HomeMy WebLinkAboutRequest for Amicus Curiae Brief Support of the City of Anahe h�
Council/Agency Meeting Held: O ��
Deferred/Continued to:
❑ A proved 43 nditio proved II A Denied Cit e igna r
-C - -No
Council Meeting Date: October 6, 2008 Departme t ID Number: 08-12
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYO ND CITY COUNCIL MEMBERS
10,
SUBMITTED BY: JENNIFER MCG ity Attorney
PREPARED BY: JENNIFER McG Ci Attorney
SUBJECT: Request for Amicus Support of Ban of Medical Marijuana Dispensaries,
Qualified Patients Association v. City of Anaheim, Case No. G040077
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis, Environmental Status,Attachment(s)
Statement of Issue: Our office has received a request that the City of Huntington Beach
participate as amicus curiae in support of the City of Anaheim, for the matter entitled
Qualified Patients Association v. City of Anaheim, Case No. G040077, 4t" District Court of
Appeal, Division 3. The major issue before the Court is the ability of a city to ban the
operation of medical marijuana dispensaries within city limits.
Funding Source: No funds are required.
Recommended Action: Motion to: Approve and authorize participation as amicus curiae
in support of the City of Anaheim for the matter entitled Qualified Patients Association v. City
of Anaheim, G040077, 4t" District Court of Appeal, Division 3.
Alternative Action(s): Do not participate as amicus curiae in support of the City of
Anaheim for the matter entitled Qualified Patients Association v. City of Anaheim, G040077,
4t" District Court of Appeal, Division 3.
Analysis: Chrystal D. James of the Law Firm of Meyers, Nave, Riback, Silver & Wilson, will
be filing an amicus (friend of the court) brief in support of the City of Anaheim in the matter
noted above, on behalf of cities which have adopted ordinances banning medical marijuana
dispensaries. At this time, it is unknown if the League of California Cities has offered its
support. However, in an effort to have as much individual city support as possible, Ms. Jones
has inquired whether the City of Huntington Beach would like to join in the amicus brief filed
by her office. A copy of the request is attached for your review.
�C43
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: October 6, 2008 DEPARTMENT ID NUMBER: 08-12
This case results from the adoption of an ordinance by the City of Anaheim banning the
operation of medical marijuana dispensaries within the city limits. Qualified Associates
Patients, an association of medical marijuana patients who seek to operate a medical
marijuana dispensary, sued in court to challenge the ordinance. Having failed to invalidate
the ordinance at the trial court level, they now have appealed to the Court of Appeal.
Numerous cities, approximately 60 statewide, have adopted similar ordinances banning
medical marijuana dispensaries. The City of Huntington Beach also bans them.
In 1996, California voters approved the Compassionate Use Act, adding a section to the
Health and Safety Code, providing that those who obtain and use marijuana for specified
medical purposes upon the recommendation of a physician are not subject to certain criminal
sanctions. In addition, in 2004 the state legislature enacted the Medical Marijuana Program
Act which sought to address additional issues that were not included within the
Compassionate Use Act and that must be resolved in order to promote the fair and orderly
implementation of the Compassionate Use Act. Cities are seeking direction from the courts
on how these provisions will be interpreted to allow them to regulate the use of medical
marijuana by qualified patients.
It is the City Attorney's recommendation that the City join in as amicus on this request as the
case addresses important issues regarding the ability of cities to regulate medical marijuana
dispensaries within city limits in light of the state law allowing its use by qualified patients.
The case should provide direction to cities on whether they can ban the operation of
dispensaries in their city.
Strategic Plan Goal: Engaging the Community.
Environmental Status: N/A
Attachment(s):
PageNumber No. ® • •
1. Correspondence from Meyers Nave dated 8/1/08 Requesting Amicus
Brief Support
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A TTACHMENT # 1
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m e y e r s n a v e riback silver & wilson ya° 1/ 1/09
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AUG 1 12008
CITY OF HUt�1 fliNGTON BEACH
ADMINISTRATIVE OFFICE
August 1, 2008 ----1/ _ � m
Re: Medical Marijuana Update and Qualified Patients Association v. City of Anaheim;Amicus
Curiae Brief
Dear City Attorneys; City Managers and Other Interested Parties:
We are writing this letter to request your City's support, as a friend of the court, in the City of
Anaheim's medical marijuana case pending before the California Court of Appeal.
The City of Anaheim adopted an Ordinance banning the operation of medical marijuana
dispensaries. The Ordinance was challenged by Plaintiff-and Appellant, Qualified Associated Patients
("QAP"), an association of medical marijuana patients who seek to operate a medical marijuana dispensary
within the City of Anaheim.
