3rd Civil No.

G048303
IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE
FOURTH APPELLATE DISTRICT, DIVISION THREE
MARTIN MODIANO; et aI.,
Plaintiffs/Appellants,
Civil 'Case No. 30-2012-
00601853
v.
CITY OF ANAHEIM; et aI.,
DefendantslRespondents.
On Appeal From the Superior Court
of California, County of Orange
Judge: Honorable James David Chaffee
APPLICATION OF THE CITY OF RIVERSIDE TO
FILE AMICUS BRIEF IN SUPPORT OF
RESPONDENT CITY OF ANAHEIM; PROPOSED
BRIEF OF AMICUS CURIAE
55402,00021 \8330814.2
Attorneys for Amicus Curiae City of Riverside
JEFFREY V. DUNN*, BarNo. 131926
BEST BEST & KRIEGER LLP
18101 Von Karman Avenue, Suite 1000
Irvine, CA 92612
Telephone: (949) 263-2600
Facsimile: (949) 260-0972
Jeffrey .dunn@bbklaw.com
TO BE FILED IN THE COURT OF APPEAL
APP-008
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE
Court of Appeal Case Number
G048303
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Siale Bar number, and address)'
Supenor Gourl Case Number:
_Jeffrey V. Dunn, SBN 131926
30-2012-00601853
--
Best Best & Krieger LLP
!
FOR COURT USE ONL Y
18101 Von Karman Avenue, Suite 1000
Irvine, CA 92612
TELEPHONE NO .. (949) 263-2600 FAX NO. (O,M,''', (949) 260-0972
E-MAIL ADDRESS (Optional)
ATTORNEY FOR (Name). Amicus Curiae City of Riverside
APPELLANT/PETITIONER: MARTIN MODIANO; et al.
RESPONDENT/REAL PARTY IN INTEREST: CITY OF ANAHEIM; et al.
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): !8J INITIAL CERTIFICATE o SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8,208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a pre briefing motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This form is being submitted on behalf of the following party (name): Amicus Curiae City of Riverside
2. a. [8J There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. 0 Interested entities or persons required to be listed under rule 8.208 are as fOllows:
(1 )
(2)
(3)
(4)
(5)
Full name of interested
entity or person
o Continued on attachment 2.
Nature of interest
(Explain):
The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownerShip interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Date: October 16, 2013
Jeffrey V. Dunn
(TYPE OR PRIt:-JT NAME)
__________________________
F"m App"""" Op'"'"" u" CERTIFICATE OF INTERESTED E
Judicial Counc'il of California
APp-OOa [Rev 1, 2009J
Cal. Rules of Court, rules g 208 8488
v.ww.courtlnfo_ca_QOV
American LegalNel, Inc
com
I
The City of Riverside respectfully applies for leave to file the
accompanying amicus curiae briefin support of the City of Anaheim
pursuant to Rule 8.520, subdivision (f), of the California Rules of Court.
The City of Riverside is familiar with the content of the parties' briefs.
The City of Riverside is the prevailing party in the recent California
Supreme Court decision, City of Riverside v. Inland Empire Patients Health
And Wellness Center, Inc. (2013) 56 Cal.4th 729. As a result, the City of
Riverside has a strong interest in promoting a unifonnity of decisions
regarding municipal regulation of medical marijuana. The City of
Riverside files this brief out of concern over the lack of uniformity in the
appellate courts' decisions on municipal regulation of medical marijuana
which causes unnecessary expense to the City of Riverside and exposes it
to inconsistent appellate decisions.
The City of Riverside itself has no interest in or connection with any
of the parties in this case.
The City of Riverside believes its views will assist the court in
resolving this case by addressing the issues raised by the Appellants but not
addressed in whole or in part by Respondent City of Anaheim.
Pursuant to Rule 8.200 of the California Rules of Court, no party has
made a financial contribution to the preparation ofthis amicus brief. It was
prepared on a pro bono basis by legal counsel, Jeffrey V. Dunn, of Best
Best & Krieger LLP. Mr. Dunn was legal counsel for the City of Lake
Forest in James v. City of Costa Mesa (9th. Cir. 2012) 700 F.3d 394, and
argued the case before the United States Court of Appeals for the Ninth
Circuit.
Mr. Dunn was legal counsel for the City of Riverside in City of
Riverside, supra, and argued the case before the California Supreme Court.
He was also lead counsel for the cities in the following published decisions
on municipal regulation of medical marijuana: City of Corona v. Naulls
(2008) 166 Cal.AppAth 418; City of Claremont v. Kruse (2009) 177
Cal.AppAth 1153; City of Lake Forest v. Evergreen Holistic Collective
(2012) 203 Cal.AppAth 1413 (review granted by the California Supreme
Court); and City of Monterey v. Carrnshimba (2013) 215 Cal.AppAth 1068.
The accompanying brief contains portions of the City of Riverside's
Respondent's Brief filed in City of Riverside, supra, which was co-authored
by Mr. Dunn and Timothy T. Coates, and Gary D. Rowe of Greines Martin
Stein & Richland.
Dated: October 16, 2013 BEST BEST & KRIEGER LLP
J FR' VI. QUNN
- ttorneys fo?-Kmicus Curiae
City of Riverside
3rd Civil No. G048303
IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE
FOURTH APPELLATE DISTRICT, DIVISION THREE
MARTIN MODIANO; et aI., Civil Case No. 30-2012-
00601853
Plaintiffs/Appellants,
v.
CITY OF ANAHEIM; et aI.,
Defendants/Respondents.
