Medical Marijuana Stand-off Pits County Against State Law

Saturday, November 05, 2005 | In a move that has angered medical marijuana advocates and frustrated state officials, the San Diego County Board of Supervisors voted this week against implementing a plan to issue identification cards to medical marijuana patients.

The move makes San Diego the first county in the state to flatly refuse to implement the state-mandated program and, according to legal analysts, puts the county directly in the firing line for legal action from state attorneys and marijuana advocates.

Supervisors, who voted 3-2 against issuing the identification cards, argued that to implement the state law would put them directly at odds with federal laws prohibiting the use and distribution of marijuana for medicinal purposes. They said it would also go against everything they have so far said about the issue.

“I could be cited, any supervisor could be cited, for violation of federal law,” said Supervisor Bill Horn, who has been the most vocal supervisor against the state program. “The card authorizes the use of the product … that puts me in direct violation of the federal law.”

That point, however, is not cut and dry.

The county supervisors argue there is an obvious dichotomy between state and federal law on the legality of medical marijuana use. However, legal analysts were quick to point out that the supervisors are not being asked to legalize the use of marijuana, merely to provide a system by which medical marijuana patients can be easily identified. Moreover, according to the state attorney general, there is no conflict between federal and state law.

“This isn’t about federal law,” said Teresa Shilling, a spokeswoman for the California attorney general. “This is about state law. The attorney general has issued opinions to state entities like law enforcement to say that state law still stands.”

The supervisors clearly don’t agree. All five of the elected officials expressed concern that giving the go ahead to a plan that would facilitate the use of marijuana was clearly a violation of several federal laws.

If that’s the case, federal law wins out.

“Federal law trumps,” said Bryan Wildenthal, a professor of law at Thomas Jefferson School of Law. “The Supreme Court has ruled that there’s no exception under federal law that would accommodate medical marijuana, even though some states and localities have legalized it under state and local law.”

Certainly, Horn sees this as an historic opportunity for San Diego County to make a stand against state law. He said the day after the vote he was called and congratulated by Scott Burns, deputy director for state and local affairs at the office of national drug control policy in Washington and one of the federal government’s drug czars. Horn said Burns congratulated the board for their courageous stand against California state law.

Not surprisingly, local medical marijuana campaigners don’t share Burns’ enthusiasm.

“It made me very, very angry, it made the community very angry,” said Eric Agosto, director of San Diego NORML, a nonprofit lobbying organization that works to legalize marijuana. “We’re over it. We’re over them telling us they’re not going to do it.”

Agosto said the cards are vital for medical marijuana users to obtain medicine. The cards would allow medical marijuana users from San Diego to travel all over the state, collecting their medicine from dispensaries from San Ysidro to San Francisco.

Medical marijuana advocates also stressed the importance of the cards as ammunition in their constant battle against law enforcement officials.

“What this paperwork allows is it allows us to get a prescription, so that if a cop were to pull you over, and you have a joint in your car, you’re not sitting there thinking ‘Oh my God, I’m going to jail for 20 years’,” said Agosto.

“We’re slowly, slowly getting to the point of decriminalization,” he added.

That’s exactly what the county supervisors are worried about.

“If the county of San Diego agreed to issue identification cards to patients who qualify for medical marijuana under state law, they would be giving those patients a false impression that what they are doing is legal,” said John Weil, chief of staff for chairwoman Pam Slater-Price.

Nevertheless, two of the supervisors still voted in favor of implementing the state law. Though Ron Roberts and Greg Cox both said they are adamantly against the use of medical marijuana, they said the prospect of going up against the state was a battle that they felt was not worth fighting.

Especially when that battle will be fought using taxpayers’ money.

The state attorney general’s office would not comment on whether they will be taking legal action against San Diego County. Indeed, the California Department of Health Services had not, at time of writing, been contacted by San Diego County with a definitive refusal to implement the state law. Representatives of the department said San Diego County is not under any timeline to implement the law.

Even if the county is not taken to task by the state, however, the activists at NORML have vowed to take their battle to the courts if that’s what it takes.

“We’re going to try to do it nicely and bring them patients and try to change their mind without having to bring any legal recourse,” said Agosto. “But they’re probably just going to do it again.”

Indeed, they are. Horn’s answer to any threat of litigation is “bring it on.” Dianne Jacobs says the same. She said she’s not going to back down on this, and is willing to fight tooth and nail to ensure the ID card program never gets implemented.

Ostensibly, the swing-vote in this debate is Slater-Price. Though her chief of staff insists Slater-Price is now firmly of the opinion that the plan should not be implemented, other supervisors hinted that Slater Price was undecided right up to the last minute in the vote. That perceived indecision could prove to be the lynchpin in a legal and political battle that is as protracted as it is costly.

There is one more twist to the whole issue, however, and it’s a curious one.

The state ID card program has at its core the creation of a central database of all medical marijuana users in California. The program was stalled for 10 days in July after officials raised the point that federal law enforcement agencies could use that database to track down and prosecute medical marijuana users.

The program was re-started on July 18, when the state attorney general said information received by applicants for the cards could indeed be used by federal officials to identify individuals for prosecution. As a result, the Department of Health Services modified its application forms for the cards so they now inform applicants that possession of marijuana is a federal crime and that any information provided could be used by federal prosecutors.

“What they’re issuing is a get into jail free card,” said Marybeth Herald, professor of law at Thomas Jefferson School of Law.

The Judas kiss that the cards might prove to be is not lost on medical marijuana advocates, some of whom said – with not a little irony – that they would not be applying for the cards even if they win the fight to convince county officials to issue them.

That’s not going to stop them from fighting to have the cards issued, however, and county supervisors said they will be meeting next Tuesday to discuss the implications of any legal challenges with their attorneys.

Please contact Will Carless directly at