Issue:  Vol. 48 / No. 11 / 15 March 2018

CA justices hear medical
pot dispensary case


California Supreme Court Justice Goodwin Liu
listens to oral arguments in the medical
marijuana dispensary case Tuesday at the
University of San Francisco.
(Photo: Shawn Calhoun/University of San Francisco)
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Following oral arguments Tuesday, it appears that the California Supreme Court was not persuaded that medical marijuana dispensaries could operate in cities that have banned them.

The main questions in front of the justices, which held a special session on the University of San Francisco campus, were: do municipalities have the power to ban medical marijuana dispensaries within their city or county limits or can state law strip them of their power to regulate land use within their borders?

The case, City of Riverside v. Inland Empire Patients Health and Wellness Center, was one of three the justices heard February 5 on the college campus.

Arguing for the wellness center, attorney J. David Nick told the justices that the city of Riverside does not have the power to ban the Inland Empire dispensary, or shut it down, for doing what state law allows it to do.

But Chief Justice Tani G. Cantil-Sakauye and Justices Carol A. Corrigan and Joyce L. Kennard quickly zeroed in on what they saw as the "crux" of the issue: that of land use.

Kennard said firmly that the power of municipalities, the governing body of a city or town, to determine how their land is used does not derive from the Medical Marijuana Program of 2003, but is a preexisting power granted them by the state constitution.

"The question," she said, "is not whether the Medical Marijuana Program gives power to cities but whether state law restricts preexisting police power."

Justice Marvin R. Baxter then asked why medical marijuana laws didn't just state plainly that municipalities could not have the power to ban dispensaries, if that is what the law intended.

California voters in 1996 passed the Proposition 215, the Compassionate Use Act, which legalized medical marijuana under state law (the federal government currently does not recognize the law); in 2004 state legislation was enacted to clarify Prop 215.

Through most of the oral argument Nick seemed on his heels because of the justices' quick challenges to his arguments. Yet Nick continually fell back to his point that municipalities cannot ban what state law made lawful.

"To allow dispensaries to be banned in Riverside would be opposite of what the voters asked for," Nick said, when they passed the Compassionate Use Act.

The justices were equally as challenging to Jeffrey V. Dunn, who argued on behalf of the city of Riverside.

While Justice Kathryn M. Werdegar acknowledged Dunn's argument that the Compassionate Use Act does not guarantee cities and counties provide access to medical marijuana and the language of the law is "limited to provide defense against criminal prosecution," she wondered if banning a dispensary would not be the exact opposite of the Compassionate Use Act.

"Does regulation mean prohibition?" she asked.

Dunn said "yes," but the justices seemed hesitant to accept his definition of the word.

Speaking about the Medical Marijuana Program, the supplemental law responsible for creating identification cards for qualified patients and caregivers, Justice Goodwin Liu asked Dunn why the county would go through the trouble of the ID cards if they have the power to ban medical marijuana outright and "be done with it?"

Liu noted the ID cards would be useless if counties had the power to prohibit medical marijuana dispensaries.

In his closing arguments, shortly after the noon alarm cut him off, filling the McLaren Conference Center with laughter, Dunn said that the purposes of the Compassionate Use Act and the Medical Marijuana Program were to provide a "safe distribution system" of medical marijuana and "that has not happened."

The justices are required to give their written ruling within 90 days.

Whatever they decide, Corrigan made clear the first place they will look for their decision is the "plain language of the law."

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