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California Supreme Court Rules Localities Can Ban Medical Marijuana Dispensaries [FEATURE]

In a ruling that will leave California's patchwork approach to medical marijuana dispensary regulation in place, the state Supreme Court ruled Monday that local governments can ban dispensaries from operating within their jurisdictions. For patients, that means access to medical marijuana at dispensaries will depend on the political currents in their city or county.

The decision likely means that cities and counties that had been holding off on banning dispensaries will now take steps to do so. It will also increase pressure on the state legislature to come up with a means of statewide medical marijuana regulation, something it is working on right now.

The case was City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., in which Inland Empire sued the city after Riverside using its zoning power to declare that dispensaries were nuisances and ordered them shut down. Inland Empire went to court to block the city from forcing it to close.

The decision was eagerly -- and anxiously -- awaited by all sides. Cases on local bans had been percolating through the state court system for several years, with state appeals courts splitting on the issue. An appeals court had earlier sided with the city of Riverside, but a trial court last summer held that Riverside County could not ban dispensaries, and an appeals court in Southern California had struck down Los Angeles County's ban on dispensaries.

The move by the city of Riverside was part of a broader counter-offensive against the proliferation of dispensaries after the Obama administration signaled in 2009 that it would take a largely hands-off approach. According to the medical marijuana defense group Americans for Safe Access, more than 200 cities or counties in the state have since moved to ban dispensaries. That move toward local bans has since slowed, in part because of uncertainty over their legality and in part because the federal offensive since the Obama administration shifted gears in the fall of 2011 has driven hundreds of dispensaries out of business.

Patient and industry advocates had argued that allowing localities to ban dispensaries ran counter to the intent of the state's voter-approved medical marijuana law. The law called for making medical marijuana accessible to people with doctors' recommendations for its use. But the state's high court sided with the localities.

"The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not," wrote Justice Marvin Baxter for a unanimous court. "The CUA and the MMP [state medical marijuana laws] do not expressly or impliedly preempt Riverside's zoning provisions declaring a medical marijuana dispensary, as therein defined, to be a prohibited use, and a public nuisance, anywhere within the city limits."

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," said Joe Elford, chief counsel with Americans for Safe Access, which filed an amicus 'friend of the court' brief in the case. "Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

"There is nothing surprising about this; it affirms the status quo," said Dale Gieringer, longtime head of California NORML. "I've been following the court cases and reading the state constitution, and it seems pretty clear that local governments have broad authority under California law."

"Today's decision allowing localities to ban will likely lead to reduced patient access in California unless the state finally steps up to provide regulatory oversight and guidance," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "The good news though is that this problem is fixable. It is time for the state legislature to enact state-wide medical marijuana oversight and regulation that both protects patient access and eases the burden on localities to deal with this issue on their own. Localities will stop enacting bans once the state has stepped up and assumed its responsibility to regulate."

"We're hoping that we can fix this by having some sort of state regulation system where people have access wherever they live in the state, if not by local dispensaries, then at least by some sort of delivery service," Gieringer said. "I think they're trying very hard to do something this year. Remember, last year, the Assembly passed a regulation bill and the Senate came very close, and now we have the leader of the state Senate supporting the same concept, so I think the prospects are pretty good for action."

The statewide medical marijuana regulation bills this year are Assembly Bill 473, sponsored by Assemblyman Tom Ammiano (D-San Francisco), and Senate Bill 439, sponsored by Senate President Pro Tem Darrell Steinberg (D-Sacramento). Both bills have passed their first committee votes and are supported by a broad coalition of patients, dispensaries, and law enforcement groups.

But until and unless statewide regulation is passed in Sacramento, the battle over patient access to dispensaries is now going to be fought in city council chambers and county supervisor meeting rooms in cities and counties across the state. That is going to mean differential access to medical marijuana depending on the political complexion of the localities where patients reside.

