Medical marijuana status remains hazy in California
March 02, 2012
Maura Dolan, San Francisco ChronicleCities and medical marijuana providers, facing a series of conflicting rulings, are likely to remain in legal limbo until the California Supreme Court clarifies the ability of local governments to regulate patients' pot, analysts said Friday.
"Pray that the California Supreme Court comes up with a decision as soon as possible," said com/topic/politics/thomas-jefferson-PEHST002296.topic' title='Thomas Jefferson' id='PEHST002296' class='taxInlineTagLink'>Thomas Jefferson School of Law professor Alex Kreit, who has advised the city of San Diego on medical marijuana. "The lay of the land is getting more bewildering every day."
A ruling this week that said cities could not ban dispensaries is expected to be taken up by the state high court, which already has agreed to review four other lower court decisions on medical marijuana. Once the state Supreme Court agrees to review a case, it is considered pending, and the lower court ruling cannot be cited as precedent.
The Santa Ana-based state Court of Appeal, citing the language of a state medical marijuana law, ruled unanimously Wednesday that a zoning law in Lake Forest amounted to an illegal ban on dispensaries. More than 100 local governments in California currently ban medical marijuana operations.
Legal analysts said the ruling was likely to have an impact only in the short term, particularly in disputes already in court.
"If you are going to [challenge] a dispensary ban … right now might be the time to strike," said Joe Elford, chief counsel for Americans for Safe Access, which seeks to protect the rights of medical marijuana patients.
The Santa Ana court's ruling conflicted with another Court of Appeal decision that permitted such bans. Yet another appellate court previously had said that federal law barred cities from imposing regulations that permit medical marijuana.
Legal analysts said the contradictory court decisions reflect the ambiguity of a 2003 California law that authorized dispensaries. "What this ultimately highlights is the need for a legislative solution," Kreit said. "There is only so much clarity you can provide when the law itself isn't really crystal clear."
The law professor added that it was rare to have a nearly 10-year-old law subject to wildly varying yet reasonable legal interpretations.
The Lake Forest ruling was the first in the state to conclude that bans on medical cannabis dispensaries were illegal. The court also ruled that dispensaries may sell only marijuana grown on site, another novel conclusion. Most dispensaries do not grow all the pot they sell, and activists said cultivation would be impractical in crowded cities with expensive real estate, such as San Francisco.
The California Supreme Court is not expected to resolve the various conflicts for at least another year. Even when it rules, local governments and providers still will have to grapple with federal law, which criminalizes any marijuana use or production.
While awaiting the state court ruling on its ban, Lake Forest had asked the federal government for help. Federal agents responded by shutting down the city's 38 medical marijuana dispensaries, including the one that ultimately prevailed in the case.
"Everybody is running around afraid because of what the federal government is doing," said David Michael, lead lawyer in four federal lawsuits that have been filed to prevent such interference.
Michael said he does not expect to prevail until the cases reach the U.S. 9th Circuit Court of Appeals, where he intends to argue there is a fundamental right to medical cannabis and cite laws in 16 states and Washington, D.C., that permit it.