JUDGE REJECTS COUNTY'S CHALLENGE TO POT LAW

SAN DIEGO -- A Superior Court judge issued a tentative ruling
Thursday morning, rejecting San Diego County's controversial
challenge to overturn California's 10-year old, voter-approved
"Compassionate Use Act" -- the law that says seriously ill people can
legally use marijuana to ease their pain and suffering.

Superior Court Judge William R. Nevitt issued the tentative ruling
that rejected the county's argument that the California law should be
pre-empted by federal law, which says that marijuana has no medicinal
benefit and is illegal in all cases.

However, Nevitt also listened to lawyers argue for and against his
tentative ruling for roughly two hours Thursday afternoon. Nevitt
said he would consider the arguments and issue a final written
judgment, but did not say when.

Craig McClain, a Vista businessman, husband, father and spinal cord
injury victim, said he was "tentatively" happy after Nevitt's ruling.

"It gives me hope," McClain said, twisting uncomfortably in his
motorized scooter to ease the spastic attacks he suffers, which he
had used marijuana to help control. "It just scares me when I hear
their (county's) arguments."

County supervisors filed the lawsuit in state court in December after
refusing to comply with state orders to create an identification card
and registry program for medical marijuana users. Two other counties,
San Bernardino and Merced, joined the lawsuit last year.

The lawsuit has national importance -- and appeals could go as high
as to the U.S. Supreme Court -- because it marks the first time that
a county has sued to try to overturn any of the medical marijuana
laws approved by voters in 11 states.

San Diego County board members, who have opposed the Compassionate
Use Act since it was put on the ballot and approved by 56 percent of
state voters in 1996, have called it a "bad law" that promotes drug abuse.

Supervisor and board Chairman Bill Horn was reached by telephone
Thursday, but said that because Nevitt had not issued a final ruling,
it was too early to comment. Horn also said the full board would have
to talk in closed session to decide whether they wanted to appeal the
case if Nevitt affirmed his tentative ruling.

Medical marijuana advocacy groups and patients, meanwhile, held a
news conference -- punctuated by loud applause and whoops of joy --
on the courtroom steps Thursday after Nevitt's hearing to praise the
judge's tentative ruling.

Jeremy Blank, attorney for San Diego NORML, the National Organization
for the Reform of Marijuana Laws, said, "I think the judge's ruling
is very encouraging. If it is affirmed Oe then I think it would be a
great victory, not only for patients and doctors, but also for the
voters of the state of California and Legislature of California."

The county's lawsuit argued that California's "Compassionate Use
Act," Proposition 215, should be pre-empted by federal law under the
U.S. Constitution's "supremacy clause," which states that federal
laws should be "supreme" over state laws. The federal Controlled
Substances Act, approved in the 1970s, says that marijuana is a
"Schedule 1" drug, without any medical value, on a par with heroin,
LSD and mescaline.

However, Nevitt, in his tentative ruling, said the county's
pre-emption argument left out an important corollary to the supremacy
clause that says in areas where state legislatures traditionally make
law, state law is considered pre-eminent.

In addition, Nevitt said, the county did not make a compelling
argument that Prop. 215 and federal law were "in conflict" -- even if
they said opposite things.

Nevitt said that although the laws appear to conflict, the California
law did not "require" people to break the law, but only allowed
seriously ill people to do so, legally, under state law. And, Nevitt
ruled, there was no direct conflict because the federal government
was still free to arrest medical marijuana patients in California
under federal law.

Senior deputy district attorney Thomas Bunton argued during
Thursday's oral hearings that Nevitt's ruling missed an important
part of the "conflict" question.

Bunton said the test for conflict was twofold: first, whether the
laws could co-exist; and second, whether a state law created an
"obstacle" for the federal statute.

Bunton said that Nevitt's ruling answered the first question, but
ignored the second.

He said that Prop. 215 "severely undermined" the federal Controlled
Substances Act by "authorizing" people to use an illegal drug, and by
creating problems for federal law enforcement officers because
California's medical marijuana could be lost, stolen or sold and used
for illegal purposes.

"It's clear that marijuana use is drug abuse under the eyes of the
federal Controlled Substance Act," he said. "It's drug abuse."

Bunton also said that states had a right to adopt separate laws from
the federal government if they were at least as strict, or more so.
Otherwise, he said, the supremacy clause says federal law should pre-empt them.

But Adam Wolf, attorney for the American Civil Liberties Union --
which successfully sued to intervene in the county case to defend
medical marijuana patients -- said states had every right to adopt
their own laws, even if they were less stringent than federal laws.

"If their interpretation were correct, you would have literally
thousands of state laws that would be called into question," Wolf
said. "Any state regulation that imposes punishment less than the
federal government would be called into doubt."

Wolf said the ACLU is confident that Nevitt would affirm his
tentative ruling, that counties would have to comply with the state
law -- and that if they did not, activists were ready to appeal the
case to the highest courts.

"We've always felt good about our chances," he said. "We're right on
the law. The will of the California voters will prevail. No county is
above the law."

Meanwhile, Steph Sherer, a medical marijuana user and founder of
Americans for Safe Access -- a group that wants to get the federal
government to change its marijuana laws -- held back tears, and asked
for a moment of silence for Pam Sakuda, who died last week after a
long battle with cancer.

Sakuda, a San Diego resident who used marijuana to give herself
enough appetite to combat the nausea of chemotherapy, had campaigned
against the county's medical marijuana lawsuit.

Sherer said the county's lawsuit was making people suffer for no
reason. "The absurdity is that patients like Pam are spending
precious moments in a courtroom instead of with loved ones, and
living what life they have left," Sherer said.