The San Diego County Board of Supervisors' decision to sue the state of California in an attempt to overturn Proposition 215, the state's medical marijuana law, is wrong in every possible sense: legally, morally and politically. The American Civil Liberties Union intends to immediately intervene in federal court to protect the many patients who legally use medical marijuana and to uphold the will of California voters who approved Proposition 215.

The supervisors are wrong morally because there is simply no doubt that medical marijuana benefits many terribly ill patients 'Ai patients who would suffer, and sometimes die, without it. Research has shown unequivocally that marijuana relieves nausea and vomiting caused by cancer chemotherapy and harsh anti-HIV drugs used to treat AIDS. It stimulates appetite. It relieves certain kinds of pain that do not respond well to conventional drugs, including the excruciating neuropathic pain commonly suffered by those with multiple sclerosis.

In a 1999 study commissioned by the White House, the prestigious Institute of Medicine concluded, "Nausea, appetite loss, pain and anxiety 'Ai all can be mitigated by marijuana." The evidence has continued to accumulate since then, with new studies documenting benefit in patients with multiple sclerosis, HIV/AIDS and other painful conditions.

The county's proposed suit is wrong legally as well, stemming from a misunderstanding of the so-called "supremacy clause." Contrary to popular misconception, it simply is not true that federal law always trumps state law so as to require that state laws must march in lockstep with federal statutes.

In fact, the U.S. Constitution set up a system of "dual sovereignty," which limits federal power over the states. This system has been upheld in a long line of U.S. Supreme Court cases. In the 1997 case of Printz v. United States, the high court stated, "The Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."

In plain English, this means that while the federal government can ban medical use of marijuana if it chooses, it cannot force states to do the same. And it cannot criminalize the actions of states such as California that choose to allow medical marijuana under state law.

One source of confusion on this point may be last June's Supreme Court decision in the medical marijuana case called Gonzales v. Raich. While some have mistakenly suggested that Raich nullified state medical marijuana laws, in fact, the court simply maintained the status quo as it had been since Proposition 215 was passed by voters in 1996: Proposition 215 protects medical marijuana patients under state law, but does not give them immunity from possible prosecution under federal marijuana laws.

While this situation is in some ways frustrating, one thing is beyond argument: the Raich decision did not strike down Proposition 215 or any other state medical marijuana law. That isn't just my opinion. It's the conclusion drawn by attorneys general and other top officials in all 10 medical marijuana states: Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. For example, Montana Attorney General Mike McGrath stated simply, "We still have a valid law." Nothing has happened to change that conclusion.

Finally, the Board of Supervisors' decision to attempt to overturn Proposition 215 is wrong politically. It will waste county resources on a pointless and futile war on the sick that San Diego County voters didn't ask for and do not want. County voters supported Proposition 215 when it was on the ballot, and every indication is that support has increased since then. Statewide, the measure received 56 percent of the vote, and a January 2004 Field Poll found that support had increased to a whopping 74 percent. In San Diego County, a poll conducted by Evans/McDonough Company revealed that 67 percent of voters support Proposition 215, 70 percent said the county "should follow state law and issue medical marijuana ID cards to qualifying patients," and 78 percent agreed with the statement "The San Diego County Board of Supervisors should not be spending taxpayer money suing the state to try to overturn California's medical marijuana law."

The supervisors should immediately resume implementation of the medical marijuana ID card program and drop its doomed lawsuit. They have no mandate to pursue this wrongheaded action, nor to circumvent the will of California voters. Their proposed suit can only make San Diego a laughingstock once it is thrown out of court, as it inevitably will be.

URL: http://www.mapinc.org/drugnews/v06/n087/a10.html

Pubdate: Fri, 20 Jan 2006
Source: San Diego Union Tribune (CA)
Copyright: 2006 The American Civil Liberties Union
Contact: letters@uniontrib.com
Website: http://www.uniontrib.com/
Details: http://www.mapinc.org/media/386
Note: Does not print LTEs from outside its circulation area.
Author: Kevin Keenan
Note: Keenan is executive director of the ACLU of San Diego and Imperial Counties.
Note: The letter sent by the ACLU to the San Diego County Board of Supervisors http://www.safeaccessnow.org/downloads/ACLU_SD_Letter.pdf
Cited: The San Diego County Board of Supervisors filing
http://www.safeaccessnow.org/downloads/SD_Complaint.pdf
Cited: San Diego County Board of Supervisors
http://www.sdcounty.ca.gov/general/bos.html