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 Mirken, spokesperson for the Marijuana Policy Project.
County Counsel John Sansone did not respond by press time to an e-mail from CityBeat asking about Mirken'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, Mirken 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.