MEDIA ADVISORY

Americans for Safe Access

For Immediate Release: February 4, 2013

California Supreme Court to Hear Medical Marijuana Dispensary Ban Case Tuesday in San Francisco

Court is expected to weigh in on whether municipalities can ban distribution, deny patients a legal medication

San Francisco, CA -- The California Supreme Court will hear oral arguments tomorrow morning at University of San Francisco in a closely watched case that addresses whether local governments can lawfully ban medical marijuana dispensaries or should instead be compelled to adopt ordinances regulating them. The case, City of Riverside v. Inland Empire Patients Health and Wellness Center, is one of at least six appellate court cases coming down on different sides of the issue. Although multiple appellate rulings have overturned bans on local distribution, the Riverside court upheld that city's ban, claiming that the wellness center violated municipal code and was a "nuisance per se."

What: California Supreme Court oral arguments on the legality of municipal bans against medical marijuana distribution

When: Tuesday, February 5th at 10:15am

Where: University of San Francisco, 2130 Fulton Street, McLaren Conference Center (Rooms 250–251)

"Local dispensary bans thwart the will of the electorate and the State Legislature, and are therefore preempted by state law," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the country's largest medical marijuana advocacy group. "Hundreds of thousands of California patients who are too sick or otherwise can't cultivate medical marijuana themselves rely on dispensaries for safe and legal access, a right they should not be denied."

The Riverside case, which is being argued by J. David Nick, is the lead case on this issue currently before the High Court. However, several other appellate decisions from southern California on the same issue were also granted review, including County of Los Angeles v. Alternative Medicinal Cannabis Collective, 420 Caregivers v. City of Los Angeles, City of Lake Forest v. Evergreen Holistic Collective, City of Temecula v. Cooperative Patients Services, Inc., and People v. G3 Holistic. In most of these decisions, the court has sided with municipal governments in their effort to prevent regulated distribution, but two appellate rulings notably hold that local officials may not ban distribution and must develop regulations instead.

Specifically, the County of Los Angeles decision from July 2012 overturned a local ban on dispensaries, reversing the lower court’s preliminary injunction from the previous year. The appellate court in County of Los Angeles held that “medical marijuana collectives…are permitted by state law to perform a dispensary function,” and that “[Los Angeles] County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature’s intent.” The Court further concluded that, a “complete ban” on medical marijuana is “preempted” by state law and, therefore, void.

Last year, ASA filed an amicus 'friend of the court' brief in the Riverside case, arguing that the city's ban ought to be overturned. “While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely,” read ASA’s amicus brief. “These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.” While more than 50 localities in California have regulated the lawful operation of dispensaries, over 170 cities have questionably banned their operation outright.

Despite some misconceptions, the Riverside case will likely not address the legality of medical marijuana sales and distribution, which has been fully litigated and established as a right under state law. The most recent decision in this regard came from People v. Jackson, a criminal case in which the legal sale of medical marijuana by a storefront dispensary was affirmed and a defense established for Jackson and other future defendants. The California Supreme Court refused to review or depublish the Jackson decision, which now stands as the law of the state.

According to the California Courts, Tuesday's oral arguments are part of a special session, "the latest in a series of student outreach programs to improve public understanding of the state court system, [which] also commemorates the University of San Francisco (USF) School of Law Centennial Celebration." The hearing will be broadcasted by livestream on The California Channel at http://www.calchannel.com.

Further information:

Appellate decision in the Riverside case: http://AmericansForSafeAccess.org/downloads/Riverside_Decision.pdf

ASA amicus brief in the Riverside case: http://AmericansForSafeAccess.org/downloads/Amicus_Riverside.pdf

Links to other appellate decisions on this issue: http://bit.ly/XrfMBB

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Mike Riggs|Jan. 22, 2013 12:40 pm

The U.S. Circuit Court of Appeals for Washington, D.C. ruled today in favor of the DEA's decision to keep marijuana a Schedule I drug--a classification for substances that are highly addictive and have no widely accepted medical benefits.

"On the merits,  the question before the court is not whether marijuana could have some medical benefits,"reads the court's ruling inAmericans for Safe Access v. Drug Enforcement Administration. Rather, the court was tasked with deciding whether the DEA was following its own rules in refusing to initiate reschedule proceedings for marijuana. 