On Appeal From the Superior Court
of California, County of Orange
Judge: Honorable James David Chaffee
APPLICATION OF THE CITY OF RIVERSIDE TO
FILE AMICUS BRIEF IN SUPPORT OF
RESPONDENT CITY OF ANAHEIM; PROPOSED
BRIEF OF AMICUS CURIAE
Attorneys for Amicus Curiae City of Riverside
JEFFREYV.DUNN,BarNo.131926
BEST BEST & KRIEGER LLP
18101 Von Karman Avenue, Suite 1000
Irvine, CA 92612
Telephone: (949) 263-2600
Facsimile: (949) 260-0972
Jeftfey.dunn@bbklavi.com
TABLE OF CONTENTS
Page
I. INTRODUCTION ............................................................................ I
II. CONTRARY TO THE APPELLANTS' ARGUMENT,
JAMES V. CITY OF COSTA MESA WAS CORRECTLY
DECIDED ......................................................................................... 2
A. THE APPELLANTS' ARGUMENT WOULD
CREATE A CONFLICT BETWEEN THE
AMERICANS WITH DISABILITIES ACT AND
THE CONTROLLED SUBSTANCES ACT ........................ 5
B. APPELLANTS' ARGUMENT IS INCONSISTENT
WITH THE SPECIFIC LANGUAGE OF THE
AMERICANS WITH DISABILITIES ACT ....................... 12
III. THE CITY OF ANAHEIM ORDINANCE IS NOT
PREEMPTED B Y STATE LAW ................................................... 18
IV. THE COURT MUST CONSTRUE THE DISABLED
PERSONS ACT, COMPASSIONATE USE ACT AND THE
MEDICAL MARIJUANA PROGRAM ACT AS
RETAINING MUNICIPAL POWER TO REGULATE
LAND USE, INCLUDING THE POWER TO BAN
DISPENSARIES, BECAUSE A CONTRARY
INTERPRETATION WOULD CONFLICT WITH THE
FEDERAL CONTROLLED SUBSTANCES ACT AND
VIOLATE THE SUPREMACY CLAUSE .................................... 20
A. This Court Must Avoid Any Interpretation Of The
DPA, CUA And MMPA That Conflicts With The
Federal Controlled Substances Act And Results In
Invalidation Of The State Provisions Under The
Supremacy Clause ................................................................ 21
B. Federal Law Is A Core Component Of State Law And
A State May Not Part Ways With Federal Law Merely
Because The State Disagrees With The Federal Law .......... 23
TABLE OF CONTENTS
(continued)
C. The Preemption Provision Of The CSA, 21 U.S.C.
903, Instructs Courts To Displace State Law When It
Conflicts With Or Otherwise Poses An Obstacle To
The Accomplishment Of The Full Purposes And
Page
Objectives Of The CSA ....................................................... 26
D. State Law Requiring Municipalities To Permit Medical
Marijuana Cultivation Or Distribution Conflicts With
The CSA Because It Stands As An Obstacle To The
Accomplishment And Execution Of The Full Purposes
And Objectives Of Congress ............................................... 31
E. CONCLUSION .................................................................... 37
- 11 -
55402.00021 \8330814.2
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Barnett Bank o[lvfarion County v. Nelson
(1996) 517 U.S. 25 .......................................................................... 33,35
Buckman Co. v. Plaintiff's Legal Com.
(2001) 531 U.S. 341 ........................................................................ 28,30
Claflin v. Houseman
(1876) 93 U.S. 130 ................................................................................ 24
Crosby v. National Foreign Trade Council
(2000) 530 U.S. 363 .................................................................. 26,27,31
Gade v. National Solid Wastes Management Assn.
(1992) 505 U.S. 88 ................................................................................ 32
Geier v. American Honda Motor Co., Inc.
(2000) 529 U.S. 861 ...................................................... 22,27,28,29,30
Gonzales v. Oregon
546 U.S. 243 (2006) .................................................................... 5, 15, 16
Gonzales v. Raich (2005)
545 U.S. 1 ............................................ 1,3,6, 7,8,13,15,16,22,31,32
Hines v. Davidowitz
(1941) 312 U.S. 52 .......................................................................... 22,34
Howlett v. Rose
(1990) 496 U.S. 356 .............................................................................. 24
James v. City o[Costa Mesa (9th. Cir. 2012)
700F.3d394 ................................................................ 1,2,4, 14, 17,20
Michigan Canners & Freezers Assn. v. Agricultural Marketing &
Bargaining Bd.
(1984) 467 U.S. 461 .......................................................... 33,34,35
Mondou v. New York, New Haven, & Hartford Railroad Co.
(1912) 223 U.S. I.................................. .............................. 24
-111-
Morton v. Mancari (1974)
417 U.S. 535 ...................................................................................... 3,8
Nash v. Florida Industrial Com.
(1967) 389 U.S. 235 .............................................................................. 35
New York v. United States
(1992) 505 U.S. 144 .............................................................................. 36
Perez v. Campbell
(1971) 402 U.S. 637 .............................................................................. 33
Preiser v. Rodriguez (1973)
411 U.S. 475 ...................................................................................... 3, 10
Printz v. United States
(1997) 521 U.S. 898 .............................................................................. 25
Simpson v. United States (1978)
435 U.S. 6 ......................................................................................... 3,10
Sprietsma v. Mercury Marine
(2002) 537 U.S. 51 .......................................................................... 29,30
United States v. Oakland Cannabis Buyers' Cooperative (2001)
532 U.S. 48 .............................................................................................. 6
United States v. Oakland Cannabis Club (2001)
532 U.S. 483 .......................................................................... 1,7, 8,22
Watt v. Alaska (1981)
451 U.S. 259 ....................................................................................... 3,8
Williamson v. Mazda Motor 0/ America, Inc.
(2011) U.S. ,131S.Ct.1131 ........................................................ 29
- -
Wyeth v. Levine
(2009) 555 U.S. 555 .......................................................................... 30
State Cases
City a/Garden Grove v. Superior Court (Kha)
(2007) 157 Cal.A.pp.4th 355 .................................................................. 25
City a/Lake Forest v. Evergreen Holistic Collective (Feb. 29, 2012,
G043909) _ Cal.App.4th ............................................ 25
--- -
-1\1-
City of Riverside v. inland Empire Patients Health and Wellness Center,
inc.
