by Marc Snelling
Americans for Safe Access (ASA) attorney Joe Elford was in town Tuesday to argue against the County of San Diego in their attempt to overturn medical marijuana law. A three judge panel heard the case before the crowded courtroom. Elford was joined by Adam Wolfe representing San Diego NORML, (National Organization for the Reform of Marijuana Laws) and Peter Krause California deputy attorney general. The County of San Diego was represented by Thomas D Bunton, who was joined by Alan Green of San Bernardino County. The case was set in motion on November 1st 2005 when the San Diego County board of supervisors voted against implementing a medical cannabis identification card program. The measure introduced by supervisor Ron Roberts, failed by a vote of 2-3, with supervisors Bill Horn, Diane Jacob, and Pam Slater-Price voting in opposition. County attorneys warned the supervisors before the vote that challenging the law would be a costly and unwinnable endeavor.
Against the advice of their own lawyers, the County filed suit in Superior Court arguing that federal law prevented them from following state law to issue medical cannabis ID cards. The county quickly lost their case. In November of 2006 Judge William Nevitt wrote in his decision that “Requiring the counties to issue identification cards for the purpose of identifying those whom California chooses not to arrest and prosecute for certain activities involving marijuana use does not create a ‘positive conflict,'”.
The board of supervisors was not satisfied and appealed the decision on February 22nd 2007. The first oral arguments were heard in the case on Tuesday, 15 months after the case was filed. Thomas Bunton began the proceedings for San Diego County arguing that “Congress has declared marijuana has no value” and that their goal is to “end the use of marijuana”, “to eradicate it.” He argued that the federal controlled substance act was “designed to stop conduct” and “regulate medical practice”.
After Bunton ended his anti-marijuana speech, Judge Alex McDonald questioned him as to what gave the County the standing to file suit. The judge sought an explanation as to how the ID card program would affect the county. Bunton did not have a direct answer. He responded by asking the judges if California could issue a medical marijuana ID card then why not a card authorizing Californians to assassinate the president? He went on with his imaginary example saying someone could kill the president and claim “The County gave me a card saying it is ok to assassinate the president.”
Bunton’s outrageous arguments were followed by attorney Alan Green for San Bernardino County. Green appeared nervous and spoke with a wavering voice in front of the cameras and overflow crowd. Judge McDonald questioneGreen as to why he should listen to his position which is identical to that of Merced County. Merced dropped out of the case after the initial loss in Superior Court and began issuing medical marijuana ID cards.
The appellant’s arguments were countered by State attorney Krause, who contended there was “no federal pre-emption” of California medical marijuana law. He pointed to an earlier precedent setting case in Garden Grove vs Superior Court.
Krause was followed by Joe Elford from ASA who pointed to the patients his organization works with who “benefit tremendously” from medical marijuana and noted that federal and state law “have co-existed for 12 years”. “The federal government does not contend pre-emption” said Elford “the Controlled Substance Act was designed to foster health and welfare.”
Adam Wolfe concluded the arguments, focusing his speech on the American tradition of “state sovereignty.” The judges had few questions for the responding lawyers, and the court was recessed, with a decision expected from the judges in 30 to 90 days.
Those present for the trial spilled out on to the street where a group of news crews were waiting to interview patients Wendy Christakes and William Britt. Britt spoke to the media about how marijuana provided him relief from symptoms of polio and epilepsy. He showed the media his ID card issued in LA County. While speaking he was interrupted by a member of the San Dieguito Alliance for Drug Free Youth (SDADFY) posing as a reporter for the ‘Pomerado News’.
SDADFY is a Del Mar based 501(c)3 non-profit organization whose members routinely speak against medical marijuana at San Diego City and County hearings. The group is funded primarily by government grants. Over the past three years alone the group has received over $1.2 million in government funding. Executive director Judith Strang earns a salary in excess of $50,000 from the organization. She was also on hand at the hearing. Her message to the media is that teens use marijuana recreationally because they hear about medical marijuana.
Later in the day attorney Joe Elford addressed a meeting of over 60 ASA supporters in Clairemont. San Diego ASA chair Dion Markgraff introduced Elford to the enthusiastic crowd. Elford spoke for over an hour on the aspects of the trial and his expectations moving forward. Elford fully expects the County of San Diego to continue spending taxpayer money to fight this case. He believes their strategy is to keep appealing their losses all the way to the US Supreme Court. Elford framed the battle over medical marijuana as a “cultural war”. He related a complaint he heard in court from a city police department who claimed it “would ruin their morale” to enforce medical marijuana laws. Elford was joined at the meeting by California ASA director Don Duncan. Duncan was there to encourage San Diegans to sign up for their DEA raid text alert system.
Sign up for ASA text-alert system: http://www.safeaccessnow.org/form.php?id=66
The system was designed in response to DEA raids of medical cannabis dispensaries in California. When a dispensary is raided text messages are sent to ASA members via cell phones so they can respond immediately with a protest at the site. Duncan noted to the groups amusement that the DEA itself is on the list. He predicts that DEA raids will intensify this summer. Federal law enforcement agencies will be seizing as much cash and marijuana as possible as they fear a regime change in Washington will cut their funding and their mandate. Presidential candidate Barack Obama has stated that he will not devote federal resources to fighting states with medical cannabis laws.
Duncan also shared good news from the California Assembly. Two members, Mark Leno of San Francisco and Lori Saldaña of San Diego, have stepped up to draft legislation protecting medical marijuana patients. Saldaña was in town last week speaking to speak to members of Hope Unlimited, a group of San Diego medical cannabis patients who meet in North Park. She discussed a bill she had authored to prohibit state, county, city and local law enforcement from working with federal law enforcement agencies on raids of medical cannabis dispensaries. However, she was not able to get enough votes to pass the measure.
The other measure AB 2279, authored by Mark Leno and co-sponsored by Saldaña would make it illegal for an employer to discriminate against medical cannabis patients. The bill has passed the assembly and is before the senate. Duncan urged ASA members to call their State senators in support of this bill.
Dion Markgraff spoke to the group about two bills before congress this year. One, the Hinchey-Rohrabacher amendment, would prohibit the DEA and the Justice Department from spending taxpayer money to raid, arrest, or prosecute medical marijuana patients and providers in the 12 states where medical marijuana is legal.
Another bill HR5843 ‘Personal Use Act’ was introduced by Representative Barney Frank. It would remove criminal penalties for possession of up to 100 grams of marijuana and the not-for-profit transfer of one ounce. A representative from the Marijuana Policy Project was on hand to ask voters in Brian Bilbray’s district to contact him and ask for his support on medical cannabis bills before congress.
The room was still energetic and standing-room only when the meeting came to a close 2 hours later. ASA Director Don Duncan commented that he had never seen a group this large organize in Los Angeles, a city with dozens of dispensaries currently in operation. He sees the next 6 months as a critical time in the fight to win protections for medical access to marijuana. He urged those present to do all they can in the coming months to support ASA and their rights to medical marijuana.