Breaking News:We Just Won an Old Fight

California Appeals Court in Split Decision on Medical Marijuana Dispensaries

In a long-anticipated but now somewhat anticlimactic ruling, the California Fourth District Court of Appeal in Santa Ana on Wednesday decided not to decide whether localities can ban medical marijuana dispensaries, sending the case back to Orange County Superior Court for further hearings. The court did, however, reverse a lower court's ruling that federal law preempts state law.

The case, Qualified Patients Association (QPA) v. City of Anaheim, deals with an Anaheim ordinance that makes operating or working at a dispensary a misdemeanor criminal offense, but could also affect numerous other localities that have banned dispensaries. The medical marijuana advocacy group Americans for Safe Access (ASA), which filed an amicus brief in the case, has identified 133 California localities with bans in place.

QPA had opened five months before Anaheim enacted its ban and sued shortly thereafter, arguing that the state's Compassionate Use Act (CUA) and Medical Marijuana Program Act (MMPA) blocked localities from banning dispensaries. They lost in Orange County Superior Court in 2008, with the judge holding that federal drug law preempted the state's medical marijuana laws.

No, it doesn't, the appeals court held in a unanimous decision. "We agree with plaintiffs the trial court erred as a matter of law in concluding federal regulation of marijuana in the Controlled Substances Act preempted California's decision in the CUA and the MMPA to decriminalize specific medical marijuana activities under state law. We therefore reverse the judgment of dismissal and remand the matter to allow plaintiffs to pursue their declaratory judgment cause of action," said the opinion authored by Judge Richard Aronson. The court also wondered how "a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from 'criminal liability,'" as it does in the MMPA.

Still, ASA chief counsel Joe Elford, author of the brief mentioned above and who argued the case before the appeals court last September, wasn't exactly jumping for joy. He wanted the issue settled once and for all.

"While we understand the difficult nature of deciding this issue, the court's ruling delays a decision that will affect thousands of patients who remain without access to their medication because of hostile jurisdictions," he said. "The silver lining to this decision is that the court has reinstated the lawsuit and is providing the plaintiffs the opportunity to prove that dispensary bans are illegal under state law."

In addition to the plaintiffs and defendants, the case pitted medical marijuana advocates against law enforcement associations and the governments of 33 cities. Those associations and city governments all filed briefs opposing the appeal.

"We will continue to fight for the right of patients to access medical marijuana through medical marijuana dispensaries, which is provided for by the Medical Marijuana Program Act, previous case law and guidelines issued by the California Attorney General," continued Elford. "Whether or not the Anaheim case is brought before this court again, this issue will eventually be reheard and we are confident of the eventual outcome."

Santa Ana, CA
United States
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Why are we putting up with Law Enforcement legislative lobbying?

"...the case pitted medical marijuana advocates against law enforcement associations and the governments of 33 cities."

What I want to know is why we are allowing law enforcement, which is part of the executive branch of the government, to mess around with the legislative process, though lobbying and funding campaigns? To my mind, this is a clear conflict of interest. If we put the making of the laws into the hands of those enforcing the laws, we are setting ourselves up for a police state where the true voice of the citizenry is ignored and/or suppressed.

It is time to publicly call for law enforcement to stay out of the legislative process (and we have the constitution on our side.)

Brinna

That is an excellent question.  It is a path that should be thoroughly explored.  It is also a demand the People should be making of their elected "representatives" via emails, letters, faxes and phone calls.

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