(2013) 56 Cal.4th 729 ............................................................ 2, 18,19,25
County o/San Diego v. San Diego NORML
(2008) 165 Cal.AppAth 798 ............................................................ 29, 30
Emerald Steel Fabricators, Inc. v. Bureau a/Labor & Industries
(Or. 2010) 230 P.3d 518 .................................................................. 30,36
People v. Davenport
(1985) 41 CaIJd 247 ............................................................................. 21
Qualified Patients Assn. v. City 0/ Anaheim
(2010) 187 Cal.AppAth 734 .................................................................. 25
Ross v. RagingWire Telecommunications, Inc., (2008)
42 Ca1.4th 920 .................................................................................. 19,23
Sullivan v. Oracle Corp.
(2011) 51 Cal.4th 1191 .......................................................................... 21
Viva! Internat. Voice For Animals v. Adidas Promotional Retail
Operations, Inc.
(2007) 41 Cal.4th 929 ................................................................ 25, 26, 27
Federal Statutes
21 U.S.C. 801 (Controlled Substances Act) ..... 1, 3,4,5,6,7,8,9,10,11,
......... 12, 13, 14, 15, 16, 17,20,21,22,26,27,29,30,31,32,35,36,37
21 US.C. 811 ........................................................................................... 7
21 U.S.C. 8J2(b)(1) .................................................................................. 22
21 US.c. 812(c) ....................................................................................... 22
21 U.S.C. 829 ........................................................................................... 22
21 US.c. 841(a)(J) ............................................................................. 5,32
21 U.S.c. 844(a) ..................................................................................... 32
21 U.S.C. 903 ....................................................... 26,27,28,29,30,32,37
-v-
42 U.S.C. 12132 (Americans with Disabilities Act)
................. _ ................. 1,2,3,4,5,8,9, 10, II, 12, 13, 14, IS, 17,20,37
42 U.S.C. 12201(d)(1) ............................................................................ 4, 9
State Statutes
Civil Code 54 (Disabled Persons Act)
................................................. J, 2,19,21,22,23,25,26,31,32,34,37
Government Code 37100 ......................................................................... 37
Health and Safety Code 11362.5 .............................................................. 15
Health and Safety Code 11362.5 (Compassionate Use Act) .1,2,5,6, 14,
............................................. 18,19,20,21,22,23,25,26,31, 32, 34, 37
Health and Safety Code 11362.5(b)( 1 )(C) ............................................... 23
Health and Safety Code 11362.7 (Medical Marijuana Program Act)
....................................................... 1, 2,18,19,20,21,22,31,32,34,37
Health and Safety Code 11362.775 .......................................................... 18
Health and Safety Code 11362.7-11362.9 ........................................ _ ...... 15
Health and Safety Code 11362.83 ............................................................ 19
Health and Safety Code 1221 O( d)(l) ....................................................... 13
Constitutional Provisions
California Constitution Article II 7 .......................................................... 18
-Vl-
I. INTRODUCTION
Appellants argue that the City of Anaheim's medical marijuana
ordinance must be overturned because it is preempted by state law. They
claim the Compassionate Use Act
l
("CUA") and the Medical Marijuana
Program Act
2
("MMP), together with the Disabled Persons Act ("DPA"),3
allow for marijuana use and distribution activities. Appellants opine those
state laws preempt the City's constitutional police power authority to
regulate those same activities. There are at least three reasons why
Appellants' state law preemption arguments are wrong.
First, contrary to Appellants' brief arguments, James v. City a/Costa
Mesa (9th. Cir. 2012) 700 F.3d 394 was correctly decided. The United
States Supreme Court has held there is no medical necessity defense to the
federal CSA prohibition against marijuana use, cultivation and distribution.
(Gonzales v. Raich (2005) 545 U.S. 1; United States v. Oakland Cannabis
Club (200 I) 532 U.S. 483.) In James, the United States Court of Appeals
for the Ninth Circuit rejected Appellants' arguments that Title II of the
federal Americans with Disabilities Act CADA,,)4 protects "medical
marijuana users who claim to face discrimination on the basis of their
lHealth and Saf. Code, 11362.5, hereinafter "CUA.") All further
undesignated statutory references are to the Health and Safety Code, un less
otherwise indicated.
2 11362.7 et seq., hereinafter "MMP."
3Civil Code 54 et seq., hereinafter "DPA."
442 U.S.c. 12132 et seq.
-1-
55402.000::> I \83308 1'1.2
marijuana use." (700 F.3d at pp. 397-398.)
Second, the California Supreme Court has recently held that a city
ban on medial marijuana facilities is not preempted by the CUA or the
MMP. In City of Riverside v. Inland Empire Patients Health and Wellness
Center, Inc. (2013) 56 Ca1.4th 729, the California Supreme Court
unanimously held that "[n]othing in the CUA or the MMP expressly or
impliedly limits the inherent authority of a local jurisdiction, by its own
ordinances, to regulate the use of its land, including the authority to provide
that facilities for the distribution of medical marijuana will not be permitted
to operate within its borders." (Riverside Slip. Op. at p. 3.) Without
preemption by the CUA and MMP, there can be preemption by the DPA.
Third, any interpretation of the CUA, MMP and DPA to require
cities to allow medical marijuana cultivation or distribution, necessarily
runs afoul of federal law preemption and the Supremacy Clause of the
federal Constitution.
II. CONTRARY TO THE APPELLANTS' ARGUMENT, JAMES
V. CITY OF COSTA MESA WAS CORRECTLY DECIDED
Appellants' argue that the court should disregard James v. City of
Costa .Mesa, supra, and that this court enter its own contrary decision. In
James, the United States Court of Appeal for the Ninth Circuit considered
whether the federal ADA preempted the cities' regulation prohibiting
marijuana distribution facilities. Jmnes is entirely apposite here on whether
-2-
the ADA provides an exception to the federal CSA.
