Law School Faculty Blog
6Feb/13

Mixed Messages on Medical Marijuana

By

California Supreme Court at University of San Francisco

USF School of Law had the great pleasure of hosting oral arguments of the California Supreme Court this morning as part of the school’s centennial celebration. The arguments did not disappoint, as USF students, staff, and faculty were treated to a very lively exchange among the justices and the lawyers arguing before them. A decision about whether local governments can ban medical marijuana dispensaries hangs in the balance.

State laws protect qualified patients and their caregivers from prosecution for medical marijuana cultivation and use. But zoning laws of the City of Riverside ban medical
marijuana dispensaries as public nuisances. The case before the state’s highest court focuses on whether state law “preempts” local governments from exercising their
traditional authority to regulate land use. Unfortunately, the state has given rather mixed messages about protecting medical marijuana users while also not stepping on local toes.

This morning the justices lobbed some tough questions at lawyers for both sides. But it seemed like an especially uphill battle for the lawyers representing the medical marijuana dispensary, Inland Empire Patient’s Health and Wellness Center. This is because the State Constitution expressly protects local governmental power to regulate for the benefit of the public welfare, including by enacting zoning regulations that restrict land use. Moreover, state courts presume that local regulations are valid, unless state law clearly preempts. So the burden to prove state preemption rests heavily on the medical marijuana dispensary.

Clearly the state legislature could have expressly preempted local bans on medical marijuana dispensaries, but simply did not do so. Instead, state law appears to leave
plenty of room for local governments to exercise much of their traditional regulatory power. One key question the justices asked is whether the local government’s power to
regulate an activity includes the power to totally ban the activity. J. David Nick, attorney for the dispensary, answered that it does not. While some justices appeared skeptical
of his response, one justice later noted that the definition of the power to regulate was indeed “debatable.” Mr. Nick otherwise relied heavily on one of the stated purposes of
the state law to protect the availability of medical marijuana in a uniform and consistent manner among the counties.

As for the city’s lawyer, Jeffrey Dunn, the questions seemed a bit more forgiving. Some justices pressed him about the state law’s stated purpose of making medical marijuana
available with consistency and uniformity among the counties. Other justices probed whether the protection of “cultivation” for medical use includes “distribution” or not.
While state law protects cultivation, Dunn insisted, it does not protect distribution. Now the California Supreme Court must interpret the mixed messages within state law, including deciding these definitional questions about whether regulation includes prohibition and whether cultivation includes distribution. Given the presumptive thumb on the city’s side of the scale, the arguments did not give much comfort to the dispensary.

Although the outcome remains uncertain, what the state highest court’s session demonstrated most clearly was the strength of an independent judiciary in action. The justices were highly engaged in asking probing questions of both sides. As they sparred with each lawyer, the real conversation seemed to be the one between the justices.

Whatever the decision, the state’s highest court won’t necessarily have the last word. If voters don’t like the result, they can press state lawmakers either to clearly preempt local bans or to clearly allow local bans. In the end, it’s entirely up to the state to either allow continued local experimentation or to establish a uniform statewide stance. The state just has to say so.

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