SAN BERNARDINO, SAN DIEGO COUNTIES IN COURT OVER MEDICAL MARIJUANA

SAN DIEGO - San Bernardino and San Diego counties argued in court
Tuesday that California's medical marijuana plan violates federal law
and the state constitution, while opposing attorneys argued the state
is within its rights to regulate the substance.

The exchanges came in a crowded courtroom before a three-judge panel
of the state 4th District Court of Appeal in San Diego.

The jurists took the matter under submission and have 90 days to make
their ruling. Their decision can be appealed to the state Supreme Court.

Defending the state's marijuana laws was a lawyer from the California
attorney general's office, an American Civil Liberties Union lawyer
representing the National Organization for the Reform of Marijuana
Laws and a lawyer representing patients who use marijuana.

California voters in 1996 legalized the use of marijuana to treat
symptoms of illnesses such as cancer and glaucoma, and chronic pain.
Prop. 215 was passed by 56 percent of voters.

The two counties are not trying to overturn that initiative.

But they argue that subsequent legislation, the Medical Marijuana
Program, which created a system for counties to investigate
applicants, issue user cards and keep those on file, puts the
counties in direct conflict with the federal Controlled Substances Act.

San Bernardino County has not issued any user cards as officials
await the outcome of the lawsuit. Since January 2006, Riverside
County has issued 1,000 cards to patients and their caregivers. That
number includes renewals, which must be done annually.

Federal law classifies marijuana as a dangerous drug with no medical
use. San Bernardino County Sheriff Gary Penrod has said the law
created conflicts and ethical issues, especially with his officers
who are cross-deputized to uphold federal law.

"There is a big difference between decriminalizing marijuana and
authorizing its use ... in violation of federal law," argued San
Diego County senior Deputy Counsel Thomas D. Bunton.

"Congress has declared that marijuana has no medical use, so using
marijuana under these circumstances is drug abuse."

But states have long practiced authorizing and enforcing laws that do
not match federal law, argued ACLU/NORML attorney Adam B. Wolf.

"The counties' position would imply the invalidity of hundreds, if
not thousands, of state statutes," Wolf told the judges. Wolf quoted
U.S. Supreme Court Justice Antonin Scalia's comment that there has
been countless times where states have not criminalized issues the
same way as the federal government.

"It's a bedrock principle of federalism" for states to be allowed to
determine issues such as how to regulate marijuana, Wolf said

Attorney Joseph D. Elford of Americans for Safe Access, representing
medical marijuana patients, noted that neither they nor the federal
government had litigated against the state marijuana laws. "Instead,
the challenge has come from two subdivisions of the state," he said.

Peter A. Krause for the state attorney general's office said Congress
can clarify which federal laws pre-empt local ones, but "there is no
conflict between the state's limited decriminalized use of marijuana
for limited medical practices and the (federal) Controlled Substances
Act to limit drug abuse and trafficking."

"It's difficult to tell what they are challenging in this case,"
Krause said. "The counties are essentially seeking an advisory
opinion," he said.

The Medical Marijuana Program violated state constitutional law
because it did not adhere to the rules governing how an initiative
can be changed, San Bernardino Deputy County Counsel Alan L. Green
argued on Tuesday.

That can only be done by if the original initiative authorizes it, or
if another voter initiative is passed to amend the previous one.
Green said the 1996 Compassionate Use Act did not include such
language, making the Legislature's passage of the Medical Marijuana
Program illegal.

He said outside court it was "over and above" what Prop. 215 had
called for, and "requires the counties to create a whole new
bureaucracy to maintain and track the system."

"A law that allows the state to return confiscated contraband is a
violation of federal law," Green said, citing a recent court action
that authorized such an action.

Wolf said outside court that the two counties "think they are above
the law and above the will of the voters of California."

San Bernardino and Merced counties were originally in the lawsuit
along with San Diego County.

San Diego County Superior Court Judge William R. Nevitt Jr. ruled in
December 2006 that the California marijuana laws were valid and the
counties would have to comply.

San Diego and San Bernardino counties appealed. Merced County, part
of the original suit, voted not to pursue the case and began issuing
medical marijuana cards.

Among those in court was William Britt, 49, of Long Beach, who
displayed his medical marijuana user card.

Britt, who walks with the aid of two elbow brace crutches, said he
was one of the last of his generation to contract polio, then
developed epilepsy at age 18.

Without being permitted to use medical marijuana, he said, "I would
have to take five or six horrible kinds of prescription drugs with
side effects such as nausea. For me, cannabis is the perfect
medicine," he said.