Appellants argue that the ADA authorizes qualified persons to use
marijuana for medical purposes, and that this Court should ignore the Ninth
Circuit decision which rejected the Appellants' argument. The federal
Controlled Substances Act ("CSA"), however, categorically prohibits the
use of marijuana, including for medical purposes, except as part of a
tederally-approved research program. As the Supreme Court stated in
Gonzales v. Raich, ,supra, at p. 14, the CSA by its express terms
categorically prohibits the use of marijuana even when used for medical
purposes, because of its "high potential for abuse" and "lack of any
accepted medical use." The Appellants' argument would create a conflict
between the ADA and the CSA, by authorizing medical marijuana use
under the ADA even though such use is categorically prohibited under the
CSA.
Under canons of statutory construction, tederal statutes must, to the
extent possible, be construed harmoniously rather than as in conflict. (Watt
v. Alaska (1981) 451 U.S. 259, 266-267; Morton v. Mancari (1974) 417
u.S. 535, 549.) Further, where a specific statute and a general statute
address the same subject matter, the more specific statute generally prevails
over the more general statute. (Simpson v. United States (1978) 435 U.S. 6,
15; Preiser v. Rodriguez (1973) 411 U.S. 475,489-490. The CSA
establishes a specific, comprehensive national system for regulation of drug
"
-j-
use, and categorically prohibits the use of certain drugs, including
marijuana, even where marijuana is used for medical purposes. By
contrast, the ADA does not specifically regulate or address the subject of
drug use, including medical marijuana use. Rather, the ADA expressly
adopts the CSA standards as applied to drug use by ADA-qualified persons,
by providing that the "illegal use of drugs" as defined in the ADA means
"the use of drugs, the possession or distribution of which is unlawful under
the Controlled Substances Act." (42 U.S.C. 12201(d)(I).) Under the
canons of federal statutory construction, which require that statutes be
harmonized if possible and that specific statutes generally prevail over
general ones, the CSA's specific, categorical prohibition of medical
marijuana use applies to ADA-qualified persons, and therefore the ADA
does not authorize such persons to use marijuana for medical purposes.
In James, the Ninth Circuit applied these canons of statutory
construction and concluded that the ADA does not authorize medical
marijuana use, because such use is categorically prohibited by the CSA and
the ADA incorporates the CSA's prohibitions. The Ninth Circuit properly
hannonized the statutes and avoided construing them as in cont1ict. The
Ninth Circuit's construction is supported by the specific provisions of the
ADA itself. Accordingly, this Court should decline to disregard the Ninth
Circuit decision and should affirm the lower court's decision.
-4-
A. THE APPELLANTS' ARGUMENT WOULD CREATE
A CONFLICT BETWEEN THE AMERICANS WITH
DISABILITIES ACT AND THE CONTROLLED
SUBSTANCES ACT.
Appellants seem to argue that the ADA authorizes qualified disabled
persons to use marijuana for medical purposes if such use is supervised by
a licensed health care professional. The argument would create a conflict
between the ADA and the CSA, 21 U.S.C. 801 et seq., because the CSA
categorically prohibits persons from using marijuana under all
circumstances, including for medical purposes, except as part of a
federally-approved research program.
The CSA establishes a comprehensive national scheme regulating all
drug use in the nation, and categorically prohibits the use of certain drugs.
Under the CSA. it is unlawful for any person "knowingly or intentionally ..
. to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance" except as
authorized in the CSA. (21 U.S.C. 841(a)(\).) The CSA establishes five
schedules-Schedules I through V-classifYing all drugs "based on their
potential for abuse or dependence, their accepted medical use, and their
accepted safety for use under medical supervision." (Gonzales v. Oregon,
546 U.S. 243, 250 (2006); 21 U.S.c. 812.) Schedule I "contains the most
severe restrictions on access and use .... " (Oregon, supra, 546 U.S. at
-5-
250.) Schedule I drugs are categorically prohibited under all circumstances
except as part of a federally-approved research program. (Jd. at 823(f).)
Marijuana is classified as a Schedule I drug. (21 U.S.C. 812.) Thus, the
CSA categorically prohibits all marijuana use, even for medical purposes,
except as part of a federally-approved research program.
In Gonzales v. Raich, supra, 545 U.S. 1, the Supreme Court held that
because marijuana is a Schedule I drug, the use of marijuana even for
medical purposes is illegal under the CSA. The Court stated that Schedule
I drugs "are categorized as such because of their high potential for abuse,
lack of any accepted medical use, and absence of any accepted safety for
use in medical supervised treatment." (Raich, 545 U.S. at p. 14.) "By
classifying marijuana as a Schedule I drug, as opposed to listing it on a
lesser schedule, the manufacture, distribution, or possession of marijuana
became a criminal offense" except when part of a federally-approved
research program. (Jd.) According to Raich, the CSA prohibits marijuana
use even though such use is "for personal medical purposes on the advice
ofa doctor." (!d. At p. 27.) The fact that the Appellants' possession and
cultivation of marijuana is allegedly "'in accordance with state law' cannot
serve to place Appellants' activities beyond congressional reach. (ld. at p.
29.)
Earlier, in United States v. Oakland Cannabis Buyers' Cooperative
(2001) 532 U.S. 48, the Supreme Court rejected the argument that the CSA
-6-
provides a "medical necessity" defense for marijuana, and stated that
marijuana has no valid medical use under the CSA. The Court stated:
[T]he statute [the CSA] reflects a determination
that marijuana has no medical benefits worthy
of an exception (outside the confines of a
Government approved research project).
Whereas some other drugs can be dispensed and
prescribed for medical use, ... the same is not
true for marijuana. Indeed, for purposes of the
Control Substances Act, marijuana has "no
currently accepted medical use" at all.