San Francisco, CA
United States

Medical Marijuana Update

Lots of action in California this past week, including more raids and more threat letters, plus action in various state legislatures and elsewhere. Let's get to it:

California

Last Wednesday, local law enforcement raided three San Bernardino dispensaries. City Attorney's office officials, and police, fire, and code enforcement officers served search warrants and issued demands that they cease and desist from allegedly unlawful activities. The dispensaries hit were Trio Holistic Center, Berdo Medical Center, and THC First Time Patients. San Bernardino authorities banned dispensaries last year. In February, they raided three other dispensaries.

Last Tuesday, the Vallejo city council approved a 45-day moratorium on new dispensary applications. A number of dispensaries already operate in Vallejo without the city's permission, although voters last year approved a 10% tax on their sales. The city quit accepting business license tax applications for dispensaries in January. City officials said they need time to sort out the confusion. Now, the city must move forward to either regulate or ban dispensaries, although the moratorium could be extended another two years.

On Wednesday, Vallejo police returned marijuana to two dispensaries raided last year. Nearly 60 pounds of medical marijuana and hundreds of dead plants were returned to Better Health Group and the LES collective. Police gave the property back after a judge dismissed the criminal cases against the two dispensaries. Police last year raided numerous Vallejo dispensaries, but have lost every criminal case they have brought, and prosecutors have dropped the charges in others.

On Tuesday, a medical marijuana regulation bill passed the Senate Public Safety Committee. Senate Bill 439 is described by its sponsor, Sen. Steinberg, as a placeholder, "a vehicle to engage stakeholders" in the process of legislating statewide regulations. Steinberg said he is in close contact with Assemblyman Tom Ammiano, who has introduced companion legislation, Assembly Bill 473, and that it could take one to two years to complete the process.

Also on Tuesday, the Senate Public Safety Committee refused to pass a drugged driving bill that could impact medical marijuana patients. The bill, Senate Bill 289, would create a zero-tolerance drugged driving offense, but the committee was skeptical. It did, however, leave the door open for the bill to be amended.

Also on Tuesday, word emerged that federal prosecutors have sent out more dispensary threat letters. They were issued by the office of US Attorney for the Northern District of California Melinda Haag and target the landlords of dispensaries in San Jose, San Francisco, and Ukiah. The letters warn landlords that the facilities are operating too close to a school or park. In addition, the letters warn landlords that they are liable for forfeiture under USC Title 21, Section 881(a) 7. Unlike some previous letters, they do not threaten immediate prosecution or set a deadline for compliance.

Colorado

Last Thursday, the Colorado Court of Appeals ruled that employers can fire medical marijuana users who fail a drug test. The ruling came in the case of a quadriplegic telephone operator for the Dish Network, who was fired after failing a drug test. He argued that he shouldn't have been fired because his actions were legal under state law, but the court held that because marijuana remains illegal under federal law, the state law he cited did not apply.

Hawaii

On Wednesday, two medical marijuana bills were approved by the state legislature. House Bill 668 transfers control of the medical marijuana program from the Department of Public Safety to the Department of Public Health, while Senate Bill 642 increases the amount of medicine a patient can possess from three to four ounces and allows patients to have up to seven plants, but also amends the law so that only a patient's primary care physician can recommend marijuana.

Idaho

On Monday, Idaho medical marijuana activists fought back after authorities seized their children. The children were taken from a Boise couple and a Boise single mom who are leading Idaho activists after a child at the school their children attended fell ill and marijuana was blamed. Police and child protective services workers went to the home while the parents were on a retreat and took the kids, as well as some marijuana and paraphernalia. One set of kids has been returned, the other two remain in foster care.

Maryland

On Wednesday, a spokeswoman for Gov. Martin O'Malley confirmed he will sign a medical marijuana bill. The formal signing is set for Thursday. The bill allows academic medical research centers to establish programs to dispense marijuana to sick patients.

