Will the California Supreme Court save medical marijuana?
January 25, 2012
David Downs, Sacramento News & Review
Last October, the city of Sacramento temporarily suspended its medical-cannabis-dispensary permitting process. The reason: An unexpected court ruling from down south that put the legality of all California pot ordinances into question.
Even San Francisco, a hotbed of marijuana-law reform, froze its medical-cannabis-dispensary permitting this winter, just as dozens of others cities across the state, and now everyone nervously awaits a decision by the California Supreme Court on the very legality of such permits.
A couple dozen local groups that are seeking permits for Sacramento dispensaries—many in the central city—have been caught in limbo. Sacramento has zero permitted dispensaries, but it has an ordinance and a process intended to legalize up to three dozen clubs, which in the interim are allowed to remain open.
An October decision by California’s Second District Court of Appeals, in the case of Pack v. Long Beach, ruled that local regulations—such as permits and fees and ordinances—are preempted by federal law. City attorneys interpreted this as: 1. California cities and counties could either help the federal government prosecute what they view as illegal marijuana, or 2. just stand by idly and not issue permits. Local jurisdictions could not, according to the appeals-court ruling, actively contravene federal law with medical-marijuana-distribution permits, fees, mandates for lab testing or other ordinance regulations.
As a result, progressive California cities such as Sacramento have paused their programs. Meanwhile, other cities and counties opposed to medical marijuana are using Pack to ban dispensaries outright.
At the same time, unregulated clubs possibly have legal cover to open without playing by any rules.
If Pack stands, “we have an out-of-control industry we could not effectively regulate,” said Bob Shannon, Long Beach’s city attorney. “It’s a totally unacceptable set of circumstances, at least for us.”
Shannon’s office was going to go to the Long Beach City Council on January 17, and request a ban on all dispensaries, but then the state Supreme Court announced last week that it would in fact hear a Pack appeal.
There are about 60 dispensaries in Long Beach—and not one has a permit under the city’s spring 2010 ordinance, which called for a lottery system and steep fees to determine which operators could stay open. Long Beach has also mandated safety testing.
Long Beach dispensary operator Ryan Pack, represented by attorney Matt Pappas, sued Long Beach over its permit program in September 2010, arguing that federal law preempts localities from picking lottery winners for pot permits. Astonishingly, the appellate court upheld the interpretation in October.
The state supreme court’s timeline to make a decision is approximately nine to 12 months. Its verdict will be pivotal, of course.
The American Civil Liberties Union, several cities and national marijuana-patient lobby Americans for Safe Access have denounced the appellate court’s decision and asked the Supreme Court to de-publish it. Pack stymies regulation and leads to bans that prevent safe access, they say. Three other California appellate courts have ruled to the contrary on issues of federal pre-emption, critics note.
Shannon agrees. “The law on this issue is chaotic, and has not been consistently applied,” he said.
Supervising deputy city attorney in Sacramento Gustavo Limon Martinez told SN&R that the Supreme Court’s review of the appellate Pack opinion makes for an even more uncertain environment here in Sacramento. “It would be pure speculation to provide any comment on how the Supreme Court will rule on Pack or how that final decision may or may not impact the city’s ordinance,” he said.
Los Angeles City Attorney Asha Greenberg seemed exasperated. “With Pack, we can’t regulate, we can’t control what kind of quality products people are getting when it comes to things people eat, pesticides, potency, any of that.” Los Angeles is also mulling a ban again.
Northern California dispensary developer Debby Goldsberry said cities and counties quickly used Pack as an excuse to ban dispensaries. “Right now is the worst time to pursue a city permit almost anywhere,” she said. “Pack has had a big effect. A lot of cities are just waiting it out at this point. Some big change is coming if Pack stands.”
However, some cities are still advancing: Oakland intends to permit four groups to open new dispensaries by the month’s end, and in December, the city of Richmond permitted its first three dispensaries, said city attorney Mary Renfro.
Cities might be able to reword their permitting schemes to survive preemption, Pack notes. Arturo Sanchez, assistant to the city administrator in Oakland, indicated it could take three weeks to four months for the city to rewrite its ordinances around Pack, if it’s upheld.
But Long Beach city attorney Shannon said rewording ordinances to comply with Pack is too hard. It would mean switching from a system of “permits” to something like a “certificate of non-disallowal.”
“It doesn’t make any sense,” Shannon said.
Oakland lawyer and dispensary-permit applicant Robert Raich expects the U.S. Supreme Court to de-publish Pack. The high court has a history of upholding state law in the face of federal preemption challenges, he said.
“It was wrongly decided, and it will be de-published or review will be granted,” Raich said. “Eventually, the state Supreme Court will reverse it.”
Still, the Pack decision exposes the fault line running through the national terrain of marijuana law.
“We’ve known for some time that [regulation] isn’t consistent with federal law,” Shannon said. “Unfortunately, Long Beach just got put at the front of the class.”