(Oakland Cannabis, 532 U.S. at p. 491, quoting 21 U.S.C. 811.) Thus,
the CSA, on its face and as interpreted in Raich and Oakland Cannabis,
categorically prohibits the use of marijuana, including for medical
purposes, except as part of a federally-approved research program.
Appellants seem to argue that the CSA was intended only to combat
"recreational drug use" and therefore does not apply to medical marijuana
use. On the contrary, the Supreme Court stated in Raich and Oakland
Cannibas that, under the CSA, marijuana does not have "any accepted
medical use," (Raich, 545 U.S. at 14), and that marijuana "has no medical
benefits worthy of an exception" and "has 'no currently medical use' at
all," (Oakland Cannabis, 532 U.S. at 491.) As Raich stated, the CSA
prohibits marijuana use even though such use is "for personal medical
purposes on the advice of a doctor." (Raich, 545 at 27.) The Appellants
ignore that the fact that all use of marijuana is illegal "recreational" use
including purported medical uses under the Supreme Court's decisions in
-7-
Raich and Oakland Cannabis.
Appellants' arguments would create a conflict between the ADA and
the CSA, by interpreting the ADA as authorizing ADA-qualified persons to
use medical marijuana under the supervision of a licensed health care
professional, even though the CSA categorically prohibits the use of
medical marijuana under all circumstances except as part of a federally-
approved research program. Under Appellants' argument, the ADA would
authorize under some circumstances what the CSA categorically prohibits
under all circumstances. The Supreme Court has held that statutes must be
construed harmoniously, if possible, so that conflicts between them are
avoided. (Watt v. Alaska, supra, 451 U.S. at pp. 266-267; Morton v.
Mancari, supra, 417 U.S. at p. 549.) Applying this rule of statutory
construction, the Ninth Circuit rejected the petitioners' argument and
construed the statutes harmoniously, holding that the ADA does not
authorize ADA-qualified persons to use marijuana for medical purposes.
Because the Ninth Circuit harmoniously construed the statutes-and as will
be explained later, the Ninth Circuit's construction is consistent with the
language of the ADA itself-this Court should decline to ignore the Ninth
Circuit decision, and should affirm the lower court judgment.
Appellants argue that any ambiguity in the ADA should be resolved
in favor of exempting ADA-qualified persons from the CSA's prohibitions
against medical marijuana use, rather than in favor of applying the CSA's
-8-
prohibitions to them. They argue that "the ADA should be interpreted in a
manner that provides broad coverage," and that any provision "excluding
coverage" should be "interpreted narrowly." Because the ADA does not
"clearly and unambiguously" prohibit medical marijuana use, they argue,
ADA-qualified persons have the right to medical use of marijuana under
the statute.
Contrary to the petitioners' argument, the statutory interpretation
canons applicable in construing ambiguous statutes provide that any
ambiguities in the ADA must be resolved against creating an exception to
the CSA' s categorical prohibition of medical marijuana use, rather than in
favor of creating such an exception. The CSA specifically addresses the
subject of drug use, including the use of marijuana; establishes a
comprehensive national program regulating drug use; and categorically
prohibits the use of certain drugs, including marijuana even when used for
medical purposes. The ADA, by contrast, does not address the subject of
drug use or regulate such use, comprehensively or otherwise. Instead, the
ADA incorporates the CSA standards in establishing the legality of drug
use under the ADA; the ADA provides that "[t]he term 'illegal use of
drugs' means the use of drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act." (42 U.S.C. 12201(d)(1).)
Under the canons of statutory construction, "precedence" must be given "to
the terms of the more specific statute where a general statute and a specific
-9-
statute speak to the same concern, even if the general provision was enacted
later." (Simpson v. United States (1978) 435 U.S. 6,15; see Preiser v.
Rodriguez (1973) 411 U.S. 475, 489-490.) Because the CSA establishes a
comprehensive national policy specifically regulating drug use and the
ADA does not, and since the ADA expressly incorporates the CSA
standards applicable to drug use, these canons of construction support the
conclusion that the ADA does not authorize medical use of marijuana that
is categorically prohibited by the CSA. If Congress had intended to depart
from its comprehensive national policy of regulation when it passed the
ADA, Congress would have expressed its intention clearly and
unequivocally. No such clear and unequivocal expression of such
congressional intent appears in the ADA.
The Ninth Circuit recognized that the Appellants' argument would
mark a significant departure from Congress' nationwide system of
regulating drug use in the CSA, and that Congress would not have departed
from this policy without a clear expression of its intent. The court stated:
Under the plaintiffs' view, the ADA worked a
substantial departure from ... accepted federal
policy by extending federal protections to
federally prohibited, but state-authorized,
medical use of marijuana. That would have
been an extraordinary departure from policy,
and one that we would have expected Congress
to take explicitly.
(700 F.3d at p. ___ .[original emphasis].) As the court explained, "[t]he
-10-
cities' interpretation," i.e., the interpretation of the respondents here, "not
only makes the best sense of the statute's text and the historical context of
its passage, but also is the only interpretation that harmonizes the ADA and
the CSA."
The Ninth Circuit dissenting opinion-which the Appellants argue
was "well reasoned," demonstrates, perhaps unwittingly, the extent to
which the Appellants' argument would create a conflict between the ADA
and the CSA. The dissenting opinion adopted the same view as that
advanced by the Appellants here, namely that the ADA authorizes medical
marijuana use even though such use is prohibited by the CSA. The
dissenting opinion argued that this view would not create a conflict
between the ADA and the CSA, because "recognizing that individuals
using CSA-covered drugs are not excluded from ADA coverage does not
preclude prosecuting them under the CSA." This remarkable statement
appears to suggest that the statutes can be harmonized because the ADA
authorizes disabled persons to use medical marijuana even though they may
be prosecuted tor such use under the CSA. Obviously Congress did not
intend that persons have the right to use medical marijuana under the ADA
but are subject to criminal prosecution under the CSA; Congress does not
authorize conduct or activity in one statute that it directly criminalizes in
another statute. The fact that the dissenting opinion provided such an
untenable analysis in attempting to harmonize the statutes convincingly
-11-
demonstrates they cannot be harmonized under a well- reasoned analysis.
