Supreme Court Hears All Sides of Dispensary Case

February 5 - The California Supreme Court heard oral arguments in Riverside v. Inland Empire Patients Health and Wellness Center, a case determining whether or not a county may ban medical marijuana dispensaries within its borders.

The justices, appearing at a special session at the hundredth anniversary of the UCSF law school, were equally hard on attorneys on both sides of the case.

“The Legislature knows how to say, ‘Thou shalt not ban dispensaries,’ ” Justice Ming W. Chin told IEPHWC's attorney J. David Nick. Answered Nick, “If you were to allow bans, city by city, county by county, that is the opposite of what the Legislature was trying to accomplish.”

Words like "consistent" and "establishment" were weighed for their full meaning, and the letter as well as the stated purpose of the law was discussed. Much was made of the fact that state law merely offers limited immunity from state law only. But Nick made it clear that locals have a great deal of authority over zoning of dispensaries, but that the Court has never ruled that locals may make illegal anything legal under state law (except perhaps in a single case, Big Creek Lumber v Santa Cruz).

"The word 'regulation' does not, in any way, signal prohibition," Nick said. Cities have tried and failed to ban mental health hospitals, domestic violence shelters, laundromats, gas stations, and cemeteries from opening within city limits, he wrote in his brief. "Land use has never given authority to municipalities to ban what state law makes lawful," he said.

In questioning Riverside's attorney Jeffrey V. Dunn (pictured at podium), Justice Kathryn Werdegar, a Wilson appointee, remarked, "If all counties throughout the state ban it ... the purpose (of the state law) is thwarted." She pointed to two sections of the law passed by the Legislature to argue that banning marijuana distribution was implicitly disallowed. One states that the Legislature wanted the medical marijuana laws to be applied uniformly throughout the state, while the other states that eligible medical marijuana users can band together to cultivate pot as a collective.

"The Legislature is allowing the cities and counties to regulate in this area," said Dunn. "That's assuming we agree with your definition of 'regulate,' which is debatable," Werdegar shot back. (Source: AP)

Dunn tried to bring up federal law twice, but was quickly shot down by two justices who pointed out that federal law is not at issue in the case. Justice Goodwin Liu addressed the Legislature's calls to promote "uniform" medical marijuana policy across the state. "If some counties ban and some don't, how is that uniform?" Liu asked.

Dunn is a partner at Best, Best and Krieger, an Irvine-based law firm that has promulgated anti-dispensary ordinances throughout California and according to their website, has now been paid to defend those ordinances in 30 municipalities. Dunn assisted in the drafting of a bill last year giving cities more power to regulate dispensaries. A BB&K attorney recently gave a presentation at the California Association of Code Enforcement Officers meeting. A FOIA request revealed Riverside has spent $400,000 on the IEPHWC case, with BB&K receiving over $300,000.

The attorney representing the city of Upland in a similar case, T. Peter Pierce, told the San Gabriel Valley Tribune, "It's always difficult to predict the outcome of an oral argument in the Supreme Court. My perception is that the Justices were more skeptical of the arguments advanced by the medical marijuana dispensary than they were of the argument that was advanced by the city of Riverside." Although, Pierce said, it is not uncommon to come away from oral arguments feeling one way only for the court to decide another way.

A ruling will be issued within 90 days. A likely outcome, said ASA attorney Joe Elford on KPFZ radio (2/9), is that the court will rule that cities have the discretion, but by no means the obligation, to ban dispensaries.

This year is also the 100th anniversary of marijuana prohibition in California.

Also see: California Supreme Court hears pot shop ban case
By LISA LEFF, Associated Press
Updated 3:03 pm, Tuesday, February 5, 2013