GOING NOWHERE

ACLU ATTORNEY SAYS ASSISTED-SUICIDE RULING SHOWS FUTURE OF COUNTY'S POT LAWSUIT

A lot happened in 1961: East Germany erected the Berlin Wall,
President Kennedy authorized the ill-fated Bay of Pigs invasion and
West Side Story captured the Oscar for Best Picture.

And in New York, U.N.-member nations signed on to an international
treaty, the so-called Single Convention on Narcotic Drugs, that was
intended to curb international drug trafficking, stem drug addiction
and provide a framework for countries to adopt their own drug laws.
Nine years later, the U.S. Congress passed the Controlled Substances
Act (CSA), which grouped drugs into schedules according to whether or
not a drug had any medicinal value. Cannabis made it into Schedule I,
the utmost "not" category.

In mid-December, the San Diego County Board of Supervisors voted
4-to-0--Supervisor Ron Roberts was absent that day--to sue the state
of California in an attempt to overturn the state's 10-year-old
voter-approved initiative, Proposition 215, or the "Compassionate Use
Act." The law allows individuals to use marijuana if they have a
qualified doctor's recommendation. San Diego County is arguing that
the state law not only runs afoul of federal policy but also
conflicts with the 45-year-old international treaty.

The county's choice to cite the 1961 U.N. treaty in its lawsuit,
filed in federal court Jan. 20, has medicinal-marijuana advocates
perplexed. A small number of countries that were signatories to that
treaty have since legalized pot or passed laws allowing medicinal use
of it--the Netherlands being an example of the former and Canada an
example of the latter, said Bruce Merkin, spokesperson for the
Marijuana Policy Project.

County Counsel John Sansone did not respond by press time to an
e-mail from CityBeat asking about Merkin's point.

And though the U.S. Supreme Court last year upheld the federal
government's right to enforce the Controlled Substances Act in
California, U.N. regulators haven't come after California nor cited
any of the other 10 states that allow the use of medicinal marijuana,
Merkin noted.

"I guess we should be grateful that we have the [San Diego County]
Board of Supervisors since none of the people responsible for
enforcing that treaty over the past 10 years thought to say the
treaty doesn't allow California to do this," said Alan Hopper, an
attorney with the National ACLU Drug Law Reform Project.

San Diego County Board of Supervisors Chairman Bill Horn, perhaps the
county's most outspoken critic of medicinal-marijuana laws, declined
CityBeat's request for an interview, but in a prepared statement,
Horn argued that "federal law makes the cultivation, distribution and
used of marijuana for any purpose illegal.... We believe federal law
takes precedent over state law."

Horn has publicly drawn a link between illicit drug use and Prop.
215, saying support of the state law sends the wrong message when it
comes to illegal drugs.

The supervisors' lawsuit ostensibly stems from a 2004 state law that
says counties must fund and administer a medical marijuana ID-card
program. Medicinal marijuana users with a legitimate doctor's
recommendation would then use the ID card as form of proof should
they be detained by the police for marijuana possession. The ID-card
law, also known as SB 420, defined how much marijuana a person could
legally possess. Though taken to task by the county's civil grand
jury for lagging on implementing the ID-card program, the Board of
Supervisors initially planned to ignore the law, arguing that SB 420
violated the federal ban on marijuana. A month later, the supervisors
opted to go after SB 420's parent law.

Medicinal-marijuana advocates CityBeat spoke with when the county
first decided to go after Prop. 215 pointed out that although Prop.
215 does not offer medicinal-cannabis users protection from federal
prosecution under the Controlled Substances Act, the supervisors'
attempt to overturn the law wholesale was an "overreach," said Hilary
McQuie, spokesperson for Americans for Safe Access.

The lawsuit has prompted a group of medicinal-marijuana advocates to
try to get a term-limits initiative on the November ballot. The
supervisors aren't subject to term limits and all five have held
office for at least a decade. Rudy Reyes, a young man who was
severely burned in 2003's Cedar fire and who has since come to rely
on marijuana for pain management, helped spearhead the ballot initiative.

"If long-term ideologies are going to hurt sick and dying people, we
don't need long-term lawmakers," Reyes told CityBeat. He said he's
considering running against Supervisor Dianne Jacob, who's up for
reelection this year. Reyes said county sheriff's deputies raided his
home last month, taking all his marijuana plants and a cannabis-based
lotion he uses. No charges were filed against him, he said.

State Attorney General Bill Lockyer has been a staunch advocate of
Prop. 215, arguing in a 2003 legal brief that a state should be
allowed to pass laws that best serve the needs of its citizens. The
Controlled Substances Act, he argued, is outdated, passed before
California was hit by "the ravages of AIDS."

The ACLU's Hopper delivered a letter to the Board of Supervisors and
Sansone on Jan. 19, arguing against the validity of the county's
lawsuit. A second letter was delivered Jan. 24.

In the Jan. 19 letter, Hopper drew a comparison between last week's
Supreme Court decision on Oregon's assisted-suicide law and
California's right to allow the medicinal use of marijuana. The
Supreme Court ruling upheld Oregon doctors' ability to prescribe a
lethal amount of drugs to terminally ill patients. Former Attorney
General John Ashcroft had challenged the Oregon law, arguing it
violated the Controlled Substance Act.

Dick Cheney hunting pal and right-wing conservative U.S. Supreme
Court Justice Antonin Scalia--though part of the three-judge minority
that argued against the Oregon law--said federal law nevertheless
doesn't nullify Oregon's assisted-suicide law.

It's a complicated argument, but Hopper put it this way: only if
Oregon law required doctors to prescribe lethal narcotics to
terminally ill people or, likewise, if California law said patients
are required to use medicinal marijuana would there be the sort of
state law/federal law conflict the county supervisors allege is going
on with Prop. 215. It's called a "positive conflict," he said.

"If there was some requirement under state law that in order to
follow [that] law you would have to violate federal law, that would
be a conflict," Hopper said. "That's not the same as a state law that
says we're not going to make [medicinal marijuana] a crime. Even
though federal law makes it a crime to possess and use marijuana even
if you're a medical-marijuana patient, there's no direct requirement
under state law that puts somebody into the bind that they'd have to
break federal law [in order to comply with] state law....

"The state law at issue would have to require some action that
specifically violated federal law," he said. "Scalia, who dissented
from majority opinion and who is no great lover of assisted suicide
or medicinal marijuana, says that preemption [of state law by federal
law] doesn't even apply here because nobody's ever argued that the
Controlled Substances Act preempts state drug laws."

Hopper said he believes the county's lawsuit will be thrown out of
court based on a 25-year-old law that says a political subdivision of
a state--a city or county--can't challenge state law.

On Tuesday, the ACLU intervened in the county's lawsuit on behalf of
the state. Also, the San Bernardino County Board of Supervisors
intervened on San Diego County's side.