Supreme Court Won't Decide if Federal Law Pre-Empts Local Medical Pot Regulations

Aug 24, 2012
ACLU of Northern California

Page Media

ACLU of Northern CA

The state Supreme Court has dismissed review of a case centering on whether federal law pre-empts local medical marijuana regulations, pulling the plug on a proceeding that advocates and opponents once hoped would offer guidance in a wildly uncertain area of law.

Noting that parties had dropped their disagreement over federal pre-emption and pointing to the fact Long Beach has abandoned the city ordinance in question, the justices on Wednesday unanimously declared the case moot.

The decision means the 2nd District's controversial appellate ruling, handed down in October as a publishdate opinion, will be revived - for now as an unpublishdate opinion, according to court rules.

"It reinstates, at least as to the city of Long Beach, the decision of the Court of Appeal," Long Beach City Attorney Robert E. Shannon said, "which means the city cannot enact any regulatory scheme that is seen to permit collectives."

The appellate opinion, which the state's high court agreed in January to review, found that federal law prohibiting cannabis pre-empts certain provisions of the Long Beach ordinance, such as the requirement dispensaries obtain a city-issued permit to operate. Such affirmative provisions "authorized the use of medical marijuana rather than merely decriminalizing it," the opinion said.

In the wake of the ruling, dozens of cities scrambled to review their own regulations. Many, including Long Beach, opted simply to ban storefront shops, claiming the decision left them unable to regulate even dispensaries' most basic parameters, such as making sure electrical wiring was up to code.

"That impediment has now been removed," said M. Allen Hopper, criminal justice and drug policy director for the American Civil Liberties Union of Northern California, which filed an amicus brief supporting dismissal of the case. Pack v. Superior Court (City of Long Beach), S197169.

Medical marijuana patients Ryan Pack and Anthony Gayle, who reportedly were trying to open a dispensary in Long Beach, sued the city in 2010, claiming the federal Controlled Substances Act pre-empts enforcement of the ordinance.

Advocates arguing federal pre-emption struck many as counter-intuitive. Joseph D. Elford, general counsel for the advocacy group Americans for Safe Access, called the case "an aberration."

"It was one of our own that made the federal pre-emption argument," he said, "which is hopefully not likely to occur again in the future."

Lake Forest sole practitioner Matthew S. Pappas, who represented Pack and Gayle, jettisoned the pre-emption argument in his briefs to the Supreme Court, instead pleading numerous "unrelated issues not raised or decided at any prior stage of this proceeding," the dismissal ruling says. He didn't respond to requests for comment.

Cheering Wednesday's ruling, Hopper of the ACLU and other medical marijuana advocates said the resulting depublication of the Pack case means cities' hands are no longer tied when it comes to regulating dispensaries. Unpublishdate cases aren't binding precedent.

"There is no legal requirement or legal reason for cities to ban," Hopper said, adding that some case law, including a suit currently under review by the state Supreme Court, suggests bans themselves are unlawful.

But in Los Angeles, which recently banned dispensaries and other commercial marijuana transactions, Special Assistant City Attorney Jane E. Usher said the high court's dismissal changes little in her eyes. While the appellate decision may no longer be binding, she said, it nevertheless gives a sense of how the appellate court views the issue of pre-emption.

"Every California lawyer should anticipate that the Second District Court of Appeal will continue to prohibit cities from affirmatively regulating medical marijuana collectives, consistent with their federal pre-emption ruling in Pack," she said. "There is just no legal support for any other conclusion since the California Supreme Court took no action on the merits of the Court of Appeal decision."

Hopper rebutted that argument, noting that other publishdate appellate cases have upheld regulations permitting dispensaries. He accused local officials in Los Angeles and elsewhere of claiming vagaries in the legal landscape in orderto provide cover for banning the shops.

Perhaps not surprising in such a contentious area of law, city officials have claimed advocates are doing precisely the same thing to further their own causes.

Hopper didn't deny the assertion. Instead, he defended proponents' tactics.

"We as advocates can advocate," he said, "but it's local government officials' responsibility to implement valid state laws."

By Ben Adlin, Staff Writer (The Daily Journal)