This article has been modified from a memo written for my
Public Land Use class. Ok, don’t leave
just yet. Since the original memo, the California Supreme Court has agreed to hear the cases I wrote about—yes, those very cases (plus two more).
Barring any intervening changes from the legislative branch, the Court will likely decide the fate of medical marijuana dispensaries (MMDs) in the Golden State. Admittedly, the bulk of this story hinges on
proper statutory construction and the legal doctrines of federal and state
preemption. This article offers glimpse
into the finer points of these issues and how they affect medical marijuana. But it is also the next chapter in a more important
and interesting story about how our judicial branch has failed to use the
legitimate power at its disposal to affirm important steps toward drug reform.
The most high-profile of these reforms has been medical
marijuana, with California leading the way.
In 1996, voters passed Proposition
215 with 56% of the vote. The
three-fold goals of the act were laid out for all to see: a) obtainability of
marijuana for patients, b) exemptions from sanction for caregivers and
patients, and c) encouragement toward the government to come up with a plan for
distribution. Upon passing, Prop 215 was
immediately effective in creating exemptions for possession and cultivation of
medical marijuana, and they specifically contemplated further action by the
state legislature in devising a way for sick patients to safely and
conveniently obtain the pot. The
legislature responded with fleetness not usually witnessed in Sacramento and
passed the Medical
Marijuana Program Act (MMPA) in 2003.
The MMPA created the once-controversial Identification Card
system, and sought to clarify a host of other attendant issues. Most important for present purposes is Section 11362.775
which provides that qualified persons “who associate within the State of
California in order collectively or cooperatively to cultivate marijuana for
medical purposes, shall not solely on the
basis of that fact be subject to state criminal sanctions under…” various
sections in the code making it illegal to cultivate, possess, and maintain a
place for the sale of marijuana. The
last exemption for these collective sales operations is freedom from Section 11570
making every building used to distribute a controlled substance a “nuisance which shall be [abated]…whether
it is a public or private nuisance.” The legalese of Section 11362.775 is a little
vague and perhaps ambiguous in one part, but it is plain to see/read that the
legislature is decriminalizing the operation of what has come to be known as
medical marijuana dispensaries (provided they are non-profit collectives selling
to qualified patients).
One of the goals of the MMPA is “to promote uniform and
consistent application of the act among the counties within the state.” Localities have the a broad, general power to
regulate local businesses through zoning and permitting, so long as they are
not inconsistent with controlling State law.
This does not call for a uniform zoning code through all counties, but
it does require the courts to set some guidelines in order to prevent severe
erosions into the immunities provided by the CUA and the MMPA. With all the belly-aching
about the alleged looseness of these statutes, state judges should be
perfectly capable of deciphering their plain meaning and principles and
applying them faithfully and consistently to prospective situations. Unfortunately, the State Supreme Court has
agreed to hear these four cases precisely because the lower courts have
produced more cacophony than harmonious principles when applying the MMPA.
The first case, Traudt v.
City of Dana Point, is a bit of a teaser. It asks the preliminary question of who can
bring a suit to challenge local zoning laws.
Is it the qualified patients, the primary caregiver, the business owner,
somebody else, or nobody at all? They
call it “standing” and it is often needlessly abstruse.
Pack v.
Superior Court is the next case up for review. The regulation at issue in Pack is Long Beach’s permitting scheme
for MMDs. Basically, the City holds a
lottery in which the winners are granted one of a limited number of permits
required to run a dispensary in town.
The dispensaries are charged a $10,000 permitting fee, and are subject
to certain rules. They must maintain an
odor-absorbing ventilation system and send their product in to be quality
tested by an independent expert.
The Pack Court
found that federal Controlled Substances Act (CSA) preempted Long Beach’s
permitting scheme. The theory is that
Long Beach’s licensing scheme goes beyond mere decriminalization, universally
recognized as copacetic with the CSA, and affirmatively authorizes conduct
outlawed by the CSA—i.e. a city may direct local law enforcement to lay off
dispensaries in compliance with certain restrictions, but they may not use
large application fees and a lottery system which impliedly authorize
distribution of a federally prohibited substance.
The Supremacy
Clause of the Federal Constitution makes it so state and local laws in
conflict with federal law are preempted and invalid. It is important to note that an obvious
tension between the two laws does not mean that one of them is preempted. There are areas in which different layers of
government have the authority to act.
The courts have devised four
different ways a federal law may preempt a state law, with corresponding
tests to evaluate the fate of the state law.
