City Attorney Dennis Herrera Defends Medical Marijuana Permitting

Categories: Marijuana
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Fighting for the right for pot parties
Medical marijuana does not grow on trees (pot plants are much smaller). And cannabis does not fall from the sky: In order for marijuana users to access their preferred medicine -- and in order for the will of the voters to be respected -- "patients" need to acquire cannabis from somewhere.

In California, this somewhere has become taxpaying storefronts, also known as dispensaries.

Cities' abilities to enact some sort of control over dispensaries is at legal risk: A case currently before the state Supreme Court will decide if California cities and counties can legally regulate medical marijuana, or if federal law renders all local control -- like San Francisco's Medical Cannabis Act -- invalid.

City Attorney Dennis Herrera entered this discussion on the side of local law -- or, from local cannabis advocates' perspective, on the side of the magic plant -- when he filed an amicus brief today. Invalidating the city's regulatory scheme would either ban medical marijuana facilities outright, or force a return to the wild, unregulated days, Herrera told the Supreme Court.

Here's the back story: After failing to get a a city permit via a lottery, a would-be medical marijuana dispensary operator sued the City of Long Beach, alleging that the lottery system was arbitrary and otherwise bogus.

In its ruling on the suit, Pack v. City of Long Beach, a state circuit Court of Appeals agreed with the operator, in a sense, saying all county and municipal medical marijuana regulations violate the federal Controlled Substances Act, and are therefore truly bogus and invalid. Oops.

Such a ruling was unprecedented. No court decision, at either the state or the federal level -- where medical marijuana law has been argued at the Supreme Court of the United States as recently as 2005 -- attempted to strike down state law due to a federal conflict. (It's also unclear if a court would be allowed to overturn a law like the Compassionate Use Act, which was enacted by voter initiative in 1996. If one tried, certainly it would be a field day for attorneys and legal professors.)

The state Supreme Court agreed in January to hear an appeal of the Pack decision, this time filed by cannabis advocates and, like Herrera, advocates of municipalities' abilities to regulate medical marijuana.

No official time frame for when the court will issue a decision has been released.

Herrera's brief mentions the apparent main obstacle for continued regulation -- federal law -- only briefly, referring to past Court of Appeals decisions which noted the power of states to "serve as a laboratory" for "novel social and economic experiments without risk to the rest of the country." Here's where legal scholars earn their bread: Laws can be preserved as long as they do not "positively conflict with the Controlled Substances Act," Herrera writes.

A "positive conflict" is a legal situation in which two different entities claim authority. Does a federal law outlawing marijuana conflict with or override a local law permitting marijuana outlets? We'll find out.

In any case, local medical marijuana regulations are necessary if cannabis users are to acquire their medicine, and if the rest of the populace is to be satisfied, Herrera wrote.

"The impact of the Court of Appeal's decision would be to force local jurisdictions to choose between banning medical marijuana-related uses altogether and allowing those uses to exist subject to a lesser degree of regulation than other permitted uses," he wrote. And since an outright ban would seemingly invalidate Proposition 215, "medical marijuana-related uses would be subject to less regulation than most other uses" if the Pack decision stands.

"That result makes no practical sense," Herrera wrote.

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