ASA director Steph Sherer, and other critics of the lawsuit, assert that a subdistrict of a state cannot sue the state itself in federal court. A letter delivered by medical cannabis supporters to supervisors this morning reemphasized their postiion that the lawsuit has no merit. "Unambiguous binding Ninth Circuit precedent clearly holds that as a political subdivision of the State, San Diego County has no standing to sue the State in federal court alleging claims premised upon the Supremacy Clause of the U.S. Constitution," reads the letter.

"The case law is very clear," said Sherer who accompanied the patient plaintiffs to the Supervisor's meeting today.

"We went in and testified in front of the board and held a press conference at noon and asked them for one more chance to remove their lawsuit and they said no, so we are intervening," said Sherer. "We feel very confident that this whole case is going to be dropped after the attorney general files the motion to dismiss. But just in case, we wanted to make sure that someone was looked out not just for California, but for the patients of California."

San Diego County filed its complaint last Friday in U.S. District Court in San Diego. The lawsuit asks the courts to decide whether federal law prohibiting the use of marijuana for any purpose pre-empts the Prop. 215. The legal action also seeks to prevent the state of California from enforcing the Act and nullifying the will of the voters.

"We opposed Prop. 215 when it came up: that isn't the point," Bill Horn, the board's chairman told the North County Times. "The issue is, the state's asking the county to do something here that they know darn well is illegal…don't ask us to break federal law."

Attorney John Sansone, who heads San Diego County County Counsel's office, says the Board of Supervisors felt deeply uncomfortable with the state's insistence that they issue medical marijuana identification cards.

"The Board of Supervisors expressed the view that the state's mandate of the county to issue medical marijuana identity cards was, as a matter of principle, putting them in an untenable position because of the fact that medical marijuana is a crime under federal law," said Sansone. "The Supervisors wanted the courts to determine that federal law is preeminent over the state law and they are looking to the courts for guidance on the issue and once they receive it they will proceed accordingly."

Sansone declined to comment directly on the allegation that the county has no standing in the case. "We have filed [the lawsuit] and we are prepared to make arguments that we have a right to do that," he said.

"I think this is an extremely misguided case by the County of San Diego both in intent and legal merit," said Joe Elford, ASA's chief counsel, "We think the attorney general has strong legal arguments in their arsenal and we think they will use everything in their arsenal to get this case dismissed in federal court. Why intervene? Well you never know..."

According to the San Diego lawsuit, Prop. 215 contradicts federal law and violates Article VI of the Constitution, the "Supremacy Clause" which states that the Constitution and federal laws "shall be the supreme law of the land" over state laws.

The County of San Diego, which filed the lawsuit on behalf of the Supervisors, is asserting that California cannot enact laws allowing the use of medical marijuana because the United States is a party to the Single Convention on Narcotic Drugs, an international treaty signed in 1961 by 150 counties.

The ACLU sent the San Diego Board of Supervisors a letter last week outlining the legal shortcomings of their proposed lawsuit.

According to the ACLU, a key legal precedent in the case was set in the recent U.S. Supreme Court decision, Gonzales V. Oregon. In that case, the court overturned the Attorney General's directive that physicians who assist the suicide of the terminally ill under Oregon law were violating the federal Controlled Substances Act. ACLU lawyers says this case makes it clear that federal Controlled Substances Act does not pre-empt California's medical cannabis laws or efforts by state and local officials to carry out the medical cannabis ID card program.

ACLU lawyers further note that the June 2005 Supreme Court decision in Gonzales V. Raich did not pre-empt California's medical cannabis laws or question their validity. It simply affirmed that the Commerce Clause allows federal law enforcement officers to enforce federal marijuana laws, even in states where medical marijuana is legal under state law.

San Diego medical cannabis activists are still fuming over a December 12th raid by federal agents against 13 local medical marijuana dispensaries. Agents seized large quantities of medical cannabis, computers and patient records during the bust which was the largest of its kind in California. Of the 13 dispensaries that were raided, Sherer says 12 have reopened and additional dispensaries have opened since the raid.

"I just hope that the law enforcement of San Diego doesn't interpret this to mean that the current state medical marijuana laws do not stand," says Sherer. "Patients are deeply frightened and they fear for this law that they have been fighting to implement for the last ten years and they continue to fight for. The law still stands and law enforcement should act accordingly."

Medical marijuana activists in San Diego filed notice last Wednesday that they would begin to gather signatures for a ballot initiative to impose a two-term limit for Supervisors. All five of the current Supervisors have served at least three four-year terms.

A poll of San Diego County voters, paid for by the Marijuana Policy Project (MPP), shows strong support for Prop. 215 and deep opposition to the Supervisor's lawsuit. A three to one majority of voters said they would be less likely to vote for supervisors that voted to pursue the lawsuit.

According to the MPP, a random survey of San Diego County voters, conducted by Evans/McDonough Company, Inc., revealed that 67 percent said they support Proposition 215, while only 30 percent said they oppose it. Fully 70 percent said the county "should follow state law and issue medical marijuana ID cards to qualifying patients." And 78 percent agreed with the statement, "The San Diego County Board of Supervisors should not be spending taxpayer money suing the state to try to overturn California's medical marijuana law," while only 21 percent disagreed. An even larger majority, 80 percent, agreed that the proposed suit "is wasting taxpayers' money."

MPP reports that the survey also suggests that the suit will cost supervisors political support, with 62 percent indicating they would be less likely to vote for their supervisor's reelection if he or she voted to sue to overturn Prop. 215. Only 20 percent said they would be more likely to vote for such a supervisor.The poll, conducted by phone Jan. 3-4, 2006, has a margin of error of 4.38 percent.

The motion to intervene in the San Diego lawsuit lists several medial cannabis patients as proposed intervenors including Wendy Christakes, a 29-year old mother and resident of San Diego who has been using marijuana since December 2003 to treat chronic pain resulting from herniated discs and the removal of a portion of her backbone.

Pamela Sakuda, a 58-year old stage-four rectal cancer patient who uses medical marijuana and Norbert Litzinger, her husband and primary caregiver, are also listed as intervenors. In addition to patients, the group is representing as a proposed intervenor Dr. Stephen O’Brien, who specializes in HIV/AIDS treatment in Oakland, California.

“Medical marijuana patients are running out of time,” said Christakes in a statement. “While the Supervisors play politics and waste our money on frivolous lawsuits, we have to find a way to survive.”