According to the appeals court, the DEA was following its own rules (there are five in all) when it claimed that petitioners for rescheduling marijuana had failed to provide "adequate and well-controlled studies proving efficacy." 

Americans for Safe Access in turn argued "that their petition to reschedule marijuana cites more than two hundred peer-reviewed published studies demonstrating marijuana’s efficacy for various medical uses, and that those studies were largely ignored by the [DEA]."

"At bottom," the court wrote, "the parties' dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe 'adequate and well-controlled studies' to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous."

How much more rigorous? "The DEA interprets 'adequate and well-controlled studies' to mean studies similar to what the Food and Drug Administration requires for a New Drug Application."

The discussion of medical studies starts on page 21 of the brief. You can read the entire ruling below: 

Americans for Safe Access v. DEA 

http://reason.com/blog/2013/01/22/in-fight-over-marijuans-scheduling-appea


 
 
For Immediate Release: January 17th, 2013

CALIFORNIA SUPREME COURT DENIES REVIEW OF LANDMARK MEDICAL MARIJUANA CASE, AFFIRMS LEGALITY OF STOREFRONT DISPENSARIES

High Court also denied depublication of People v. Jackson despite request from League of California Cities
San Diego, CA -- The California Supreme Court denied review yesterday of a landmark medical marijuana dispensary case, which drew widespread attention from prosecutors and policymakers across the state. The Fourth District Court of Appeal for California issued a unanimous published ruling on October 24th in the case ofPeople v. Jackson, reversing the conviction of former San Diego dispensary operator Jovan Jackson and establishing a clear defense for Jackson and other medical marijuana providers similarly prosecuted in state court.

Notably, however, the State Supreme Court took decisive action yesterday in the way that it did, despite requests to depublish the appellate court decision from the League of California Cities and an amicus brief supporting the High Court's review of the case from district attorneys in Los Angeles, Sacramento, and Sonoma Counties, as well as the Los Angeles City Attorney.

"Not only has the California Supreme Court rejected attempts to have it review theJackson case, thereby affirming the legality of medical marijuana sales and distribution in the state, it also chose not to depublish this landmark ruling benefiting thousands of patients," said Joe Elford, Chief Counsel with Americans for Safe Access, who represented Jackson in his appeal. "Even though the appellate court decision garnered significant opposition, patients have prevailed in their struggle to protect safe access to medical marijuana."

Jackson was convicted in September 2010 after being denied a defense in San Diego Superior Court. However, yesterday's decision not to review his case now entitles Jackson -- and, by extension, other California dispensary operators -- to a defense in state court. By rejecting the Attorney General's argument that patients who utilize dispensaries must collaborate, or 'come together' in 'some way' to cultivate the marijuana they purchase, the appellate court ruling provided the elements for a defense in future jury trials across the state.

Specifically, the appellate ruling held that in mounting a defense at trial, "Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established." The court further held that, "the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense."

ASA appealed Jackson's conviction in late 2011, and his case quickly became a symbol of the effort by San Diego District Attorney Bonnie Dumanis and other prosecutors across the state to criminalize storefront medical marijuana collectives. However, today's decision by the High Court not to review the case deals a significant blow to that effort.

Jackson operated his storefront collective without incident until he was raided by law enforcement in 2008. Jackson was tried for marijuana possession and sales in 2009, but was acquitted by a jury. Dissatisfied with that result, District Attorney Dumanis tried Jackson again on the same charges stemming from a September 2009 law enforcement raid. It was at his second trial that Jackson was denied a defense and ultimately convicted. San Diego Superior Court Judge Howard Shore, who referred to medical marijuana as "dope," and called California's medical marijuana laws "a scam," gave Jackson 180 days in jail, a sentence that was later vacated.

Further information:
Docket sheet for People v. Jacksonhttp://bit.ly/U4Gr7G
Landmark appellate court ruling in People v. Jackson:http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_Ruling.pdf
Jackson appeal brief filed by ASA:http://AmericansForSafeAccess.org/downloads/Jackson_Appeal.pdf



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