New Hampshire

 

On Tuesday, Gov. Maggie Hassan said she wants home cultivation stricken from a pending medical marijuana bill. Bill supporters said they were disappointed and that patients with terminal conditions couldn't wait the 18 months to two years it could take for dispensaries to get up and running. The governor "shares the concerns of law enforcement about the state's ability to effectively regulate a home-grow option," spokesman Marc Goldberg said in a statement. Hassan voted for a medical marijuana bill in 2009 that included a home-grow option. The proposal is now being rewritten in a Senate committee.

New Mexico

On Tuesday, the state Department of Health agreed that PTSD should remain a qualifying condition for medical marijuana. The move upheld a recommendation by the Medical Cannabis Program's Medical Advisory Board, which had faced an effort to withdraw PTSD as a qualifying condition.

 

Colorado Appeals Court Rules Employers Can Fire Marijuana Users

Colorado employers can legally fire marijuana users from their jobs, the state Court of Appeals ruled Thursday in a 2-1 decision. Although the case was brought by a medical marijuana user, the ruling will have any even broader impact given that the state has now legalized marijuana for all adults.

The case was Coats v. Dish Network LLC, in which Brandon Coats, a quadriplegic telephone operator for Dish Network and registered medical marijuana patient, was fired by Dish Network after testing positive for marijuana during a drug test. Paralyzed by a car crash as a teen, Coats had been a registered patient since 2009. Dish Network cited no other reason for firing Coats other than his positive drug test result.

Coats challenged his firing, citing Colorado's Lawful Activities statute, which prohibits employers from firing workers for "engaging in any legal activity off the premises of the employer during nonworking hours." But both the trial court and now the appeals court rejected his challenge, holding that because marijuana remains illegal under federal law, the Lawful Activities statute does not apply.

"For an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law," the appeals court said.

Judge John Webb dissented, saying he could not find a case addressing whether Colorado judges must consider federal law in determining the meaning of the Colorado statute.

Coats' attorney, Michael Evans, said in a statement that the ruling will have a broad impact in the state.

"This case not only impacts Mr. Coats, but also some 127,816 medical marijuana patient-employees in Colorado who could be summarily terminated even if they are in legal compliance with Colorado state law," Evans said.

And with adult marijuana legalization now in place in the state, it is not just medical marijuana users who stand to be affected.

The ruling is expected to be appealed.

Similar rulings allowing employers to fire medical marijuana users have been upheld by courts in other states, including California, Michigan, and Montana.

Denver, CO
United States

Medical Marijuana Update

Rhode Island is set to see its first dispensary open next, Mendocino County faces down the feds, and more news from around the country. Let's get to it:

California

On Tuesday, the city of Concord banned outdoor grows. The "outdoor cultivation of medical marijuana" is banned by ordinance in order to properly "maintain and protect the public health, safety and welfare of the citizens of Concord." The ban came despite appeals from a number of residents to delay or defeat the ordinance. The vote was unanimous.

Also on Tuesday, Mendocino County officials announced they had reached agreement with federal prosecutors on limiting the feds' fishing expedition into the county's legal medical marijuana growers' program. No personal identifying information from the county's program will be released to US Attorney Melinda Haag. In October, Haag had demanded just about anything to do with the program -- names and locations of pot gardeners, county bank records, "any and all" legal correspondence, etc. The county fought back, hiring a San Francisco attorney to fight the federal subpoena. Now, the feds have backed down.

Also on Tuesday, Humboldt County supervisors okayed a Myrtletown dispensary. The Humboldt Collective had operated there, but had its permit revoked after a former director was arrested last year in Pennsylvania on marijuana trafficking charges. The new directors have made minor changes sought by the county, and now they have received permission to remain in business.

Florida

On Wednesday, activists were meeting with a key state senator in a bid to keep a medical marijuana bill alive. Senator Aaron Bean, chair of the Senate Health Policy Committee, has the bill, Senate Bill 1250, locked up in committee. No word yet on whether he has been moved to allow the bill to progress. The bill is also known as the Cathy Jordan Medical Cannabis Act, after a medical marijuana patient who was arrested along with her husband for growing her medicine. Charges against the couple were dropped last week.

