 
be a conflict," Hopper said. "That's not the same as a state law that 
says we're not going to make [medicinal marijuana] a crime. Even 
though federal law makes it a crime to possess and use marijuana even 
if you're a medical-marijuana patient, there's no direct requirement 
under state law that puts somebody into the bind that they'd have to 
break federal law [in order to comply with] state law....

"The state law at issue would have to require some action that 
specifically violated federal law," he said. "Scalia, who dissented 
from majority opinion and who is no great lover of assisted suicide 
or medicinal marijuana, says that preemption [of state law by federal 
law] doesn't even apply here because nobody's ever argued that the 
Controlled Substances Act preempts state drug laws."

Hopper said he believes the county's lawsuit will be thrown out of 
court based on a 25-year-old law that says a political subdivision of 
a state--a city or county--can't challenge state law.

On Tuesday, the ACLU intervened in the county's lawsuit on behalf of 
the state. Also, the San Bernardino County Board of Supervisors 
intervened on San Diego County's side. 
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MAP posted-by: Richard Lake