State asks court to toss SD County medical marijuana suit

North County Times

North County - State officials formally asked judges to throw out San Diego County's precedent-setting lawsuit seeking to overturn California's 10-year-old medical marijuana law, saying that the only controversy over the law was in the minds of county supervisors.

State Attorney General Bill Lockyer's office argued in motions filed Tuesday in Superior Court that San Diego County supervisors simply "disliked" California's voter-approved "Compassionate Use Act," and that there was no legal reason for the courts to entertain their lawsuit.

Nathan Barankin, spokesman for Lockyer, said that the state's position was essentially that the county's lawsuit was simply a request for the courts to rule on the legality of California's law, and involved no actual parties in dispute.

"Because courts can only hear cases that involve real factual disputes between opposing parties, and because there is no actual dispute here, such a request for an advisory opinion requires dismissal of the charges," Barankin said.

He said the courts could rule on the state's motion in May.

The county of San Diego, in a move that angered local medical marijuana patients and marijuana advocacy groups, filed a lawsuit in December in federal court seeking to overturn the Compassionate Use Act, which allows the use of medicinal marijuana.

The supervisors ---- who have collectively opposed the law since it was placed on the 1996 ballot ---- argue that it should be "pre-empted" by federal law, which says that all marijuana use is illegal and that the drug has no medicinal value.

San Diego County lawyers abruptly switched the lawsuit from federal to state court in February, as a tactical move in the hopes of avoiding the U.S. Ninth Circuit Court of Appeals, which has been more friendly to marijuana supporters than to opponents in recent rulings.

County officials have been waiting for the state's response ever since, but did not return calls Tuesday.

However, county Counsel John Sansone said Monday that he would not be surprised if the state asked for a "demurrer," a motion to throw out the county's lawsuit.

San Diego County officials and marijuana advocacy groups say the lawsuit is precedent-setting because it marks the first time a county has sued to overturn any of the medical marijuana laws approved by voters in 11 states.

Barankin, meanwhile, said Tuesday that the attorney general's office also filed a motion Tuesday asking the courts to throw out San Bernardino County's medical marijuana challenge.

San Bernardino supervisors, in a show of support for San Diego County, filed their own lawsuit shortly after San Diego County's action.

San Diego County's board has largely ignored California's medical marijuana law since it was passed in 1996, and was actually chastised by its own grand jury in 2005 for doing "nothing" to help implement the law.

However, late last year, the state ordered counties to create an identification card and registration program to help medical marijuana patients ---- and law enforcement officials ---- by clearly identifying who could use the drug legally under state law.

But, by a 3-2 vote, with Supervisors Greg Cox and Ron Roberts opposed, the board voted in December to defy the state's orders.

Shortly after that, the board voted 4-0, with Roberts absent, to actually sue to try to overturn the Compassionate Use Act itself, and named the state Department of Health Services and department Director Sandra Shewry as defendants.

But the state's motion Tuesday argued that the county artificially created an issue for the courts to review the Compassionate Use Act.

"San Diego's political leadership cannot create a ripe controversy by threatening to disobey the law," the motion stated.

By Gig Conaughton