Maine

On Friday and Saturday, dispensary workers rallied to protest working conditions. The workers' target was Wellness Connection of Maine, which operates four dispensaries in the state. Workers said it was ignoring their concerns about working conditions and refusing to recognize their union. Demonstrations took place in Hallowell Friday and Portland Saturday. Wellness Connection said it was committed to caring for its workers and doesn't object if they want to join a union.

Massachusetts

On Wednesday, state regulators were debating proposed state medical marijuana rules. One proposed rule would require dispensaries to test their products for contaminants. Americans for Safe Access is calling for state-licensed, independent labs that would not be at risk of federal sanctions because they would not test narcotics and other federally regulated drugs. The proposed rules also include state inspections of dispensaries "at any time without prior notice."

Michigan

Last Wednesday, the state Supreme Court said it would review the legality of a city ban on medical marijuana-related activities. The city of Wyoming had passed a zoning ordinance barring the use, manufacture, or cultivation of medical marijuana, and the court said it wants to review whether the ordinance is superseded by the state's voter-approved medical marijuana law. Significantly, the court also plans to consider if the state law is preempted by a federal law that makes marijuana use illegal.

Montana

Last Friday, a drugged driving bill that could affect patients was signed into law. The bill creates a 5 nanogram per milliliter per se drugged driving level for THC. In addition to the penalties for drugged driving, if convicted under the law, patients would face revocation of their state registry identification card.

New Jersey

On Tuesday, Gov. Chris Christie proposed $1.6 million for the state's medical marijuana program in his state budget. That's more than twice the current spending level. The budget assumes that more dispensaries will open next year. So far, only one out of the six authorized by the state is actually in operation. But patient advocates said a greater budget wouldn't help patients until onerous regulations imposed by the Christie administration are revised.

Oregon

On Tuesday, a bill allowing medical marijuana for PTSD passed the Senate Judiciary Committee. Senate Bill 281 now moves to the Senate floor. Currently, medical marijuana is currently allowed for patients with certain debilitating medical conditions such as cancer, glaucoma, Alzheimer's disease, HIV and AIDS. The bill would add PTSD to the list.

Rhode Island

Last Thursday, what will be the state's first dispensary got its license. The Thomas C. Slater Compassion Center is now set to open April 19.

Medical Marijuana Update

There is action in various state houses, Michiganders continue to tussle over their medical marijuana law, and there's an investigation going on in Maine. Let's get to it:

California

Last Thursday, the California Coastal Commission approved Imperial Beach zoning law changes that banned dispensaries from operating in the city. The city had approved the ban in July 2011, but action was delayed while opponents of the ban sought unsuccessfully to overturn it with a municipal initiative last November. The change in local zoning will not impact the ability for up to three people to form a collective to cultivate marijuana in Imperial Beach.

Maine

Last Friday, state officials said they were investigating a cultivation center that supplies the state's largest dispensary operator. The grow operation supplies Wellness Connection of Maine's four dispensaries, which all closed last week. A Wellness Connection spokesperson said the state was conducting "a comprehensive regulatory inspection" and that there was no connection between the investigation and the dispensary closings. State officials had no further comment.

Maryland

Last Friday, the governor's office suggested he would support a pending medical marijuana bill. Joshua Sharfstein, Gov. Martin O’Malley’s secretary of Health and Mental Hygiene, testified before lawmakers on Friday that a bill sponsored by Del. Dan K. Morhaim (D), a Baltimore County doctor, contained most of the provisions the governor could support. The bill would allow academic medical centers in the state to operate "compassionate use programs" beginning in 2016.

Massachusetts

Last Friday, the Massachusetts Medical Society called for research on marijuana's medical uses. The move signals an evolution in the thinking of the doctors' group, which had publicly opposed passage of the state's medical marijuana initiative last year. The group called for research to ensure that marijuana is subjected to the same rigorous testing as prescription drugs.