The City successfully demurred to QAP's Complaint in the trial court. QAP has appealed the lower
court's decision, in Qualified Patients Assn. v. City of Anaheim, Case No. G040077. QAP's opening
appellate brief makes the following five arguments:
1)The City of Anaheim's Ordinance violates the California Constitution, Article 11 Sec. 7;
Government Code Section 37100 and Civil Code Section 51 (Unruh Act);
2) The federal Controlled Substances Act (CSA) does not preempt the California Compassionate
Use Act(CUA) on the grounds that Congress did not explicitly or inferentially occupy the field
regulating medicinal use of marijuana and that the CUA and state's Medical Marijuana Program
(MMP) do not conflict with the CSA;
3) The City's Ordinance making criminal a violation of federal law is unenforceable in state courts.
4) The City's Ordinance duplicates state law.
5) The Unruh Civil Rights Act proscribes arbitrary discrimination by cities against individuals based
upon disability or medical condition.
The City's Respondent Brief is due on September 2, 2008. Meyers Nave has been selected by
the City of Anaheim to draft an amicus brief. Absent any extensions to QAP, the amicus brief is,due no
later than October 6, 2008.
To date, there has been no direction to local governments from the California Attorney General or
from the Courts on the issue of a City's power to ban medical marijuana dispensaries. Consequently, the
55512th Street,Suite 1500 1 Oakland,California 94607 1 tel 510.808.2000 1 fax 510.444.1108 1 www.meyersnave.com
LOS ANGELES . OAKLAND • SACRAMENTO . SAN FRANCISCO ® SANTA ROSA
l
August 1,2008
Page 2
issues pending before the Court of Appeal in this case are of paramount concern to all local governments in
California.
Moreover, cities will now be looking for direction from the outcome in Anaheim's case in light of two
recent decisions by the California Court of Appeal: On May 22, 2008, the California Court of Appeal,
Second District, in Kelly v. People, struck down certain provisions of the Medical Marijuana Program Act as
unconstitutional. On July 31, 2008, the Fourth District, in County of San Diego v. NORML, held that the
provisio^s of the Medical Marijuana Program Act requiring counties to issue identification cards to qualified
patients, are not preempted by the federal Controlled Substances Act. The issue of how the remaining
provisions of the Medical Marijuana Program Act will be interpreted to allow cities to regulate the lawful use
of medical marijuana by qualified patients is tremendously important. The impact of the San Diego and
Kelly decisions will be a significant matter for discussion in this case. A brief summary of these decisions
is enclosed.
Approximately 60 California cities have adopted ordinances banning medical marijuana
dispensaries. Several cities have already joined as amici curiae on this brief. However, the greater the
number of local governments represented in the amicus brief, the greater the impact on the court. There is
rho cost to your City associated with joinder in the amicus brief. The City of Anaheim and Meyers Nave
seek your City's support of the amicus brief..
If you would like more information on joining the amicus curiae brief or wish to confirm your City's
decision to support the City of Anaheim, please contact me at our Los Angeles office at(213) 626-2906,
ext. 4464.
Very truly yours,
Chrystal B. James
CBJ:Id
Enclosure
Fourth District Court of Appeal Upholds Medical Marijuana Identification Card Provisions of the Medical Marijuana
Program Act
On July 31,2008,the California Court of Appeal,Fourth Appellate District,issued its decision in County of San Diego v.NORML,Case No.
D050333,finding that the provisions of the Medical Marijuana Program Act imposing obligations on California counties to issue identification
cards to qualified medical marijuana patients are not preempted by the federal Controlled Substances Act("CSA").
In November 1996 voters approved Proposition 215,known as the Compassionate Use Act(CUA),adding Section 11362.5 to the Health&
Safety Code. The CUA ensures that Californians who obtain and use marijuana for specified medicinal purposes upon the recommendation of
a physician are not subject to certain criminal sanctions. People v. Wright(2006)40 CalAth 81,84.
In 2003,the Legislature introduced Senate Bill 420,known as the"Medical Marijuana Program Act"("MMP")which sought to"address
additional issues that were not included within the CUA and that must be resolved in order to promote the fair and orderly implementation of the
CUA." People v. Wright,supra,(2006)40 CalAth 81,84. SB 420 was enacted by the Legislature in 2004. Sections 11362.71 et seq.,of the
MMP,known as the identification card program,require California counties to provide applications to qualified patients,process the
applications,verify the accuracy of information,issue identification cards and to maintain records of the program.
