Bay Area Reporter - December 21, 2006
Liz Highleyman

"Medical cannabis patients everywhere can breathe easier," said Steph Sherer, executive director of Americans for Safe Access, a patient advocacy group, following the December 6 decision. "States can act to protect patients, and local officials are now on notice that they cannot hide behind the federal reluctance to acknowledge medical use."

San Diego County will appeal the decision.

The state's Compassionate Use Act, better known as Proposition 215, passed by a substantial margin in 1996. The law allows individuals with illnesses such as AIDS, cancer, and multiple sclerosis to use cannabis for medicinal purposes with a doctor's recommendation. An additional law passed in 2003 requires counties to implement a patient identification card program to enable police to identify legitimate medical users.

The federal government, however, does not recognize the laws of California and 10 other states, maintaining that marijuana has no legitimate medicinal value and that its use is illegal under all circumstances. The U.S. Supreme Court ruled in June 2005 that the federal Controlled Substances Act trumps state medical marijuana laws, but did not declare such laws invalid.

This past February, the San Diego County Board of Supervisors filed a lawsuit against the state, claiming that California could not require the county to implement the patient ID card system, since the state law is at odds with federal policy. San Bernardino and Merced counties later signed on to the suit.

"California authorized use of marijuana for medical purposes, but federal law has said marijuana has no legitimate medical use," said San Diego County Counsel Thomas Bunton. "California authorizes, and in fact encourages, people to use marijuana, when that is forbidden by federal law."

On November 16, Superior Court Judge William R. Nevitt tentatively ruled that this discrepancy does not prevent California from permitting medicinal cannabis use, as long as the state does not require residents or officials to act in ways that are directly prohibited under federal law.

This month, Nevitt reaffirmed his preliminary decision that the patient ID card system does not constitute a "positive conflict" with federal law.

The state attorney general's office, ASA, the American Civil Liberties Union, and the Drug Policy Alliance argued in favor of the Compassionate Use Act. The advocates represented Stephen O'Brien, an Oakland physician who specializes in HIV/AIDS care, and a group of patients who use medical cannabis, including one who died after the lawsuit was filed.

"This is a vital win for patients and a resounding step forward for the medical marijuana movement," said ACLU attorney Adam Wolf, commenting on the most recent court decision.

"This ruling upholds both the will of the voters and the legislature's attempt to help implement it," added ASA chief counsel Joe Elford. "The protections provided to patients under state law have been confirmed."

Deputy state Attorney General Leslie Lopez said Congress never intended to require states to enact identical laws.

"We are pleased that the court ruled that San Diego must follow California's medical marijuana law," said Dale Gieringer of the California chapter of the National Organization for the Reform of Marijuana Laws. "The ID cards will save the county money by avoiding needless arrest and prosecution of legal patients."

The week after the ruling was handed down, however, the San Diego County Board of Supervisors voted 4-1 in a closed session to file an appeal.

According to board Chairman Bill Horn, the judge did not directly rule on whether the state or federal government has ultimate authority over marijuana policy. "[Nevitt] kind of gave us the politically correct opinion that we ignored the will of the voters," he told the San Diego Union-Tribune. "Maybe the 4th District [Court] will give us an answer."

In contrast, Merced supervisors decided not to appeal Nevitt's ruling, and the county will begin issuing patient ID cards in accordance with California law.

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