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Our View: Medical-pot politics
6/22/08|Appeal-Democrat| Editorial

Two counties argue that implementing Prop. 215 would force them to violate federal drug laws

For years various jurisdictions and law enforcement agencies have dragged their feet when it comes to implementing California's Proposition 215, the initiative passed by voters in 1996 that allows patients with a recommendation from a licensed physician to grow, possess and use cannabis, or marijuana, without legal penalty. Last year three California counties, San Diego, San Bernardino and Merced, announced they would challenge the initiative itself, on the grounds that it is in conflict with federal law, which still — in defiance of the best scientific evidence — classifies marijuana as a drug with no known medical benefits and illegal under any circumstances.

Now that they have taken their case to the state appellate court level (having been rebuffed at the Superior Court level in December), however, their case is much more modest. Instead of challenging Prop. 215 itself, they are challenging a 2003 state law, Senate Bill 420, that sought to implement the law. Among other provisions, SB420 requires counties to set up a program to screen patients and issue patient ID cards. The program is voluntary, in that patients are not required to apply for cards, but the idea is that having a government-issued card will make encounters with law enforcement easier for all concerned.

San Diego and San Bernardino counties — Merced has dropped out of the suit and begun issuing ID cards — argued before a three-judge panel of the 4th District Court of Appeal in San Diego on Tuesday that this provision requires them to break federal law by aiding and abetting the use of a drug that is still strictly prohibited under federal law. They also argue that SB420 illegally changes Prop. 215, because under the California constitution only the voters can change a law approved by the voters through the initiative process. The appellate panel has 90 days to hand down a decision.

The two counties may have a case, although it's a stretch on both counts. Courts have ruled, for example, that when the police are required to return medicine to patients they are acting as agents of the court and bear no legal liability. Insofar as SB420 makes ID cards and guidelines voluntary rather than mandatory for patients, it doesn't change the law but only implements it. But however the court decides on those issues, the good news is that when this suit is settled, California's basic medical marijuana law will still be in place.

A provision of the California constitution requires state and local officials to enforce state law rather than federal law when a perceived conflict exists with federal law, unless and until a court rules that federal law supersedes and invalidates state law. That hasn't happened, and it's not going to happen. State and local officials who are still dragging their feet need to do their duty and comply with the law.