Pubdate: Sat, 03 Mar 2012
Source: Los Angeles Times (CA)
Copyright: 2012 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Maura Dolan

STATUS OF MEDICAL MARIJUANA TO REMAIN HAZY

Cities and Medical Pot Providers Grapple With Conflicting Rulings 
While Waiting for the State Supreme Court to Rule on the Issue - a 
Year or More From Now.

Reporting from San Francisco -- Cities and medical marijuana 
providers, facing a series of conflicting rulings, are likely to 
remain in legal limbo until the California Supreme Court clarifies 
the ability of local governments to regulate patients' pot, analysts 
said Friday.

"Pray that the California Supreme Court comes up with a decision as 
soon as possible," said Thomas Jefferson School of Law professor Alex 
Kreit, who has advised the city of San Diego on medical marijuana. 
"The lay of the land is getting more bewildering every day."

A ruling this week that said cities could not ban dispensaries is 
expected to be taken up by the state high court, which already has 
agreed to review four other lower court decisions on medical 
marijuana. Once the state Supreme Court agrees to review a case, it 
is considered pending, and the lower court ruling cannot be cited as precedent.

The Santa Ana-based state Court of Appeal, citing the language of a 
state medical marijuana law, ruled unanimously Wednesday that a 
zoning law in Lake Forest amounted to an illegal ban on dispensaries. 
More than 100 local governments in California currently ban medical 
marijuana operations.

Legal analysts said the ruling was likely to have an impact only in 
the short term, particularly in disputes already in court.

"If you are going to [challenge] a dispensary ban ... right now might 
be the time to strike," said Joe Elford, chief counsel for Americans 
for Safe Access, which seeks to protect the rights of medical 
marijuana patients.

The Santa Ana court's ruling conflicted with another Court of Appeal 
decision that permitted such bans. Yet another appellate court 
previously had said that federal law barred cities from imposing 
regulations that permit medical marijuana.

Legal analysts said the contradictory court decisions reflect the 
ambiguity of a 2003 California law that authorized dispensaries. 
"What this ultimately highlights is the need for a legislative 
solution," Kreit said. "There is only so much clarity you can provide 
when the law itself isn't really crystal clear."

The law professor added that it was rare to have a nearly 10-year-old 
law subject to wildly varying yet reasonable legal interpretations.

The Lake Forest ruling was the first in the state to conclude that 
bans on medical cannabis dispensaries were illegal. The court also 
ruled that dispensaries may sell only marijuana grown on site, 
another novel conclusion. Most dispensaries do not grow all the pot 
they sell, and activists said cultivation would be impractical in 
crowded cities with expensive real estate, such as San Francisco.

The California Supreme Court is not expected to resolve the various 
conflicts for at least another year. Even when it rules, local 
governments and providers still will have to grapple with federal 
law, which criminalizes any marijuana use or production.

While awaiting the state court ruling on its ban, Lake Forest had 
asked the federal government for help. Federal agents responded by 
shutting down the city's 38 medical marijuana dispensaries, including 
the one that ultimately prevailed in the case.

"Everybody is running around afraid because of what the federal 
government is doing," said David Michael, lead lawyer in four federal 
lawsuits that have been filed to prevent such interference.

Michael said he does not expect to prevail until the cases reach the 
U.S. 9th Circuit Court of Appeals, where he intends to argue there is 
a fundamental right to medical cannabis and cite laws in 16 states 
and Washington, D.C., that permit it.
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MAP posted-by: Jay Bergstrom