Pubdate: Sun, 12 Nov 2006
Source: North County Times (Escondido, CA)
Copyright: 2006 North County Times
Note: Gives LTE priority to North San Diego County and Southwest 
Riverside County residents
Author: Gig Conaughton, Staff Writer
Cited: San Diego County Board of Supervisors
Cited: Americans for Safe Access
Bookmark: (Marijuana - Medicinal)


SAN DIEGO - The people have approved it. Government has struggled 
with it. And this week, the county of San Diego will mount an attack 
to overturn it.

It is California's 10-year-old, voter-approved "Compassionate Use 
Act," the law that says seriously ill people should be able to use 
marijuana to ease their pain and suffering.

On Thursday, a Superior Court judge will weigh a San Diego County 
lawsuit filed nearly a year ago that seeks to overturn the law on the 
grounds that California's voter-approved law should be pre-empted by 
federal law, which says all marijuana use is illegal.

San Diego County supervisors, in a move that angered medical 
marijuana patients and advocacy groups, and led by Supervisors Bill 
Horn, Dianne Jacob and Pam Slater-Price, voted to file suit to 
overturn the Compassionate Use Act in December.

Medical marijuana supporters say the drug can help a host of patients 
by easing pain and stimulating appetites to battle malnourishment for 
chronically ill persons.

Opponents say even if marijuana has some medicinal value, it is still 
a dangerous drug and California's law could lead to drug abuse.

State officials who will defend the law in court said they are 
confident that they will prevail, and that the county's challenge is 
old-hat, legally speaking, and will probably rejected. But county 
officials said last week that they, too, were confident.

Caught in the middle of the legal tussle are thousands of people who 
say they are sick or hurt, and that marijuana is the only drug that 
can help them cope.

"I can't believe I'm having to go through this all over again," Craig 
McClain, a Vista resident, business owner, husband, father and 
spinal-cord injury victim, said recently. "I feel like my vote never 
counted. They don't understand my pain."

Meanwhile, both supporters and opponents of the Compassionate Use Act 
say the county challenge is the most direct attack ever launched on 
the law. While it has been challenged in court before, no one has 
ever tried to get the law overthrown.

And, supporters and opponents say that the court decision handed down 
could also affect medical marijuana laws approved by voters in 10 other states.


Even though 55 percent of California's voters approved Proposition 
215, the Compassionate Use Act, in 1996, it's still largely a law in limbo.

The federal government has challenged it in court, although it has 
never tried to completely overturn it. And state and local 
governments have done little to implement it.

Prop. 215 was relatively short and simple as state ballot measures go.

It said "seriously ill" people -- people with cancer, anorexia, AIDS, 
spasticity, glaucoma, arthritis, migraines or other chronic illnesses 
- -- had a legal right to obtain or grow, and use marijuana for medical 
purposes when recommended by a doctor.

The law also mandated that doctors not be punished for recommending 
the drug. And it said the federal and state governments should work 
together "to implement a plan to provide for the safe and affordable 
distribution of marijuana to all patients in medical need."

But a month after Prop. 215 was passed, the Clinton administration 
announced that doctors who recommended marijuana would lose their 
federal licenses and could be prosecuted criminally by federal prosecutors.

The Bush administration continued that threat after President Clinton 
left office. However, it was eventually ruled illegal by a federal 
appeals court in 2002. But, the Bush administration has continued its 
aggressive stance toward California's law, and federal agents have 
raided dispensaries and carried out arrests.

State Resistance

Meanwhile, Prop. 215 has faced threats from within the state. If 
backers of the law thought the measure would give medical marijuana 
patients blanket protection from being arrested by state law 
enforcement officers, they were wrong.

Just days after Prop. 215 was passed, then-California Attorney 
General Dan Lungren issued a release to all law enforcement officers 
in the state. Lungren opposed the law, and actually wrote part of the 
ballot argument against Prop. 215. The release said that state law 
enforcement officers could still arrest people found growing, or in 
possession of, marijuana -- even if they claimed to be medical 
marijuana patients.

Lungren said Prop. 215 only gave medical marijuana patients an 
"affirmative defense" if they were arrested.