The four subspecies of federal preemption are express, conflict,
obstacle, and field preemption. Fortunately for us, there is an overriding
touchstone in each analysis: “preemption
is fundamentally a question of congressional intent.” Congress was kind enough to express their
intentions in Section
903 of the CSA:
“No
provision of this subchapter shall be construed
as indicating an intent on the part
of Congress to occupy the field in
which the provision operates, including criminal penalties, to the exclusion of any State law on the subject matter…unless there is positive conflict between that provision of the subchapter and that
State law so that the two cannot
consistently stand together.”
Congress, self-conscious of the ways in which courts look
for preemption, stated their intention not
to preempt state law through field preemption or express preemption. The one contested area is whether they leave
the door open for either obstacle or conflict preemption, or only conflict
preemption. Obstacle preemption is found
when the State law frustrates or somehow stands as an obstacle to the goals
meant to be accomplished by the Federal law.
Conflict preemption is only found when it is impossible for the two laws
to stand together, that is, it would be impossible for somebody to comply with
the two laws at the same time.
It is important to note that obstacle preemption is a much
broader net with which to invalidate State laws—it is sometimes referred to as
“implied” conflict preemption as opposed to the “positive” conflict preemption
referred to in the statute. Next, look
at the language used in statute—no preemption “unless there is a positive
conflict.” By asserting that the CSA will
only invalidate state laws in the narrow case of a positive conflict, basic
statutory construction (and common sense) leads one to believe that Congress
eschewed the application of the broader obstacle preemption. Yet, the Pack
Court invalidated the Long Beach permitting scheme on the basis
of obstacle preemption (the first Court to do so in this type of case).
The tragedy of this decision goes beyond the fact that the
Court inaccurately applied the law to the facts of the case. The real tragedy is that cities were already
nervous about regulating dispensaries, and the Court was the one institution
that actually had the ability (and the obligation) to quell some of their
fears. This judicial neglect is
reflected in the sentiments expressed by Long
Beach’s city attorney after the case, “the most logical thing to do is to
ban that which we cannot regulate and permit.”
Los Angeles has been paring back their congeniality toward MMDs for some
time, but this year the City Council began considering
an outright ban on MMDs—with the Pack
opinion used as justification.
City councils anxious to enact outright bans also use the
next case up for review, City
of Riverside v. Inland Empire Patient’s Health and Wellness Center, as
justification. In this dispute, a
medical marijuana dispensary challenged Riverside’s ban on all
dispensaries. Riverside’s zoning code
declared that all MMDs are a prohibited use, and as a prohibited use, the City
considers any dispensary as a public nuisance.
Inland’s argument is that the CUA and the MMPA allow for local
regulation of dispensaries, but an outright ban conflicts with the spirit and
letter of State laws decriminalizing the distribution of medical. Hence, we switch from federal preemption of
state laws, to the potential state preemption of local laws.
The California Constitution gives localities broad power to
make and enforce zoning laws, but they may not duplicate or contradict general
state laws. Recall Section 11362.775,
granting dispensaries immunity from public nuisance claims brought solely on
the basis of the fact distribute marijuana.
The Court recognizes the infirmity with Riverside’s zoning code ban and
abatement action, but they ultimately use a clever trick to rule against to
uphold Riverside’s prohibition. They
claim that Riverside’s actions are not contradictory to the MMPA because the
City’s public nuisance claim is supported by the fact that Inland Empire is in
violation of the zoning code, and not “solely on the basis” of their
distributing marijuana. Considering that
any MMD is technically violating the zoning code by virtue of existing, this is
a tortured analysis of what is clearly going on here.
Still, you may be wondering: how can medical marijuana advocates claim
preemption of local laws under the MMPA when the very existence of dispensaries
depends on these state and local rules surviving federal preemption? Aren’t medical marijuana advocates being
hoisted with their own petards in cases like Inland Empire? The short
answer is no, but the whole answer reveals the larger way in which preemption
is meant to operate. Let’s look at the
laws at their basic, practicable level.
The federal CSA says pot distribution is criminal, whereas state law
says pot distribution is not criminal.
In a bifurcated system, where federal law is generally supreme over
state law, it is perfectly conceivable for these two laws to coexist. California’s decision not to
harass/criminalize dispensaries does not in any way prevent the Federal
government from enforcing their law to their heart’s content. Contra Pack,
no need for preemption here.
On the other hand, when the State grants immunity to certain
conduct, but local regulations make it impermissible to partake in such conduct
we have a conceptual (and practical) disconnect. How can a State extend their blessing to
dispensaries when local regulations seek to shut down every single storefront
in their town? This is the classic case
of preemption, and it is the courts jobs to identify it as such and allow the
State law room to function. The last of
the four cases that the California Supreme Court will hear, People v. G3 Holistic, follows the Inland Empire Court and upholds a similar local zoning code against
a challenge of state preemption.