In sum, the Appellants' argument would create a conflict between
the ADA and the CSA, by construing the ADA as authorizing under certain
circumstances what the CSA categorically prohibits under all
circumstances. The Ninth Circuit, rejecting the Appellants' argument,
provided a reasoned statutory analysis that harmonizes the statutes and
takes the policies of both statutes into account. This Court need not, and
should not, ignore the Ninth Circuit decision to determine how to properly
harmonize the statutes, because the Ninth Circuit has already done so.
B. APPELLANTS' ARGUMENT IS INCONSISTENT
WITH THE SPECIFIC LANGUAGE OF THE
AMERICANS WITH DISABILITIES ACT.
Apart from the fact that the petitioners' argument would create a
conflict between the ADA and the CSA, Appellants' argument is
inconsistent with the specific language of the ADA itself. The ADA by its
own terms incorporates the prohibitions of the CSA, and does not authorize
drug use that is prohibited by the CSA except where the CSA itself
provides an exception.
The ADA prohibits a public entity from discriminating against a
"qualified person with a disability." 42 U.s.C. 12132. A "qualified
person with a disability" is defined as "an individual with a disability" who
is eligible to receive services from the public entity. Id. at 12131 (2). An
-12-
"individual with a disability" is defined as not including a person who is
engaged in the "illegal use of drugs." Jd. at 12210(a). Section
1221 O( d)( I) then defines "[illegal use of drugs" as follows:
The term "illegal use of drugs" means the use of
drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act
(21 U .S.C. 812). Such term does not include
the use of a drug taken under supervision by a
licensed health care professional, or other uses
authorized by the Controlled Substances Act or
other provisions of Federal law.
(Id. at 12210(d)(1).) Thus, the ADA prohibits qualified persons from
engaging in the "illegal use of drugs," which is defined as drug use that is
"unlawful" under the CSA, except for drug use supervised by a licensed
health care professional or "other" drug uses authorized by the CSA or
other federal laws.
This conclusion is supported by other statutory indicia. If the
ADA's supervised use exception were construed as authorizing drug use
prohibited by the CSA, such a construction would impair the CSA's broad
goal of regulating drug use on a national level and categorically prohibiting
certain drug use that is deemed as having no medical value or significance.
Because the CSA categorically prohibits medical marijuana use because of
its lack of "any accepted medical use," (Gonzales v. Raich, supra, 545 U.S.
at p. 14), medical marijuana use cannot have 'any accepted medical use"
under the ADA. Under Appellants' statutory construction, any ADA-
-13-
qualified person would have access to the nation's most dangerous and
pernicious drugs, such as heroin and cocaine, as long as the drug use is
supervised by a licensed health care professional. As the Ninth Circuit
stated:
A contrary interpretation of the exception for
"use of a drug taken under supervision by a
licensed health care professional" would allow a
doctor to recommend the use of any controlled
substance-including cocaine or heroin-and
thereby enable the drug user to avoid the
ADA's illegal drug exclusion. Congress would
not have intended to create such a capacious
loophole, especially through such an ambiguous
prOVISIOn.
(James v. City of Costa Mesa, 700 F.3d at p.403 [original emphasis].) As
the Ninth Circuit concluded, "the context [of the ADA] reveals Congress'
intent to define 'illegal use of drugs' by reference to federal, rather than
state,law."(Id.)
More broadly, Appellants contend that Congress, in passing the
ADA, intended that state laws decriminalizing a particular drug use, such as
medical marijuana use, trump the comprehensive national policies
established by Congress in the CSA. They assert that the Ninth Circuit
panel erroneously held that the ADA defines "illegal drug use" by reference
to federal law rather than state law." In California, for example, California
has adopted a medical marijuana law, the Compassionate Use Act, that
decriminalizes the use of medical marijuana under the supervision of a
-14-
licensed caregiver. (Health & Saf. Code 11362.5, 11362.7-11362.9.) In
Gonzales v. Raich, supra, the Supreme Court, reviewing the CSA as
applied to California's medical marijuana law, held that the CSA's
prohibition of medical marijuana use was a valid exercise of Congress'
powers under the Commerce Clause of the Constitution. Although the
Court's addressed only the constitutional question and did not reach the
question whether the CSA preempts California's medical marijuana law,
the decision nonetheless implied that the CSA preempts California's
medical marijuana law, by holding that the CSA is a valid exercise of
Congress' constitutional power and the CSA categorically prohibits
medical marijuana use because of its lack of "any accepted medical use."
(Raich, 545 U.S. at 14.) Raich makes clear that Congress has the
constitutional power to prohibit medical marijuana use, and that Congress
exercised this constitutional power in enacting the CSA. If Congress, in
enacting the ADA, had intended to depart from the national policy
established in the CSA, as that national policy was defined and upheld in
Raich, Congress would have spelled out its intention clearly and
unmistakably. Because Congress did not do so, the ADA cannot properly
be construed as authorizing the states to adopt laws that override the
national policies established in the CSA.
Appellants also contend that this Court's decision in Gonzales v.
Oregon, 546 U.S. 243 (2006), supports the conclusion that the ADA
-15-
authorizes medical marijuana use in California. In Oregon. the Supreme
Court held that the U. S. Attorney General did not have authority under the
CSA to preempt Oregon's statute authorizing physician-assisted suicide.
Applying principles offederalism, the Court stated that Congress did not
intend, in enacting the CSA, to "regulate the practice of medicine
generally," or to preempt "the States' general regulation of medical practice
.... " (Oregon, 546 U.S. at p. 270.) Although the CSA does not displace
the states' general authority to regulate medical practice, the CSA
nonetheless establishes certain categorical prohibitions against the use of
certain types of drugs that are deemed as having no medical value; these
categorical prohibitions are contained in Schedule I of the CSA, and
include the use of marijuana for medical purposes, which, as the Supreme
Court has stated, has no "accepted medical use." (Raich, 545 U.S. at p. 14.)