"He was basically saying, 'Arrest them and ask questions later,' " 
William Dolphin, a spokesman for Americans for Safe Access, a medical 
marijuana advocacy group, said last week.

Current state Attorney General Bill Lockyer has been more empathetic 
to the medical marijuana issue. However, officials from his office 
said last week that the state's official position remains that Prop. 
215 only offers medical marijuana patients an "affirmative defense" 
in court -- and that they can still be arrested by state law 
enforcement officers.

Dolphin, however, said that the aggressiveness of law enforcement 
officials around the state has eased. Just last year, the California 
Highway Patrol reached a court settlement with Americans for Safe 
Access for Highway Patrol officers to consider medical marijuana 
identification cards, or notes from doctors, when they discover 
patients with marijuana.

Still Up in the Air

However, a fundamental part of the Prop. 215 saga is still up in the 
air. The 1996 law urged state and federal legislators to find a way 
to safely and affordably dispense medical marijuana to patients who need it.

That hasn't really happened. Medical marijuana dispensaries have 
opened -- and closed -- around the state. But lawmakers never really 
came up with a dispensary plan.

In 2003, state legislators punted the issue over to local 
governments. Lawmakers passed Senate Bill 420, which directed 
counties to create medical marijuana registries and to issue 
identification cards. The law, which took effect in 2004, also 
stipulated how much marijuana patients and caregivers could actually 
possess. The basic idea was that the cards would make it easier for 
law enforcement officials and medical marijuana patients.

Peace officers would be able to tell who the legitimate medical 
marijuana patients were by checking identification cards. And 
patients would have a way to prove that they were legitimately using the drug.

San Diego County

But that's where San Diego County supervisors -- who formally opposed 
Prop. 215 when it was placed on the ballot in 1996 -- drew their line 
in the sand.

In November 2005, a torn Board of Supervisors voted 3-2 to defy SB 
420, and refuse to create the county's medical marijuana registry and 
ID card program.

The board's majority, Horn, Jacob and Slater-Price, said complying 
with the state's order would tell children that marijuana was OK and 
lead to increased drug abuse.

A month later, the board voted 4-0 in closed session, with Supervisor 
Ron Roberts absent, to sue to overturn Prop. 215 itself.

Meanwhile, over the last year, the county district attorney's office 
has adopted the supervisors' aggressive stance toward the law. Over 
the summer, local law enforcement officials helped federal drug 
enforcement officials crack down on, and "essentially shut down," all 
local medical marijuana dispensaries.

McClain, whose spine was crushed several years ago in a 
construction-related accident, and who has used marijuana for years 
to ease the chronic severe spasms the injury created, said the 
crackdown has been tough on patients.

"I've been using Marinol (synthetic marijuana) more, but without 
results," he said Friday. "A lot of people are suffering. It 
(Marinol) surely doesn't work like God's creation. And it's 
expensive. They're $15 a pill."

Interestingly, the county's lawsuit asks the court to overturn every 
facet of Prop. 215 and SB 420 with one exception -- the section of 
Prop. 215 that says that it is legal in California for an individual 
patient or caregiver to possess or cultivate marijuana.

However, that appears to be a legal maneuver. Officials from the 
state attorney general's office said no judge would overturn that 
section because states are given the absolute right to create their 
own laws recognizing the legality of a drug. However, they and county 
lawyers said the county's lawsuit would gut the actual mechanisms 
that make Prop. 215 viable. If successful, the only marijuana that 
would be legal would essentially be "miracle marijuana" -- nobody 
grew it, or dispensed it, one observer said.

Ironically, the county's pending lawsuit -- or the ruling that could 
come Thursday -- could possibly make it easier for medical marijuana patients.

If the judge rules against the county, it would seem that supervisors 
would then have no choice but to institute the identification card 
program, and ease off on dispensaries.

However, the county could win its case -- and throw the medical 
marijuana issue into a whole new world of doubt in California and 
around the country.

But the more likely situation, officials said, is that Thursday is 
just the first shot in a longer battle. Any judgment is likely to be 
appealed. And many feel that it's very likely that the Supreme Court 
will end up being the final arbiter. 
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MAP posted-by: Richard Lake