SAN DIEGO -- A Superior Court judge issued a tentative ruling Thursday morning, rejecting San Diego County's controversial challenge to overturn California's 10-year old, voter-approved "Compassionate Use Act" -- the law that says seriously ill people can legally use marijuana to ease their pain and suffering.

Superior Court Judge William R. Nevitt issued the tentative ruling that rejected the county's argument that the California law should be pre-empted by federal law, which says that marijuana has no medicinal benefit and is illegal in all cases.

However, Nevitt also listened to lawyers argue for and against his tentative ruling for roughly two hours Thursday afternoon. Nevitt said he would consider the arguments and issue a final written judgment, but did not say when.

Craig McClain, a Vista businessman, husband, father and spinal cord injury victim, said he was "tentatively" happy after Nevitt's ruling.

"It gives me hope," McClain said, twisting uncomfortably in his motorized scooter to ease the spastic attacks he suffers, which he had used marijuana to help control. "It just scares me when I hear their (county's) arguments."

County supervisors filed the lawsuit in state court in December after refusing to comply with state orders to create an identification card and registry program for medical marijuana users. Two other counties, San Bernardino and Merced, joined the lawsuit last year.

The lawsuit has national importance -- and appeals could go as high as to the U.S. Supreme Court -- because it marks the first time that a county has sued to try to overturn any of the medical marijuana laws approved by voters in 11 states.

San Diego County board members, who have opposed the Compassionate Use Act since it was put on the ballot and approved by 56 percent of state voters in 1996, have called it a "bad law" that promotes drug abuse.

Supervisor and board Chairman Bill Horn was reached by telephone Thursday, but said that because Nevitt had not issued a final ruling, it was too early to comment. Horn also said the full board would have to talk in closed session to decide whether they wanted to appeal the case if Nevitt affirmed his tentative ruling.

Medical marijuana advocacy groups and patients, meanwhile, held a news conference -- punctuated by loud applause and whoops of joy -- on the courtroom steps Thursday after Nevitt's hearing to praise the judge's tentative ruling.

Jeremy Blank, attorney for San Diego NORML, the National Organization for the Reform of Marijuana Laws, said, "I think the judge's ruling is very encouraging. If it is affirmed Oe then I think it would be a great victory, not only for patients and doctors, but also for the voters of the state of California and Legislature of California."

The county's lawsuit argued that California's "Compassionate Use Act," Proposition 215, should be pre-empted by federal law under the U.S. Constitution's "supremacy clause," which states that federal laws should be "supreme" over state laws. The federal Controlled Substances Act, approved in the 1970s, says that marijuana is a "Schedule 1" drug, without any medical value, on a par with heroin, LSD and mescaline.

However, Nevitt, in his tentative ruling, said the county's pre-emption argument left out an important corollary to the supremacy clause that says in areas where state legislatures traditionally make law, state law is considered pre-eminent.

In addition, Nevitt said, the county did not make a compelling argument that Prop. 215 and federal law were "in conflict" -- even if they said opposite things.

Nevitt said that although the laws appear to conflict, the California law did not "require" people to break the law, but only allowed seriously ill people to do so, legally, under state law. And, Nevitt ruled, there was no direct conflict because the federal government was still free to arrest medical marijuana patients in California under federal law.

Senior deputy district attorney Thomas Bunton argued during Thursday's oral hearings that Nevitt's ruling missed an important part of the "conflict" question.

Bunton said the test for conflict was twofold: first, whether the laws could co-exist; and second, whether a state law created an "obstacle" for the federal statute.

Bunton said that Nevitt's ruling answered the first question, but ignored the second.

He said that Prop. 215 "severely undermined" the federal Controlled Substances Act by "authorizing" people to use an illegal drug, and by creating problems for federal law enforcement officers because California's medical marijuana could be lost, stolen or sold and used for illegal purposes.

"It's clear that marijuana use is drug abuse under the eyes of the federal Controlled Substance Act," he said. "It's drug abuse."

Bunton also said that states had a right to adopt separate laws from the federal government if they were at least as strict, or more so. Otherwise, he said, the supremacy clause says federal law should pre-empt them.

But Adam Wolf, attorney for the American Civil Liberties Union -- which successfully sued to intervene in the county case to defend medical marijuana patients -- said states had every right to adopt their own laws, even if they were less stringent than federal laws.

"If their interpretation were correct, you would have literally thousands of state laws that would be called into question," Wolf said. "Any state regulation that imposes punishment less than the federal government would be called into doubt."

Wolf said the ACLU is confident that Nevitt would affirm his tentative ruling, that counties would have to comply with the state law -- and that if they did not, activists were ready to appeal the case to the highest courts.

"We've always felt good about our chances," he said. "We're right on the law. The will of the California voters will prevail. No county is above the law."

Meanwhile, Steph Sherer, a medical marijuana user and founder of Americans for Safe Access -- a group that wants to get the federal government to change its marijuana laws -- held back tears, and asked for a moment of silence for Pam Sakuda, who died last week after a long battle with cancer.

Sakuda, a San Diego resident who used marijuana to give herself enough appetite to combat the nausea of chemotherapy, had campaigned against the county's medical marijuana lawsuit.

Sherer said the county's lawsuit was making people suffer for no reason. "The absurdity is that patients like Pam are spending precious moments in a courtroom instead of with loved ones, and living what life they have left," Sherer said.

Newshawk: The Leading Source for News www.drugnews.org
Pubdate: Fri, 17 Nov 2006
Source: North County Times (Escondido, CA)
Copyright: 2006 North County Times
Contact: letters@nctimes.com
Website: http://www.nctimes.com
Details: http://www.mapinc.org/media/1080
Note: Gives LTE priority to North San Diego County and Southwest Riverside County residents
Author: Gig Conaughton, Staff Writer
Cited: San Diego County Board of Supervisors
http://www.sdcounty.ca.gov/general/bos.html
Cited: National Organization for the Reform of Marijuana Laws
http://www.norml.org
Cited: Americans for Safe Access http://www.safeaccessnow.org