Thus, although the CSA does not generally regulate medical practice or
override state laws regulating medical practice, the CSA establishes certain
categorical prohibitions that displace conflicting state laws, including the
use of medical marijuana. The Oregon decision is not relevant in this case,
which involves medical marijuana use that is categorically prohibited by
the CSA.
Appellants assert that the Ninth Circuit majority opinion was
"admittedly" a "near-draw." In fact, the "near-draw" characterization was
used by the dissenting opinion to charactcrize the majority opinion, not by
-\6-
the majority opinion itself. (700 F.3d at p. 411.) The phrase "near-draw"
does not appear in the majority opinion. Instead, the majority opinion
concluded, based on thorough analysis and without equivocation, that "in
light of the text, the legislative history, ... and the relationship between the
ADA and the CSA, we agree with both district courts that have considered
the question, as well as the Department of Housing and Urban
Development and the United States as amicus curiae, ... that doctor
supervised marijuana use is an illegal use of drugs not covered by the
ADA's supervised use exception." (700 F.3d at p. 403.)The majority
opinion was not a "near-draw."
In sum, the ADA by its own terms does not authorize supervised
drug use, including medical marijuana use, that is categorically prohibited
by the CSA. The Appellants' arguments-apart from creating a conflict
between the two statutes-are inconsistent with the statutory language of
the ADA itself; would flout the ADA's statutory scheme that incorporates
the CSA standards into the ADA; and would impair the CSA's
comprehensive national system of regulating drug use, by providing an
exception for qualified persons under the ADA. Congress did not provide a
specific exemption from the CSA in enacting the ADA, and the ADA
cannot properly be construed as providing such an exemption.
-17-
III. THE CITY OF ANAHEIM ORDINANCE IS NOT
PREEMPTED BY STATE LAW
Appellants contend that the City of Anaheim ordinance is preempted
because of the CUA and MMP. The California Supreme Court rejected this
argument in City of Riverside, supra. 56 Cal.4th 729:
"[T]he CUA and the MMP, by their substantive
terms, grant limited exemptions from certain
state criminal and nuisance laws, but they do
not expressly or impliedly restrict the authority
of local jurisdictions to decide whether local
land may be used to operate medical marijuana
facilities." (Riverside Slip Op. at pp. 25-26, fn.
8.)
In rejecting any argument that Health and Safety Code section
11362.775 preempts the municipalities' police power authority under
Article II section 7 of the California Constitution, the California Supreme
Court held:
In section 11362.775, the MMP merely
removes state law criminal and nuisance
sanctions from the conduct described therein.
By this means, the MMP has signaled that the
state declines to regard the described aets as
nuisances or criminal violations, and that the
state's enforcement mechanisms will thus not
be available against these acts. Accordingly,
localities in California are left free to
accommodate such conduct, if they choose, free
of state interference. (RiverSide Slip Op. at p.
27.)
"As we have noted, the CUA and the MMP are
careful and limited forays into the subject of
medical marijuana, aimed at striking a delicate
-18-
balance in an area that remains controversial,
and involves sensitivity in federal-state
relations. We must take these laws as we find
them, and their purposes and provisions are
modest. They remove state-level criminal and
civil sanctions from specified medical
marijuana activities, but they do not establish a
comprehensive state system oflegalized
medical marijuana; or grant a 'right' of
convenient access to marijuana for medicinal
use; or override the zoning, licensing, and
police powers of local jurisdictions; or mandate
local accommodation of medical marijuana
cooperatives, collectives, or dispensaries."
(Riverside Slip Op. at p. 38.)
Finally, Health and Safety Code section 11362.83 states that
"[n]othing in this article," i.e., the MMP, prohibits the "civil and criminal
enforcement" of "local ordinances that regulate the location, operation, or
establishment of a medical marijuana cooperative or collective." As
recognized by the California Supreme Court in City of Riverside, supra,
"[n]othing in the CVA or MMP expressly or implicitly limits the inherent
authority of a local jurisdiction by its own ordinances, to regulate the use of
its land .... " (Riverside, 56 Cal.4th at p. 738.)
Appellants' DPA preemption claim is inextricably connected to their
arguments that the CVA and MMP expressly or implicit limit the
constitutional authority of municipalities to enact public safety and other
land use ordinances. There is no preemption by state law of this
constitutional authority. As the California Supreme Court observed in Ross
v. RagingWire Telecommunications. inc. ,(2008) 42 Cal.4th 920), and
-19-
reaffirmed by the Unites States Court of Appeal for the Ninth Circuit, the
California Legislature could not have intended to allow for California's
employment discrimination law to accommodate marijuana use "silently
and without debate." (James v. City a/Costa Mesa, 700 F/3d at p. 403
["Congress could not have intended to create such a capacious ["ADA"]
loophole .... J)
IV. THE COURT MUST CONSTRUE THE DISABLED PERSONS
ACT, COMPASSIONATE USE ACT AND THE MEDICAL
MARIJUANA PROGRAM ACT AS RETAINING
MUNICIPAL POWER TO REGULATE LAND USE,
INCLUDING THE POWER TO BAN DISPENSARIES,
BECAUSE A CONTRARY INTERPRETATION WOULD
CONFLICT WITH THE FEDERAL CONTROLLED
SUBSTANCES ACT AND VIOLATE THE SUPREMACY
CLAUSE
The California Supreme Court's recent affirmation that local
authority over land use decisions must be presumed absent the Legislature's
clear intention to displace it, and that the CUA and MMPA cannot be
interpreted to preempt the power of municipalities to regulate medical
marijuana dispensaries within their borders, removes any doubt as to
whether the City of Anaheim has constitutional authority to enforce its
ordinance. Yet to the extent there are any remaining doubts as to whether
-20-
the CUA and MMPA authorize the DPA to have somehow preempted local
authority, these state laws must be resolved against any interpretation that
requires local entities to sanction medical marijuana cultivation or
distribution operations and facilities. This is because such an interpretation
necessarily runs afoul of the federal CSA and would consequently require
the invalidation of the OPA, CUA and MMPA under the Supremacy Clause
of the United States Constitution.
