The Great August decision of 2010!!
By Christopher Glew
Historical events that occurred on August 18:
1289—Pope Nicolaus IV publishes decree Supra Montem, 1873—First ascent of Mount Whitney (14,494 feet), 1964—South Africa banned from Olympic Games because of apartheid policies, 1982—New York Stock Exchange sets a trading record of 132,690,000 shares traded, 1987—Houston Oiler Earl Campbell retires from NFL and 2010—The Anaheim Pot ruling??
Yes, many important historical events occurred on Aug. 18 and the Qualified Patients Association v. City of Anaheim was billed as another historical event in this lineage. The Fourth District Court of Appeals was set to determine the legality of Anaheim Ordinance No. 6067, which made it illegal to operate a dispensary in the city. It also made it a crime to work or volunteer in a dispensary. Legal pundits, medical marijuana advocates, city officials, judges, lawyers and reporters all waited in anticipation of an appellate court ruling that would finally provide a broad holding with a bright line rule. The decision was postponed many times but finally released on Aug. 18.
Unfortunately, the Court did not leave a footprint in history with a clear final holding on all issues raised by this case. The unanimous decision, authored by Judge Richard Aronson, reversed the trial court’s ruling that federal law preempts state law, (great for our side), but failed to rule on whether the city’s ordinance is preempted by state medical marijuana laws embodied in the Compassionate Use Act(CUA) and the Medical Marijuana Program Act (MMPA). The decision has been touted by both sides as a quasi victory. The court did discuss and provide some noteworthy and valuable information on a few key areas. This case has many interesting and lengthy areas to be discussed and evaluated but I will address some of the key points below.
First, the court evaluated the MMPA and discussed some of the impact it has had since its inception. The court again references a previous discussion from the Urziceanu case that provides “this new law represents a dramatic change in the prohibitions on the use, distribution and cultivation of marijuana for persons who are qualified patients . . . Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medical marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.” This language is cited by the court in their discussion and is indicative of the higher courts position that some types of transactions regarding medical marijuana and the exchange of money are not per se illegal. The court still went to great lengths to reinforce the position that the MMPA does not authorize anyone to distribute marijuana for profit. This issue is still in need of further clarification and a bright line ruling, but at least the court is not foreshadowing a position that would be consistent with most opponents of medical marijuana.
The court held that federal law does not preempt the CUA or the MMPA. This ruling has major significance for advocates of medical marijuana collectives. The lower courts have often relied on this argument in denying our requests for injunctions to prevent cities from closing marijuana collectives. This ruling is binding on lower courts and will be the most significant outcome of the Anaheim case. The court evaluated the potential for federal preemption under all four types of preemption: express, conflict, field and obstacle. The court found no issue regarding field or express preemption and spent time evaluating claims of conflict and obstacle preemption. The court held that the city failed to demonstrate how the CUA or the MMPA create a conflict with federal law that makes it impossible to comply with both federal and state laws. Essentially, the court reasoned that because the CUA and MMPA do not require citizens to commit an act in violation of federal law, but instead merely decriminalize acts under state law, there is no positive conflict. No longer will cities be able to preach how they are sympathetic to patients’ rights to access medicine, but they just cannot allow for acts in violation of federal law. This holding will serve to narrow the argument down to the state preemption issue.
The court chose not to reach a decision on the issue of state preemption. The court basically stated that the issue is not yet “ripe’ for review. This means that an opportunity for a very significant ruling was lost. While not quite the historical and monumental decision it could have been, the Anaheim case has still left a significant impact on the landscape of medical marijuana in California. It has removed federal preemption as a viable argument against the collective distribution of marijuana in cities. It also clearly set the stage for future litigation on the issue of state preemption. I will discuss some potential directions for this litigation on my blog at www.themarijuanalawyer.com in the upcoming weeks.
Christopher Glew is a Southern California attorney who specializes in medical marijuana law and is a partner with the Law Offices of Glew & Kim. You can reach him at (714) 648-0004 or through his website, www.themarijuanalawyer.com.
