Smoke Bomb

November 15, 2011
/ Author: Rick

This morning’s newspaper brought the welcome news that the Fresno County Board of Supervisors was going to consider transforming their illegal local ordinance into a probably-legal local ordinance.

This would have been a move welcomed not only by local patients who grow their own medicine, but also by concerned citizens who think that in times when government budgets are limited, money should not be spent on unnecessary lawsuits.

There’s been a lot of talk about alleged abuses of the medical marijuana statutes passed by both the State legislature and the voters of the State of California. In fact, there’s been a lot more said about alleged abuses than there have been abuses. The majority of the complaints take the same form as those about people who use handicapped parking: “I’m not a doctor, but I can tell just by looking that that person does not need to be using handicapped parking.” Similarly, though lacking even a basic Certified Nursing Assistant degree that would allow them to clean up crap, the Fresno County Board of Supervisors is more than willing to dish out their own load.

But let’s assume, just for a moment, that the Board and its supporters was right. The solution is not to take away everyone’s medicine. The solution is to go after the source. If you had a doctor who was handing out prescriptions for Vicodin like it was candy, you wouldn’t suddenly outlaw Vicodin. You would target the doctor.

Oh, wait. That would require following the laws of the State of California — something which the Fresno County Board of Supervisors has already clearly stated it does not wish to do.

Instead, the Board voted today to leave the illegal version of their ordinance in place.

That virtually guarantees that the ordinance will be ineffective and will cost the County money. Sure, recent (lower) court rulings have favored the attempts of various counties to shut down marijuana dispensaries and collectives. And those rulings might even be upheld by the California Supreme Court if it decides that they are not pre-empted, or do not conflict with, State law.

Fresno County’s anti-marijuana ordinance, though, goes farther. At the very least, the County is going to be paying legal fees to defend the indefensible ban on a private citizen’s right to grow their own medicine.

Why? Because no true California court can argue (with a straight face) that the Compassionate Use Act isn’t in direct contradiction to such ordinances. The text of the Compassionate Use Act, voted into law by the voters of the State of California and therefore — under our State Constitution — the pre-eminent law of the land, states (among other things):

Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

That’s now part of the California Health and Safety Code, section 11362.5 subsection (d).

It really sounds like some people — in this case, the Fresno County Board of Supervisors — think that the solution is to enact new laws with different numbers. “The State law says that Section 11357 and Section 11358 shall not apply? No problem! We’ll call them something else and reapply them.”

But if it’s that easy, then we truly do not have either a democratic republic, or a State where the Rule of Law means anything.

The fact of the matter is that by refusing to even consider the recommendations of the citizen committee they themselves created (and on which I briefly served, although I believed all along it was a joke meant to distract us), the Fresno County Board of Supervisors has thrown a huge smoke bomb into the debate over the appropriate application of California’s medical marijuana laws. Instead of the Supervisors doing what’s both right and best for our County, the courts are going to have to sort it out.

And the County will be footing the bill.

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