The San Diego County Board of Supervisors has never liked California's medical marijuana law, and last Friday, rather than implement an ID card and registration program as required by the law, it made good on its threat to file a federal lawsuit seeking to overturn it. Reaction was swift, as major drug reform and civil liberties groups and patients fought back on two fronts in a battle the Board may end up regretting having started.
The board that decided last week to try to overturn the law is the exact same group of elected officials who called Proposition 215 "bad law" when it was passed by California voters in 1996. Now, while supervisors led by Chairman Bill Horn claim they only want to clarify contradictions between state and federal law, their lawsuit, if successful, would effectively kill the Compassionate Use Act.
"We opposed Prop. 215 when it came up; that isn't the point," Horn said. "The issue is, the state's asking the county to do something here that they know darn well is illegal... don't ask us to break federal law."
The county's legal argument is that the medical marijuana law violates both the 1961 United Nations Single Convention on Narcotics and the federal Controlled Substances Act. County Attorney John Sansone argues in the suit that the US Constitution's "Supremacy Clause" (Article Six) means California's medical marijuana cannot stand because it is in contradiction to federal drug laws.
But attorneys opposing the lawsuit point out that claims that federal drug law or the UN convention prevents a state from allowing the medicinal use of marijuana are so weak that Justice Department lawyers refused to raise them back when they challenged the California law in 1996. But before matters even get that far, the groups argue that the county has no standing to sue the state in federal court and that the lawsuit will be soon be dismissed.
"We are very confident this will be thrown out of federal court," said ASA executive director Steph Sherer. "We believe the county has no jurisdiction to file the lawsuit. It's just a waste of everyone's time. I expect this will be over and done with within 90 days. We expect Attorney General Lockyer to file a motion to dismiss -- he has two weeks from now -- and we're confident he will do everything he can to protect the state law, but just in case we are intervening to ensure the rights of patients are addressed."
"We're going to defend state law," Lockyer spokesman Nathan Barankin assured DRCNet Thursday. "We have until February 9 to file our answer to the lawsuit. While we're not going to say too much about what we're going to say in court, I will say there is a real serious question about whether San Diego has standing to file suit in the first place."
Still, the intervenors aren't taking any chances. "The stakes are too high for medical marijuana patients to depend on Gov. Schwarzenegger and the Department of Health Services to defend their interests in court," said Allen Hopper, senior staff attorney with the ACLU Drug Law Reform Project. "These patients and their doctors need to know that someone is looking out exclusively for their interests."
Among those on whose behalf the motion to intervene has been filed are Wendy Christakes, 29, a San Diego resident who uses medical marijuana to treat chronic pain from herniated discs and back surgery; Pamela Sakuda, 58, a rectal cancer patient; and her husband and primary caregiver Norbert Litzinger. In a sign of the statewide implications of the county's lawsuit, also signing on to the motion were Valerie Corral of the Wo/Men's Alliance for Medical Marijuana (WAMM), which was raided by the DEA in 2002 and Dr. Stephen O'Brien, an Oakland physician who specializes in HIV/AIDS treatment and believes many of his patients benefit from the medical use of marijuana.
"Medical marijuana patients are running out of time," said Christakes. "While the supervisors play politics and waste our money on frivolous lawsuits, we have to find a way to survive."
Some activists went as far as welcoming the lawsuit. "Good. They're going to lose," said California NORML head Dale Gieringer. "It's about time we had a federal court decision that went our way. It is a stupid, losing battle those supervisors got themselves into, and I'm glad to see that the ACLU, ASA, and DPA have jumped in to intervene. I would be shocked if the supervisors prevailed," he told DRCNet.
"The board is out there by themselves, and they know it," said Margaret Dooley of DPA's Southern California office. "They think this is their kingdom, but this is going to waste a lot of time and money and people will be hurting. Their decision to continue with the suit shows blatant disregard for the law and the will of their constituents," she told DRCNet.
And some of those constituents are vowing to take political revenge on the board by getting it removed from office via the term limits initiative. Last week, medical marijuana patient Rudy Reyes, backed by MPP and ASA, filed a letter of intent to get the initiative rolling, saying the supervisors had "lost touch with constituents." At Tuesday's board meeting, activists offered to drop the initiative if the board would drop the lawsuit, to no avail.
"We gave them one last chance to withdraw their lawsuit at the board meeting, and they refused to do so, said ASA's Sherer. "We told them we wouldn't start gathering signatures if they dropped it, but now we will run the term limits initiative. And we'll keep going even if the case gets kicked out of federal court. We have to let elected officials know there is a downside to going after medical marijuana patients. If the initiative is successful, it will be provable retribution for opposing medical marijuana."