In 2006,the County of San Diego dhallenged these requirements by initiating an action against the State of California and Sarfdta Shewry,in
her official capacity as Director of the California Department of Health Services. The counties of San Bernardino and Merced later joined in
San Diego's action. The counties argued that the MMP and CUA were preempted by positive conflict preemption and obstacle preemption
pursuant to 21 U.S.C.§903. Section 903 provides the Congressional preemption standard for controlled substances.
However,the trial court disagreed,ruling that the MMP and CUA were not preempted by federal law on the ground that these laws did not
mandate conduct violating the CSA. The Counties of San Diego and San Bernardino timely appealed(Merced County did not join in the
appeal).
The Court of Appeal narrowed its scope of review by finding the law limited the counties'standing to challenge the constitutionality of the MMP
and CUA to only those provisions that imposed obligations upon the counties,not the entirety of the MMP or CUA. The Court found only the
identification card provisions were applicable to or had an injurious effect on the counties and therefore,limited its analysis to those provisions.
In finding that the identification card provisions were not federally preempted,the Court rejected the counties'claims of positive conflict
preemption and obstacle preemption under the Controlled Substances Act. ''Positive conflict preemption"requires a finding that"simultaneous
compliance with both state and federal law directives is impossible." The Court found that positive conflict preemption did not apply because
the counties'compliance with the identification card laws could"consistently stand together with the provisions of the CSA,"as the identification
cards,themselves,do not"insulate the bearer from federal laws." The Court held,"[t]he CSA does not compel the states to impose criminal
penalties for marijuana possession." Thus,"the requirement that Counties issue cards identifying those against whom California has opted to
not impose criminal penalties does not positively conflict with the CSA." In other words,the Court found only state laws that"affirmatively"
require the violation of federal law reach positive conflict preemption and the identification card program does not meet this threshold.
"Obstacle preemption"exists when,"under the circumstances of a[a]particular case,the(challenged state law]stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress." The Court also rejected a finding of obstacle preemption,
noting the identification card laws did not"pose a significant impediment"to the objectives of the CSA because the CSA's purpose"is to
combat recreational drug use,not to regulate a state's medical practices." The Court cited to the 2006 Gonzales v. Oregon,546 U.S.243
decision,wherein the U.S.Supreme Court held"the CSA,when viewed as a whole,did not grant expansive federal authority to regulate
medicine by defining scope of legitimate medical practice,in view of CSA's silence on the practice of medicine generally and its recognition of
state regulation of the medical profession."
Finding neither positive conflict preemption nor obstacle preemption applied to the identification card provisions of the MMP,the Court affirmed
the trial court's judgment against the counties.
Additionally,in contrast to the Second District's May 22,2008 decision in People v.Kelly,which stuck down the quantity provisions of
the MMP as unconstitutionally amending the CUA,the San Diego Court found that"the MMP's identification[card]laws do not
improperly amend the provisions of the CUA." The Court noted that the MMP's identification card system did not add statutes or
standards to the CUA,which would be considered an unconstitutional amendment under California law,but rather provided distinct
protections that the CUA does not provide. The Court further noted,that the"MMP expressly provides that the CUA protections are
preserved without the necessity of complying with the identification card provisions(§11362.71(f).)."
Of significant note,the Court expressly declined to address the question of whether other California statutes,which create exemptions
from state criminal prosecution for marijuana possession and use,e.g.the CUA and other provisions of the MMP,undermine the goals
of the CSA or are inconsistent with the CSA. Thus,the federal preemption question remains unresolved.
For further information concerning this topic, please contact Chrystal B. James, Esq., at Meyers Nave's Los
Angeles office- (213) 626-2906, ext. 4464, or visit our website at meyersnave.com.
1
Second District Court of Appeal Strikes Down "Quantity Provision"of Medical Marijuana Program As Unconstitutional
On May 22,2008,the California Court of Appeal,Second Appellate District, issued a decision in People v. Kelly, Case No.
B195624,striking down Health&Safety Code Section 11362.77,the"quantity of medical marijuana permitted"provision under
the Medical Marijuana Program Act(MMP)as unconstitutional. The Court reversed the trial court judgment and remanded the
case for retrial.
Defendant Patrick Kelly was arrested after a search of his home by law enforcement officers revealed Kelly was in possession of
vacuum sealed baggies containing approximately 12 ounces of marijuana and at least seven potted marijuana plants. Section
11362.77 of the MMP permits possession of only 8 ounces of marijuana without a doctor's recommendation to exceed this
quantity. Kelly was tried by jury and found guilty of possession of more than 28.5 grams of marijuana. The prosecutor argued to
the jury,relying on Section 11362.77,that defendant Kelly was guilty because he possessed 12 ounces of marijuana without the
requisite doctor's recommendation to exceed the state permitted quantity of 8 ounces. Kelly was sentenced to three years
probation with the condition that he serve two days in jail. Kelly appealed. The Court of Appeal found that the prosecutor's
araurnent to the ju-ry!finder Section 11362.77 was improper and"prejudic!al error"entitling Kelly to a retrial.
