CONFLICT OF INTEREST?

A Look at the County's Assault on California's Medical-Marijuana Law

San Diego, CA -- A month ago, it was only going to be SB 420, the
2004 state Senate bill that ordered counties to provide ID cards to
medical-marijuana patients.

What a difference a few weeks makes. On Tuesday, Dec. 6, the San
Diego County Board of Supervisors voted to step up their attack on
the Senate bill with a concurrent legal challenge that seeks to
overturn Proposition 215, also known as the Compassionate Use Act, a
1996, voter-approved initiative that says chronically ill people with
a doctor's recommendation can use marijuana for medicinal purposes.
Prop. 215 won by a 12-point margin statewide and even garnered
majority support in traditionally conservative San Diego County.

County Counsel John Sansone said his office expects to file the
lawsuit in federal court sometime after the first of the year. The
lawsuit, Sansone said, will argue that the Controlled Substances Act,
the law passed by congress in 1970 that classified marijuana as a
Schedule I drug-in the same category as PCP, LSD and the so-called
"date-rape" drug, GHB-supercedes any state law that legalizes
marijuana for medical use. Schedule I drugs are considered to have no
medical value.

"The question is whether or not [Prop. 215] is written in such a way
that it conflicts with federal law," Sansone said. "Our argument is
going to be that we believe they conflict to the point of crossing the line."

Sansone said he advised the supervisors on the pros and cons of
filing such a lawsuit but wouldn't comment further, citing
attorney-client privilege. He said that from the beginning, when the
supervisors were only going to challenge SB 420, he'd told them it
would be an "uphill battle."

"But we've had difficult uphill battles before and won them, and some
we've lost," Sansone said, adding that his own staff would handle the
case. "Taxpayers aren't going to pay any more or any less for the
attorney staff time."

A spokesperson for the state attorney general's office, which would
be defending the law, declined to comment on the case until she saw
the actual complaint. Attorney General Bill Lockyer, however, has
supported Prop. 215 in the past, arguing that the Controlled
Substances Act is an antiquated law, passed before "the ravages of AIDS."

"States are in, by far, the best position to determine whether and
under what circumstances the use of cannabis by seriously ill
patients should be permitted," Lockyer wrote in a 2003 legal brief.

Prop. 215 has always been on shaky ground. Poorly defined from its
inception and passed on Dan Lungren's watch-the former state attorney
general who vehemently opposed the ballot measure-medical-marijuana
supporters and patients have looked to state and local officials to
give the law some structure: How much marijuana can an individual possess?

How is law enforcement to handle a person possessing or growing
marijuana for medical use? And, more importantly, how are people with
a doctor's recommendations supposed to get marijuana when its sale
and purchase remains illegal under state law? Cannabis dispensaries
are regularly subjected to raids, evident in the Monday afternoon
raids of 13 San Diego County dispensaries by a swarm of federal Drug
Enforcement Administration agents with the aid of local law
enforcement (please see accompanying story, "It's 'warfare'"). [http://www.mapinc.org/drugnews/v05.n1953.a06.html}

Lungren made sure the new law was as narrowly defined as possible,
but he never directly sought to overturn it. Dale Gieringer, who
heads California NORML (National Organization to Reform Marijuana
Laws), said Lungren consulted with federal officials and ultimately
decided not to challenge the law. "Lungren declared that 215 was
constitutional, since states have a right to decide which laws to
enforce," Gieringer said. He added that a subsequent challenge
targeting doctors who recommended marijuana to patients (Conant v.
Walters) was struck down in federal court in 2002.

In 2003, Angel Raich and Diane Monson sued the federal government to
block DEA agents from seizing marijuana from qualified patients. In
June, the U.S. Supreme Court upheld the federal government's right to
do so, but, said Randy Barnett, a Boston University law professor who
was on Raich and Monson's legal team, the ruling in no way affected
California's medical-marijuana laws.

The county supervisors' pending lawsuit will be the first that seeks
to kill the Compassionate Use Act wholesale, said Hilary McQuie,
spokesperson for American for Safe Access, a national organization
that seeks to protect patients' rights to use marijuana for medicinal purposes.

Despite the Bush administration's opposition to state
medical-marijuana laws (10 states currently have such laws), Glenn
Smith, a professor at San Diego's California Western School of Law,
said a challenge to a state law must come from within the state. "The
federal government can't bring a lawsuit to stop an unconstitutional
state law. It has to be somebody who is affected by that law and
injured by it."

Smith said the challenge can't be based in theory-the supervisors
will have to prove someone is, in fact, negatively affected by the
law. They could argue, Smith said, that "they're being required to
spend money by this state law in a way that is a waste to taxpayers' money."

County Supervisor Bill Horn, easily the most vocal critic of medical
marijuana, has said that any support for Prop. 215 or SB 420 would
send the wrong message, especially to kids. He went so far as to
compare the supervisors' stand against medical-marijuana laws to Rosa
Parks' stand against segregation laws. In June, however, the county
grand jury slammed the supervisors for failing to implement SB 420,
saying the board had been "blinded by its prejudices against medical
marijuana."

"These people are not in the times; they're living in the Reefer
Madness days," said Mark Bluemel, a San Diego attorney who's worked
on medical-marijuana cases, including that of Steve McWilliams.
McWilliams, perhaps San Diego's most outspoken proponent of medical
marijuana, committed suicide in July after a federal judge, under
terms of McWilliams' bail, denied him the ability to use marijuana.

McWilliams was severely injured in a 1992 motorcycle accident that
left him with chronic migraines and neck pain. He was arrested by DEA
agents in 2002 and charged with growing 25 marijuana plants in his
backyard, some of which belonged to his partner, Barbara MacKenzie,
who suffers from degenerative spinal disorder.

Marijuana Policy Project spokesperson Bruce Merkin said that even
though the Raich ruling said state medical-marijuana laws don't offer
protection from federal prosecution, "that's a very different thing
from saying states are obligated to enforce federal medical-marijuana laws.

"So far as we can tell, the county is whistling in the dark," Merkin
said of the challenge to Prop. 215. "But I think the bigger question
is why the county supervisors think that they should defy the will of
their own voters?

"We have cases that date back to the fugitive slave law," he said,
"back to the pre-Civil War days in which there were disputes over
whether states had to carry out federal statutes, and it's always
been very clear that they don't. State and local laws can go in
opposite directions."

Barnett, the Boston law professor, called the supervisors' argument
"frivolous."

"No federal court would sustain it," he said, "and I would ask for
sanctions against anyone who raised it."