Michigan

Last Tuesday, a circuit court judge ruled that medical marijuana users can collect unemployment benefits. Ingham County Circuit Judge William Collette overturned a decision by a state commission that found a state-approved medical marijuana user, who was fired from her job after failing a drug test, was not eligible for the benefits. Collette ruled that the worker had already informed her employer of her medical marijuana use and the drug test "merely demonstrated what she had informed her employer of prior to the test -- that she uses medical marijuana."

Last Wednesday, police in Grand Rapids raided three dispensaries. Dispensaries were ruled illegal by the state Supreme Court last month, and the state attorney general has given local prosecutors the go-ahead to start shutting them down. At least one dispensary has already reopened, with the proprietor arguing that it is not violating the law because it requires caregivers to be present with patients during transactions. No charges have been filed yet.

Last Friday, a circuit court judge ruled that dispensaries are bound by local zoning laws. Washtenaw County Circuit Court Judge Archie Brown made the ruling in refusing dismiss a complaint against two Ypsilanti Township residents who are accused of growing more marijuana than the town's zoning ordinance allows. Under the Michigan Medical Marijuana Act, caregivers can grow up to 72 plants for patients, but township code only allowed the 12 plants approved for an individual patient. The case was the first court challenge to zoning laws restricting medical marijuana in the state.

Minnesota

On Wednesday, a Public Policy Polling survey found that 65% of state voters support medical marijuana. The results of the statewide survey come as state lawmakers prepare a bipartisan bill that would make it legal for Minnesota residents with debilitating medical conditions, such as cancer, multiple sclerosis, and HIV/AIDS, to access and use medical marijuana if advised to do so by their physicians. Its introduction is expected within the next two weeks, at which time details of the proposal will be made available. The poll found a strong majority (54%) of voters in the state would disapprove of their county sheriff or county attorney working to defeat such a bill, while only 24% would approve.Two-thirds (66%) think Gov. Mark Dayton should sign it if it is approved by the legislature.

Missouri

Last Friday, a medical marijuana bill was reintroduced in the state legislature. The bill, House Bill 688, would allow patients with debilitating conditions, such as HIV/AIDS, cancer, and multiple sclerosis, to use and possess marijuana for medical purposes if their doctors recommend it. The bill would put the question to voters on the November 2014 general election ballot.

New Hampshire

Last Thursday, a medical marijuana bill advanced in the House. The Health Human Services and Elderly Affairs Committee voted 14-1 to recommend that the full House pass the bill after amending it to block out of state patients from buying marijuana at the five dispensaries the bill envisions. Out of state patients could bring up to two ounces of their medicine with them. The amended bill also lowers the number of plants allowed from four adults to three and reduces the area of a legal grow site from 100 square feet to 50.

Michigan Bill to Allow Medical Marijuana Sales Filed

A little more than a week after the state Supreme Court ruled that Michigan's medical marijuana law doesn't allow for dispensaries, a state lawmaker is ready to file a bill that would allow cities and counties to approve them via local option.

State Rep. Mike Callton (R-Nashville) said Monday he would introduce House Bill 4271 Tuesday. The bill already has bipartisan support, with eight Democrat and eight Republican cosponsors.

A similar bill died in committee last year, and medical marijuana foe Attorney General Bill Schuette (R) has said no further medical marijuana bills are needed this year, but Callton told the Lansing State Journal he thought the measure would fare better this time around.

"I'm a Republican and I'm from a conservative area, but I've seen growing support from a lot of other legislators for this from both parties," Callton  said. "And now, with this court ruling, it becomes much more important. I want people to be able to take a recommendation for (marijuana) from their doctor and be able to go to what we're calling a provisionary center."

Not only has Schuette come out against any new medical marijuana bills, his office will this week send out letters to all 83 county prosecutors instructing them to shut down anything resembling a dispensary, his office said on Friday.

Between the state Supreme Court ruling and Schuette's aggressive posture, Michigan dispensary operators -- there may be as many as a hundred statewide -- are running scared. Many have closed their doors, while others remain open only on the down low.

"Nobody I know in this state is advertising this service anymore -- it's all going to be word-of-mouth from now on," Holice Wood, owner of a compassion club, told the State Journal.

