With all of the time and consideration taken by the appellate court, I had anticipated a less WISHY WASHY decision. Is it too much to ask for a court to grow a sack of nuts and make a firm decision in this case. Can cities ban collectives or not? That is not too hard of a question. But here we go on the court roller-coaster with some of the responsibility being dumped back to a lower court and a sure appeal to the CA Supreme Court is in order. Here is an ASA brief on the decision.

California Appellate Court Reinstates Medical Marijuana Dispensary Ban Case

State law & AG guidelines allowing for local distribution validated and remain in effect

Santa Ana, CA — California’s Fourth District Court of Appeal issued a long-awaited ruling today, choosing not to decide whether localities can ban medical marijuana distribution, and remanding the case back to Orange County Superior Court for further factual development. While nearly four-dozen California localities — including some of the most populous cities, such as Los Angeles, Long Beach, Oakland, and San Francisco — have successfully implemented ordinances regulating medical marijuana dispensaries, more than 130 cities have imposed bans like Anaheim’s.

The unanimous decision, authored by Judge Richard Aronson, reversed the trial court’s ruling that federal law preempts state law, but failed to rule on whether Anaheim’s local ordinance could preempt the state’s Medical Marijuana Program Act (MMPA). The ruling states that because Proposition 215 and the MMPA “do not mandate conduct that federal law prohibits, nor pose an obstacle to federal enforcement of federal law, the enactments’ decriminalization provisions are not preempted by federal law.” In a statement favorable to the plaintiff, the court questions how “a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from ‘criminal liability,'” as it does in the MMPA.

CW: SO….this is good. Federal law does not preempt State law….but we knew that from the Kha case, so, while this affirmation is appreciated it is OLD NEWS…

“While we understand the difficult nature of deciding this issue, the court’s ruling delays a decision that will affect thousands of patients who remain without access to their medication because of hostile jurisdictions,” said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the country’s leading medical marijuana patient advocacy group, which filed briefs in the Anaheim case and argued before the Court of Appeal last September. “The silver lining to this decision is that the court has reinstated the lawsuit and is providing the plaintiffs the opportunity to prove that dispensary bans are illegal under state law.”

CW: Silver linings suck. I wanted a completely silver cloud of OG Kush smoke…but thems the breaks.

The case Qualified Patients Association v. City of Anaheim was the result of a lawsuit filed shortly after Anaheim voted to ban dispensaries in July of 2007. Qualified Patients Association was a local medical marijuana dispensary that had been in operation for 5 months prior to the ban. An appeal was filed in March of 2008 after the Orange County Superior Court ruled that Anaheim could prohibit dispensaries from operating within its city limits.

CW: 2008? It is almost 2011….I hate the slow wheels of justice.

The Anaheim case has drawn a lot of attention as more and more local governments have been forced to confront the issue of access to medical marijuana. Despite guidelines recognizing the legality of storefront dispensaries issued in August of 2008 by the California Attorney General, multiple statewide law enforcement associations filed briefs in support of Anaheim’s ban, as did nearly three-dozen cities.

CW: HATERS!!!!! It is only cannabis medicine. You cops and overzealous city officials need to get a life, grow a spine, and take a long look at why you spend so much time and energy hating on some patients and their plants.

“We will continue to fight for the right of patients to access medical marijuana through local dispensaries, which is provided for by the Medical Marijuana Program Act, previous case law and guidelines issued by the California Attorney General,” continued Elford. “Whether or not the Anaheim case is brought before this court again, this issue will eventually be reheard and we are confident of the eventual outcome.”

CW: The great Joe Elford. Thanks, Joe. Your words always make me feel better, so at least I have that going for me, which is nice.

Further Information:
Today’s ruling in Qualified Patients Association v. City of Anaheim:http://AmericansForSafeAccess.org/downloads/Anaheim_Ruling.pdf
Status of California city ordinances regulating and banning dispensaries:http://AmericansForSafeAccess.org/regulations

Some other words on the decision:

In  its long-awaited ruling in Qualified Patients Association vs. the City of Anaheim , the California Court of Appeals ruled that Anaheim could not use federal pre-emption as a grounds to ban medical marijuana dispensaries.  The court struck down a lower court decision that had sustained a demurrer to QPA’s suit against Anaheim on the grounds that dispensaries were illegal under federal law.
http://www.courtinfo.ca.gov/opinions/documents/G040077.PDF
On a second issue, the court found with the city of Anaheim as to whether the QPA could sue on the grounds that the city’s ordinance violated the state Unruh Act by discriminating against them on the basis of a disability or medical condition.  The court ruled that the Unruh Act did not apply
The court remanded the suit of Qualified Patients Association to the lower court, reinstating the plaintiffs’ cause of action seeking declaratory judgment on whether Prop. 215 and SB 420 pre-empt the city’s ordinance.
The bottom line is that it remains an open question as to whether local dispensary bans are illegal, butfederal preemption is not a valid argument for declaring so.
– Dale Gieringer, CANORML

You can always count on Dale to shoot straight from the hip and break it down for what it is. Not for what on hopes it to be or wishes it was. Thanks, Dale.

And from Steve Kubby, the movement’s eternal optimist:).

We won!  Not like we would have liked, but this is an important decision for us, because of it drives a silver stake through the key argument of police, prosecutors and local governments, that Dispensaries are still a violation of federal law.  We all owe a debt of gratitude to Joe Elford, Chief Counsel for ASA, for his brilliant amicus brief that played a key role in the decision.

Thanks for the uplifting words and recognition of Elford’s work.

And then there is Dale G bringing Kubby back to earth a bit:

This decision isn’t exactly a sweeping victory for anyone because it ducks the essential question:  can cities legally ban dispensaries under state law?   The court  remanded the question for further litigation in the lower courts.
While it is nice that the court rejected federal preemption, this was pretty much a foregone conclusion since they had already done so in the Kha case.
– Dale Gieringer

CW: So there we have it. Several months and a lot of energy put forth for very little political movement in either direction. Well I am glad I waited for that. Geez.