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.