The state's 125,000 registered medical marijuana patients now must grow their medicine themselves, rely on a caregiver (limited to no more than five patients), or resort to the black market. Patients need safe access to their medicine, they said.

"It's cost-prohibitive to grow this yourself, and it's labor intensive," said Alec McKelvey Jr., 41, of Warren, a state-registered patient who uses marijuana to fight the side effects of cancer treatments. "You have to spend hundreds of dollars on equipment and really know what you're doing to get a quality plant that has no parasites or mold -- that would make my health worse," McKelvey said.

Lansing, MI
United States

AZ Court Says You Don't Have to Be High to Get a DUI

An Arizona appeals court has ruled that marijuana users don't need to be actually impaired to be successfully prosecuted for driving under the influence. The ruling came Tuesday in the case of a man who tested positive for an inactive marijuana metabolite that remains in the body for weeks after the high from smoking marijuana has worn off.

The ruling in Arizona v. Shilgevorkyan overturned a decision by a superior court judge who said that it didn't make sense to prosecute people for driving under the influence if they're not actually under the influence.

The ruling turned on a close reading of legislative intent in writing the state's DUID law. The legislation specified the presence of "the metabolite" of THC, and Shilgevorkyan had argued that lawmakers meant "hydroxy-THC, the metabolite which would indicate current impairment, not carboxy-THC, an inactive metabolite that indicates only usage some time in the past.

The appeals court disagreed, citing its decisions on earlier challenges to the DUID. "The legislature intended to create a 'per se prohibition' and a 'flat ban on driving with any proscribed drug in one's system," the court noted. "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Because the law was drafted to protect public safety, the appeals court said, it should be interpreted broadly to include inactive as well as active compounds.

But Superior Court Commissioner Myra Harris, who had ruled on Shilgevorkyan's behalf, warned in her earlier opinion that the appeals court's interpretation of the law would result in people, including out of state medical marijuana patients, being charged with DUI when they are not impaired.

"Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona," Harris said in her 2012 ruling upholding the dismissal. "It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier."

Shilgevorkyan's attorney said he plans to appeal to the state Supreme Court.

Phoenix, AZ
United States

Michigan Supreme Court Rules Against Medical Marijuana Shops

In a ruling issued Friday, the Michigan Supreme Court held that it is illegal to sell medical marijuana through dispensaries. That means Michigan patients will either have to grow their own or rely on a designated caregiver, who is limited to providing for no more than five patients.

no dispensaries for Michigan (wikimedia.org)
The 4-1 decision in Michigan v. Compassionate Apothecary (scroll down past the syllabus) upheld an earlier appellate court finding that the state's voter-approved 2008 medical marijuana law does not allow people to sell medical marijuana to each other, even if they are registered patients.

The medical marijuana law says registered patients can possess up to 2 ½ ounces of marijuana and grow up to 12 plants in an enclosed space, but it does not mention dispensaries or otherwise say how patients might obtain their medicine.

"The Court of Appeals reached the correct conclusion that defendants are not entitled to operate a business that facilitates patient-to-patient sales of marijuana," wrote Chief Justice Robert Young for the majority.

The owners of Compassionate Apothecary had argued that their business wasn't illegal because the law allowed for the "delivery" and "transfer" of marijuana, but the high court wasn't buying. The shop could be shut down as a "public nuisance," the court affirmed.

Detroit attorney Matthew Abel, a specialist in the state's medical marijuana law, told the Associated Press the decision had settled the issue in the courts and it was now up to elected representatives to act.

"This is the end of the road. This is it," said Abel. "It will be a mess until the legislature clarifies what kinds of business entities are allowed to exist."

Ardent medical marijuana foe Attorney General Bill Schuette has yet to comment on Friday's decision, but when the appeals court ruled the same way last year, he called it "a huge victory for public safety."

Lansing, MI
United States

New Jersey Supreme Court Protects Rights in Pregnancy Case

The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.

Trenton, NJ
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

Drug War Issues

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