Pubdate: Fri, 1 Aug 2008 Source: Press-Enterprise (Riverside, CA) Copyright: 2008 The Press-Enterprise Company Contact: http://www.pe.com/localnews/opinion/letters_form.html Website: http://www.pe.com/ Details: http://www.mapinc.org/media/830 Author: Richard K. De Atley, The Press-Enterprise Referenced: The Court of Appeal ruling http://www.courtinfo.ca.gov/opinions/documents/D050333.PDF Cited: San Diego County Board of Supervisors http://www.sdcounty.ca.gov/general/bos.html Cited: San Bernardino County Board of Supervisors http://www.co.san-bernardino.ca.us/bos/ Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal) COURT OF APPEAL RULING BACKS MEDICAL MARIJUANA San Bernardino and San Diego counties' bid to overturn California's Medical Marijuana Program Act by claiming federal statutes pre-empt the 2003 state law was denied Thursday by an appellate court. In a 3-0 opinion, judges from the state's 4th District Court of Appeal in San Diego also rejected San Bernardino County's claim that the medical marijuana identification card provisions of the law violate the California Constitution. The appellate judges said the challenged provisions of the state Medical Marijuana Program Act "do not positively conflict with" the federal Controlled Substances Act, which classifies marijuana as a dangerous drug with no medical use. The state Medical Marijuana Program created a system for counties to investigate applicants, issue user cards and keep those on file. People are eligible for the cards if a physician has recommended marijuana as a means to treat symptoms of illnesses such as cancer and glaucoma, and chronic pain. San Bernardino County has refused to issue the cards. Sheriff Gary Penrod has said it is a conflict, especially with officers cross-deputized to enforce federal law. The judges didn't see it that way. "Congress has the power to permit state laws that, although posing some obstacle to congressional goals, may be adhered to without requiring a person affirmatively to violate federal laws," said the opinion by Associate Justice Alex C. McDonald. "This ruling is a clear statement that the counties of San Bernardino and San Diego must abide by the state's medical marijuana laws," said Adam B. Wolf, an American Civil Liberties Union attorney representing National Organization for the Reform of Marijuana Laws. "The counties can't shirk their duties under state law, to the detriment of thousands of sick and dying patients," Wolf said. Officials for the counties said the decision missed the mark. They also said it was too early to declare whether one or both would appeal the decision to the California Supreme Court. "County Counsel's initial take on this is that the court sidestepped the issue on the matter of state and federal law that was really at the heart of what the county wanted to be determined," said San Bernardino County spokesman David Wert. San Diego County senior Deputy Counsel Thomas D. Bunton said the justices adopted the wrong test for the federal-state conflict. Bunton said the court wanted the county attorneys to show it was physically impossible to comply with both laws; "They should have looked at whether it was an obstacle to the purpose of Congress. If it authorizes people to engage in conduct to violate federal law, then it is pre-empted," Bunton said. San Bernardino County's lawyers will consult with Penrod, with San Diego County attorneys, and advise the San Bernardino County Board of Supervisors about whether to appeal the case, Wert said. The county should stop its campaign, said Lanny Swerdlow, a registered nurse and longtime cannabis advocate. "They need to drop out of it, stop wasting taxpayers' money, get with the program and start issuing ID cards to its citizens," he said Thursday. - --- MAP posted-by: Richard Lake