Despite the fact that California voters and the legislature
have given MMDs the breath of life, these California appellate courts have
muddled statutory interpretation and twisted legal doctrines in a way that will
invite California localities to join the myriad governmental institutions
dead-set on destroying California’s experiment with drug reform. It is clear (at least since Gonzales v. Raich,
which is a conversation for another time) that federal law enforcement has
carte blanche to arrest marijuana distributors and sellers, even when they are
complying with state law. Indeed, there
are strong institutional incentives for the DEA to enforce the federal drug
laws in the face of state drug reform—stated simply, their jobs are at
stake.
That is just the start of the troubles facing MMDs. In the face of criminal prosecution, the IRS
still expects MMDs to pay their taxes.
However, federal Tax Courts
have held that MMD owners are not allowed to take normal
business expense deductions. This is
part of the federal government’s desperate attempt to make life impossible for
state-law compliant MMDs, threatening
land-lords who lease to such storefronts and banks who offer accounts for
these business owners.
Facing this onslaught from the Federal government, the
failure to give effect to the CUA and the MMPA represents nothing short of
treachery by these State appellate courts.
Sadly, this is par for the course.
The judiciary has tended to issue faulty opinions when adhering to the
rule of law would make the war on drugs more difficult to execute. Constitutional law expert Roger Pilon notes that
in cases bearing on the drug war, “too often, the court has decided those cases
not as a dispassionate adjudicator securing the rule of law but as a handmaiden
to the political branches—one more agency in the war.”
If the Courts facilitate the demise of medical marijuana experiments
in the many states that recognize the failure of prohibition, it will be a
tragedy in its own right. However, as
United States citizens, we must recognize the connection between the war on
drugs and myriad erosions into our civil rights and liberties already
sanctioned by the courts. On behalf of
the drug war, ostensibly impartial judges have upheld invasions into our privacy
by drug-sniffing drugs, turned citizens into snitches through police abuse
of confidential informants,
eaten away at the “probable cause” requirement in the 4th amendment
by allowing suspicion-less
drug testing, weakened property rights and encouraged police corruption by
allowing aggressive asset
forfeiture of merely accused drug
offenders, sanctioned the increase militarization
of peace officers with no-knock raids and heavy artillery, and flipped
traditional evidentiary rules on their head in order to make it easier for
prosecutors to trump up “intent to distribute” charges against defendants
without having to prove their case.
It is well documented that the criminalization of victimless
conduct creates perverse incentives for law enforcement to go to drastic
measures to uncover these crimes. I
encourage you to read Randy
Barnett’s treatment of this phenomena, but here is my attempt to condense
just the beginnings of the problem: when
the legislature makes it a criminal offense for a)a person to consume their
preferred substance and b) for people to voluntarily supply this consumer
demand, police must use increasingly intrusive techniques to catch people
violating the law because there is no complaining victim to help them find the
offender. Barnett notes that it doesn’t
matter if you believe that drug offenders harm their communities and create a
“victim” in a larger sense because the cogent point here is “there is no victim
to complain to the police and to testify at trial.” Since both parties to drug crimes are
consenting, they will plan to break the law away from public scrutiny,
necessitating increased police intrusions into private places. If cops are serious about finding a good
chunk of these criminals, they must compensate for the lack of reported
offenses by ratcheting up surveillance. And
since mere possession is a crime and is also likely to be easily concealed,
police will be tempted to undergo searches without probable cause. These incentives have played
out in real life, and the results have been pretty much all bad, ranging
from annoying to heart-wrenchingly tragic.
The moral of the story is that while we may expect the
enforcement branch of government to ignore constitutional rights and statutory
attempts at drug reform, the judiciary is designed to be immune from the
political winds that have blown so strongly in favor of the war on drugs. California, through their pioneering venture
into medical marijuana, has in many ways been the bellwether in challenging
this political orthodoxy.
In fact, the State legislature has recently proposed AB
2312, which could right most of the wrongs perpetrated by the Pack and Inland Empire opinions. The
problem is that the Bill faces tough opponents
galvanized by what they see as a blunt tool, making it unlikely to
pass. Most importantly, the bill is
unnecessary and perhaps undesirable when compared to the proper interpretation
and implementation of the MMPA. The
state appellate courts have botched this job, but the State Supreme Court will
have their shot at redemption. The
proper holding will recognize that federal preemption has no place in the
analysis when it comes to run-of-the-mill regulations of MMDs. The Court should respect the MMPA by
preventing a locality from banning MMDs qua MMDs, while providing guidelines
that will allow cities to address their legitimate concerns about the location
of MMDs in sensitive parts of their communities. In the meantime, the public should remind
their City Council that the Pack and Inland Empire decisions have been
de-published and are not the law of the land.
Judges are often intoxicated by drug laws, but this review offers a
choice opportunity for a little sobriety and the eventual return of
level-headed reasoning after our long war on drugs.
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