COUNTY MOVES MEDICAL MARIJUANA CHALLENGE TO STATE COURT

SAN DIEGO - San Diego County leaders have abruptly switched their
precedent-setting lawsuit to overturn California's medical marijuana
law from federal to state court this week.

County officials denied that they moved their lawsuit - which has
angered medical marijuana patients and advocacy groups - because they
feared the lawsuit would be thrown out of federal court.

They said that going through the state court system could be a
winning legal strategy - by still leaving the option of getting to
the U.S. Supreme Court and avoiding the U.S. 9th Circuit Court of
Appeals, which has been friendlier to marijuana advocates than opponents.

"This could still take us to the U.S. Supreme Court," County Counsel
John Sansone said. "And if it avoids the 9th Circuit Court of
Appeals, so be it."

Attorneys from the American Civil Liberties Union, who were seeking
court permission to oppose the county's federal lawsuit, said they
would do the same in the state system.

"Tell them, 'I guess we'll see you in court,' " ACLU attorney Allen
Hopper said.

Both the county and marijuana advocacy groups say the county's
challenge is precedent-setting because it is the first to try to
overturn any of the medical marijuana laws that voters have approved
in 11 states.

The county, pushed by a 4-0 vote in December by its Board of
Supervisors, with Supervisor Ron Roberts absent, filed a lawsuit
seeking to overthrow California's medical marijuana law on Jan. 20.

The lawsuit wants the courts to invalidate the 9-year-old,
voter-approved "Compassionate Use Act" - Proposition 215 - on the
grounds that it should be pre-empted by federal law, which says that
all marijuana use is illegal and that marijuana has no medicinal value.

But Sansone said Thursday that after more research, county attorneys
filed essentially the same lawsuit in state Superior Court on
Wednesday, and withdrew its federal filing.

Hopper and state health department officials said last week that they
thought the U.S. District Court might throw out the county's federal
lawsuit before it was even heard - because it lacked legal "standing."

Hopper said counties are not allowed to sue states in federal court
over federal law.

On Thursday, Sansone said that suggestion had nothing to do with the
county's decision to take the state court route.

"We believe we would have prevailed on that 'standing' issue,"
Sansone said. "But, for a whole lot of other issues relating to legal
strategy, we think this case is best suited to the state courts."

Hopper, meanwhile, suggested that if the county was trying to avoid
the federal 9th Circuit Court of Appeals because it feared the judges
there would not side with them, it could backfire.

Hopper said the 9th Circuit Court of Appeals was "one of the most
often reversed" courts in the country. He said that if the 9th
Circuit judges had ruled against the county's challenge, it would
almost guarantee a review by the U.S. Supreme Court.

"If the 9th Circuit says, 'The sky is blue,' they (the Supreme Court)
would want to review the decision and actually say the sky is gray,"
Hopper said.

The county's new lawsuit uses the same pre-emption argument as the
federal suit they withdrew. But it expands the scope of the suit somewhat.

The federal lawsuit was filed against the state and Sandra Shewry,
director of California's Department of Health Services. The state
lawsuit also names the San Diego chapter of the National Organization
for the Reform of Marijuana Laws to the list.

Sansone said NORML sent a letter to county supervisors threatening to
sue them because the county had refused a state order in November to
create an identification card and registration program for medical
marijuana users, to help implement Prop. 215.

The new lawsuit alleges that the county believes its defense against
the group's threatened lawsuit is that Prop. 215 should be overturned
because it clashes with federal law.

The county's argument cites the U.S. Constitution's "Supremacy
Clause" - which states that the Constitution and federal law should
be "supreme" over state laws - and that a 1961 U.S. treaty with 150
other nations that states that marijuana is illegal.