Compassion in Court

By David Downs

The fate of medical cannabis access for hundreds of thousands of California patients suffering from cancer, AIDS and chronic pain hangs in the balance of the California Supreme Court Tuesday, Feb. 5.

In a special public session at the University of San Francisco in San Francisco, the California Supreme Court is set to hear oral arguments in case of City of Riverside vs. Inland Empire Patients Health and Wellness Center. While a verdict isn’t expected for a few weeks, the case will decide if California cities and counties can ban dispensaries, with huge ramifications for the state.

“This is a watershed case,” says former Sonoma County Public Defender and practicing cannabis attorney Joe Rogoway.

“Simply put, February 5 will be huge for all of us,” says Lanny Swerdlow, co-founder of Inland Empire Patients.

The Supreme Court hearing is the latest in a 17 year-long struggle to clarify state MMJ law, attorneys say.

In 1996, Californians used Proposition 215 to grant patients and caregivers immunity to certain state pot laws.

In 2003, the legislature expanded those immunities to cover collectives of patients and caregivers, but those collectives must abide by guidelines set out by the California Attorney General in 2008.

The entire process has been contentious, though. About half the state—especially Inland and Southern California—has resisted the rise of MMJ. Opponents have worked to make medical pot laws vague and give law enforcement the broadest discretion possible.

“Now, what happening is the courts are writing the law—legislating one case at a time. It’s a very inefficient way to write  law,” says Santa Rosa attorney Scott Cantrell, who got a case against a Vallejo dispensary dismissed in December. “The grey area just makes more people go to court, it gives District Attorneys and police too much discretion to waste a bunch of time and money.”

IEPHWC launched in 2009 in the battleground of Riverside. The city quickly moved to shut them down. Local law bans all pot clubs, Riverside told IEPHWC. The two sides went to court and a California Superior Court judge, as well as an Appeals Court sided with Riverside.

But other Appeals Court decisions have rejected blanket bans on dispensaries. IEPHWC filed for an appeal to the California Supreme Court, which granted review and will conduct oral arguments in a rare, televised hearing at USF.

According to briefs filed by IEPHWC, their position boils down to the argument that Riverside can’t ban dispensaries, because such a ban would contravene state law.

Conversely, the City of Riverside’s position boils down to the argument that the Legislature has never specifically said cities can’t ban pot clubs, so cities can.

“Nothing in the [Compassionate Use Act or [Medical Marijuana Program] suggests that cites are required to accommodate the use of medical marijuana [and dispensaries], by allowing [dispensaries] within every city,” the Appeals Court wrote, siding with Riverside. “Furthermore, those who wish to use medical marijuana are not precluded from obtaining it by means other than at a dispensary in Riverside.”

MMJ patient Angel Raich in Albany. said patients in cities with dispensary bans “suffer the most.” Eliminating clubs leads to negative patient outcomes including death, she said, not to mention decreased public safety.

“Law enforcement closing down dispensaries [is] forcing patients to buy it from drug dealers that are getting it from cartels,” she says.

Tuesday’s oral arguments will give each side a chance to reiterate the main themes of their arguments, and expose them to questioning by the California Supreme Court

The Court’s line of questioning will elucidate their position on the case, but a decision isn’t expected until weeks later, Rogoway says.

The ramifications of the case will be profound, most agree. If the Supreme Court upholds Riverside’s ban, it means the 170 or so city dispensary bans in California are lawful. Hundreds of thousands of current patients will continue to be denied medical access via local dispensaries, and more dispensary operators will be jailed.

Dispensary law won’t change in the 50 or so cities that permit clubs, but perhaps dozens of California cities and counties—San Jose for example—have temporary moratoriums on dispensaries. A verdict either way will push them to either enact bans or reconsider them.

The state Legislature has also been awaiting such a verdict, and the verdict will undoubtedly influence language in pending MMJ regulations.

If the Supreme Court rules bans on dispensaries illegal, bans in Riverside, San Diego and more than 100 localities would be overturned, and potentially millions of patients will be assured safe access via dispensaries. Scores of operators won’t be arrested or end up in court.

IEPHWC Lanny Swerdlow wrote in an email this week that “the almost unanimous opinion is that we will win.”

But Americans for Safe Access chief counsel Joe Elford said in June of 2012 that the California Supreme Court tends to be supportive of local control.

Either way, patients have come an incredibly long way through the courts Rogoway says. “As far as criminal law goes we’ve already won quite a bit,” he says.

Just this January, the California Supreme Court in City of San Diego v. Jackson affirmed that: cancer patients don’t have to grow cannabis to be lawful members of a collective; that they could engage in cash sales at dispensaries; and operators were entitled to an MMJ defense.

“Regardless of what happens with the ruling, in many ways we are at a good place,” he says.

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Highlights in the Evolution of California Medical Cannabis Law

1996—Proposition 215: Compassionate Use Act grants patients and their caregivers immunity to certain state cannabis laws like possession, growing, transport, use.

2002—Cal. App. 4th, People v Mower: clarifies that patients can introduce medical marijuana defense before trial.

2003—SB 420: The Medical Marijuana Program Act expands immunities to cover collectives of patients and/or caregivers, enabling dispensaries to open. Starts the California Medical Marijuana Identification Card program.

2004—Cal. App. 4th, People vs. Urziceanu: asserts that collectives can operate dispensaries, sell marijuana, and have defenses in court.

2005—U.S. Supreme Court, Gonzales vs Raich: clarifies federal law’s supremacy over Californians immune to state cannabis laws.

2008—Cal. Attorney General’s Guidelines: specifies that lawful collectives should operate like a not for profit.

2008—Cal. Supreme Court, Ross vs. Raging Wire: clarifies that medical marijuana patients can be fired from their job for using the drug as recommended by their physician.

2008—Cal. App. 4th, County of San Diego v. NORML: federal law does not preempt state law; cities and counties must implement the state medical marijuana identification card program.

2009—Cal. App. 3rd, County of Butte v. Superior Court of Butte County: patients can sue cities and counties for unlawfully seizing their gardens, medications.

2010—Cal. Supreme Court, People v. Kelly: clarifies that patients can have as much cannabis as their doctor recommends; prosecutors can’t argue exceeding guidelines is a crime per se.

2010—Assembly Bill 2650: says dispensaries cannot locate with 600 feet of a school or park.

2011—Cal. App. 4th, County of Los Angeles v Hill: cities can zone, but cannot ban dispensaries.

2013—Cal. Supreme Court, County of San Diego v. Jackson: settles the issue that collectives can lawfully run dispensaries; cancer patients needn’t grow cannabis to be lawful members of collectives; cash sales are allowed at dispensaries.

2013—Cal. Supreme Court, City of Riverside v. Inland Empire Patients Health and Wellness Center: will clarify if California cities and counties can ban dispensaries.

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