BREAKING THE RULE OF LAW

Garden Grove Stubborn About Medical Marijuana.

It would be nice if members of the City Council, the city attorney
and the police chief were required to pay the approximately $250,000
the city of Garden Grove has squandered trying to express what might
best be presented as its resentment that the voters of California
approved a policy toward the medicinal use of marijuana that is
different from the federal government's policy. Unfortunately, the
city's taxpayers will have to pay the bills for its officials' obtuseness.

The expense derives from the city's refusal, even when ordered by a
court, to return marijuana to one Felix Kha, who was a qualified
medical marijuana user under state law when he was pulled over on a
routine traffic stop in 2005. The ensuing citation for marijuana
possession was dismissed when Mr. Kha produced documentation of a
physician's recommendation.

There is controversy over whether Mr. Kha had a recommendation with
him when he was stopped. The police report on the incident says the following:

"He said he had a doctor's referral that allowed him to be in
possession of the marijuana. Kha handed me a piece of paper that
indeed looked like a referral, but I was not able to verify its
legitimacy. I read the document and did not find any mention of it
being a medical prescription." That's not surprising. The state law
permitting physician-authorized patients to possess marijuana refers
to a "recommendation," not a "prescription." Prescriptions are
regulated under federal law, and writing one for marijuana probably
would be a federal violation.

At any rate, when Mr. Kha asked that his medicine be returned and a
court so ordered, Garden Grove refused. The City took the case to the
state appellate level and lost. The California Supreme Court and the
U.S. Supreme Court declined to hear the city's appeal.

That these stubborn activities involved something other than devotion
to the rule of law is suggested not only by the fact that the city
lost, but by the underlying law in the situation. State and local
authorities are directed by the state constitution to enforce
California law, even if there is an apparent conflict with federal
law, unless and until a federal court declares that federal law
overrides state law. No court ever did so, although San Diego County
carried a case to the highest levels of the judiciary branch and lost.

The state appellate decision also made it clear that when a court
hands down an order, police officers and other officials are required
to act strictly as agents of the court, which absolves them of any
claim that they were violating federal law, as Garden Grove claimed
to be concerned about.

Garden Grove's case was weak from the beginning. Joe Elford, attorney
for Americans for Safe Access, which represented Mr. Kha and received
attorneys' fees, told us that after the California Supreme Court
declined to review the lower court's decision ASA talked to Garden
Grove about settling without requiring attorneys' fees. But Garden
Grove would have none of it, he said, insisting on giving the U.S.
Supreme Court a try.

It's too bad Garden Grove wasted so much time and trouble on this
case. And it's too bad the taxpayers got the bill.