In November 1996 voters approved Proposition 215,known as the Compassionate Use Act(CUA),adding Section 11362.5 to
the Health&Safety Code. The CUA ensures that Californians who obtain and use marijuana for specified medicinal purposes
upon the recommendation of a physician are not subject to certain criminal sanctions. People v. Wright(2006)40 CalAth 81,84.
However,the CUA did not provide any provision for the quantity of marijuana that a qualified patient could possess without being
subject to criminal prosecution.
In 2003,the Legislature introduced Senate Bill 420, known as the"Medical Marijuana Program Act"which sought to"address
additional issues that were not included within the CUA and that must be resolved in order to promote the fair and orderly
implementation of the CUA." People v. Wright,supra,(2006)40 CalAth 81,84. SB 420 was enacted by the Legislature in 2004.
Section 11362.77 provides that"a qualified patient or primary caregiver may possess no more than eight ounces of dried
marijuana per qualified patient"and"maintain no more than six mature or 12 immature plants per qualified patient".
The Kelly Court held that the enactment of 11362.77,without voter approval,improperly amended the Compassionate Use Act
(CUA)in violation of Article II,section 10,subdivision(c)of the California Constitution. Article ll,section 10,subdivision(c)
provides in pertinent part:"The Legislature may amend or repeal an initiative statute by another statute that becomes effective
only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." The Kelly
Court found that the CUA did not authorize amendment without voter approval and that"The CUA does not quantify the
marijuana a patient may possess". The Court then looked to the"reasonably related"rule adopted in People v. Trippet(1997)56
Cal.App.4th 1532,1549 as the limitation on marijuana intended by the CUA.
Relying on the Trippet reasonableness rule,the Court determined that Section 11362.77,by imposing a specified limit where
there previously was none specifying the amount a qualified patient may possess,°clarigiedj the limits of`reasonableness"'
intended by the CUA and was therefore"amendatory". The Court further concluded that because Section 11362.77 amended
the CUA without voter approval,the"quantity"of medical marijuana provision is unconstitutional and"it must be severed from the
MMP".
The Kelly ruling raises the issue of what residual effect the remaining provisions of the MMP have for the regulation of medical
marijuana given the severance of the permitted quantity provision. The impact of this decision has attracted divergent opinions.
One view is that the entire MMP is rendered ineffective if qualified patients(and law enforcement officers)no longer have a bright
line determination of the permissible quantity a qualified patient may possess and avoid criminal prosecution. Alternatively,there
is the view the impact of the MMP will not be affected as law enforcement and the court s routinely interpret and apply a
"reasonableness"standard in other areas of law,e.g.tort,criminal and constitutional cases and well equipped to do so in the
medical marijuana context.
For further information concerning this topic, please contact Chrystal B. James, Esq., at Meyers Nave's Los
Angeles office- (213) 626-2906, ext. 4464, or visit our website at meyersnave.com.
2
RCA ROUTING SHEET
INITIATING DEPARTMENT: City Attorney
SUBJECT: Request for Amicus Support of Ban of Medical
Marijuana Dispensaries, Qualified Patients Association
v. City of Anaheim; Case No. G040077
COUNCIL MEETING DATE: October 6, 2008
_.
R CA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable ❑
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable ❑
Tract Map, Location Map and/or other Exhibits Attached ❑
Not Applicable ❑
Contract/Agreement (w/exhibits if applicable) Attached ❑
(Signed in full by the City Attorney) Not Applicable ❑
Subleases, Third Party Agreements, etc. Attached ❑
(Approved as to form by City Attorney) Not Applicable ❑
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not Applicable ❑
Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑
Not Applicable ❑
Bonds (If applicable) Attached
t Applicable 0
No
Staff Report (If applicable) Attached
❑t Applicable ❑
Commission, Board or Committee Report (If applicable) Attached ❑
Not Applicable ❑
Findings/Conditions for Approval and/or Denial Attached ❑
Not Applicable ❑
EXPLANATION FOR MISSING ATTACHMENTS
REVIEWED " RETURNED FOR AFDED
Administrative Staff ( ) )
Deputy City Administrator (Initial) ( ) ( )
City Administrator (Initial) ( ) ( )
City Clerk ( )
EXPLANATION FOR RETURN OF ITEM:
(Below,Spacefor CityVerVsVse •
RCA Author: JMP/DKO