The San Diego County Board of Supervisors voted in closed session Tuesday to file a federal lawsuit against the state of California in an attempt to overturn Prop. 215, which, approved by voters in 1996, established a patient's right to obtain, grow and use marijuana with a doctor's recommendation.

County Counsel John Sansone told CityBeat that the county's challenge--soon to be filed in federal court--will argue that "the state law is preempted by the federal Controlled Substances Act law, which makes the use of medical marijuana a crime.

"Federal law is supreme and prevails over state law," he said. "If one could show, which we will be attempting to show, that the state law is conflicting with the federal law or is antagonistic to the federal law, then courts in the past have ruled that state laws are federally preempted and have no force or effect."

The decision comes one month after supervisors voted to sue the state using a similar argument over SB 420, legislation passed in 2004 that requires counties to issue medical marijuana identification cards to qualifying patients. At that Nov. 8 meeting, Sansone told supervisors he didn't think they would win the legal challenge but was also asked to research the possibility of challenging Prop. 215.

Told of the decision by CityBeat, medical marijuana activist Barbara MacKenzie said she's not surprised, given the supervisors' earlier direction to their legal counsel, but said she finds it ironic that the supervisors believe it's their duty to challenge California law when, as elected officials, they should be concerned with upholding the law.

"It blows me away that they'd go against state's rights and the proposition process," she said, "as if they're not accountable to the people who elected them."

In 1996, 55.6 percent of voters statewide, and 52.1 percent of voters countywide, cast ballots in favor of Prop. 215.

Sansone told CityBeat he thinks both challenges are unprecedented and amount to an "uphill battle."

"This will be a difficult case," he said. "This is not something where we can point to any other court rulings that will be completely in support, or, for that matter, against us."

MacKenzie said she thinks a challenge to Prop. 215 will only help pro-medical marijuana activists rally more supporters than a lone challenge to SB 420.

Supervisors voted 4-0, with Supervisor Ron Roberts absent, to challenge Prop. 215.

Newshawk: http://www.medicalmj.org
Pubdate: Wed, 07 Dec 2005
Source: San Diego City Beat (CA)
Copyright: 2005 San Diego City Beat
Contact: editor@sdcitybeat.com
Website: http://www.sdcitybeat.com/
Details: http://www.mapinc.org/media/2764
Author: Daniel Strumpf