On Wednesday, January 18, the California Supreme Court announced that it would hear four important cases from several appellate districts in California regarding city’s abilities to regulate and ban medical marijuana dispensaries.
The court granted the City of Long Beach’s petition for review in the Pack case, which has caused cities statewide to question their ability to regulate medical marijuana collectives. The Second Appellate District, Div. 3, ruled several months ago that parts of the Long Beach 5.87 ordinance, regulating medical marijuana collectives within the city, were federally prohibited.
Pack’s attorney, Matthew Pappas also filed an emergency application for a temporary order prohibiting the City of Long Beach from banning collectives while the case is pending with the California Supreme Court. The court denied this request, which leaves the city of Long Beach in flux as the Pack case is being determined. According to Joe Elford, Chief Counsel for Americans for Safe Access, the Pack ruling contradicts three other Appellate Court decisions that have rejected Federal Preemption. The California Supreme Court’s determination can take months and sometimes up to a year before a decision is rendered.
According to Bob Selan, Esq., CEO of Kush Magazine, the California Supreme Court has recognized that these states’ rights issues are at the forefront of the safe access provisions that were inherent in Proposition 215 voted into law by Californians in 1996. The laws, which were further codified in SB420 in 2003 by the California Legislature, have been the subject of several controversial lawsuits pitting California medical marijuana laws against Federal Prohibition.
The ACLU has also filed an amicus curie brief requesting that the opinion of the Second Appellate District be depublished.
In anticipation of the Supreme Court’s decision to hear the Pack case, Long Beach City Council postponed voting on a ban until its February 14th meeting. Long Beach City Attorney Robert Shannon is urging the City Council to enact a ban while the case is pending since the city currently has no law to regulate the collectives in the city.
The California Supreme Court also agreed to hear two cases from Riverside and Upland. The Riverside case involves G3 Holistic in Upland, California. This case involved shutting down G3 due to the City of Upland’s outright ban on medical marijuana dispensaries through their zoning code. G3 was shut down, sued the city and the Superior Court upheld the city’s zoning code. On Appeal, the Appellate court granted G3 an injunction to remain open. When the city prevailed on appeal in November, 2011, G3 was again shut down. In December, G3 appealed to the California Supreme Court which was recently granted a review. The Riverside case also deals with the right of a city to ban dispensaries.
A fourth case will determine who has standing to sue in a medical marijuana case. Does it have to be an owner, or can a patient sue? This case, that originated in Dana Point after the city banned dispensaries, will determine if a patient has standing to sue when a city bans medical marijuana dispensaries within its municipality. Last year the Fourth District Court of Appeal dismissed an appeal by Malinda Traudt, a San Clemente woman born with cerebral palsy, epilepsy and blindness, against Dana Point saying she lacks standing to challenge the city's zoning ban on medical marijuana dispensaries. The court denied her appeal on the grounds that since the patient’s harm was indirect, she lacked standing to sue. But that contradicted the U.S. Supreme Court, which has stated if a government action causes specific harm to someone, “the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights,” according to Traudt’s attorney Jeffrey Schwartz.
This comes at a time when cities and counties are scrambling to push forward bans of any medical cannabis related businesses in their jurisdictions.
The medical marijuana community applauded the Supreme Court’s decision to hear these cases, and hopefully, this will finally give cities in California the right to regulate medical marijuana in their communities, since many cities have chosen to ban or refuse to regulate medical marijuana due to its federal illegality.