A. This Court Must Avoid Any Interpretation Of The DPA,
CUA And MMPA That Conflicts With The Federal
Controlled Substances Act And Results In Invalidation Of
The State Provisions Under The Supremacy Clause
It is axiomatic that in interpreting a statute, this court is to avoid any
interpretation that may run afoul of the United States Constitution. (People
v. Davenport (1985) 41 Cal.3d 247, 266 [''If[] questions about the
constitutional validity of the statute may be avoided by adopting an
alternate construction which is consistent with the statutory language and
purpose, it is [the court's) duty to adopt the alternate construction"];
Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191,1201 [avoiding commerce
clause issues because the Court "would not construe a statute in a manner
that raised serious constitutional questions if the statute's language
reasonably permitted any other construction"].)
The federal Controlled Substances Act, 21 U.S.c. 801 et seq.,
-21-
"prohibits the manufacture and distribution ofvarious drugs, including
marijuana." (United States v. Oakland Cannabis Buyers' Cooperative
(2001) 532 U.S. 483, 486.) "Whereas some other drugs can be dispensed
and prescribed for medical use, see 21 U.S.C. 829, the same is not true for
marijuana. Indeed, for purposes of the Controlled Substances Act,
marijuana has 'no currently accepted medical use' at all." (Id. at p. 491,
quoting 21 U.S.C. 812; see also Gonzales v. Raich (2005) 545 U.S. 1,14
["In enacting the CSA, Congress classified marijuana as a Schedule I drug.
21 U.S.C. 812(c) .... Schedule I drugs are categorized as such because
of their high potential for abuse, lack of any accepted medical use, and
absence of any accepted safety for use in medically supervised treatment.
812(b)(I)"].)
If this court concludes that the CUA and the MMPA authorize or
otherwise permit the DP A to require the City of Anaheim to allow medical
marijuana cultivation or distribution within its borders, then the CSA
preempts California law. This is because a state law requiring
municipalities to facilitate the cultivation or distribution of marijuana
would plainly '''stand as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress,'" and thus violate the
Supremacy Clause. (Geier v. American Honda Motor Co .. Inc. (2000) 529
U.S. 861, 899, quoting Hines v Davidowitz (1941) 312 U.S. 52, 67.)
-22-
B. Federal Law Is A Core Component Of State Law And A
State May Not Part Ways With Federal Law Merely
Because The State Disagrees With The Federal Law
The City of Anaheim ordinance must be set aside, in Appellants'
view, because they claim that California's DPA, through the CUA and the
MMPA, authorizes medical marijuana use despite the federal government's
complete prohibition against marijuana use for medical treatment.
Appellants fundamentally misunderstand the relationship between
state and federal law. Under principles of federalism, California is entirely
free to "create a narrow exception to the [state's] criminal law," (Ross v.
RagingWire Telecommunications, Inc., supra, 42 Cal.4th 920), or even to
repeal its own criminalization of marijuana entirely. As the California
Supreme Court stated in Ross: "Although California's voters had no power
to change federal law, certainly they were free to disagree with Congress's
assessment of marijuana, and they also were free to view the possibility of
beneficial medical use as a sufficient basis for exempting from criminal
liability under state law patients whose physicians recommend the drug."
(Jd. at p. 927.) It is one thing to repeal a state criminal prohibition, or to
send a message, through state legislation, to Congress, to encourage the
state and federal governments to work together to create safe and lawful
marijuana distribution to individuals in need of medical marijuana (
11362.5, subd. (b)(I)(C. It is something else entirely to ask this court to
-23-
force the City of Anaheim to allow medical marijuana cultivation or
distribution.
A state does not have the option of declining to follow federal law
because it disagrees with that law. Rather, federal law constitutes a core
part of California's law, binding on state courts, state government officials,
and municipal officials alike. (See Claflin v. Houseman (1876) 93 O.S.
\30,136-137 ["The laws of the United States are laws in the several States,
and just as much binding on the citizens and courts thereof as the State laws
are .... [A state] is just as much bound to recognize [federal law] as
operative within the State as it is to recognize the State laws. The two
together form one system of jurisprudence, which constitutes the law of the
land for the State"]; Mondou v. New York, New Haven, & Hartford
Railroad Co. (1912) 223 U.S. 1,57 ["When Congress, in the exertion of the
power confided to it by the Constitution, adopted that act, it spoke for all
the people and all the States, and thereby established a policy for all. That
policy is as much the policy of [the State] as if the act had emanated from
its own legislature"); Howlett v. Rose (1990) 496 U.S. 356, 367 ["[T]he
Constitution and laws passed pursuant to it are as much laws in the States
as laws passed by the state legislature. The Supremacy Clause makes those
laws 'the supreme Law of the Land,' and charges state courts with a
coordinate responsibility to enforce that law"]' Emphasis added.])
As the California Supreme Court stated, "[t]he supremacy clause of
-24-
the United States constitution establishes a constitutional choice-of-law
rule, makes federal law paramount, and vests Congress with the power to
preempt state law. [Citations.]" (Viva! Internat. Voice For Animals v.
Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.)
To the extent that Appellants argue that the CUA and the MMPA authorize
the DPA to require the City of Anaheim to allow medical marijuana
cultivation or distribution, their argument creates a conflict with federal
law.
This court has taken the view that a municipality must follow state
law even when it conflicts with federal law. The court's fundamental
premise is that the obligation to follow federal law is a form of conscription
that violates principles of federalism. (See City of Lake Forest v.
Evergreen Holistic Collective (Feb. 29, 2012, 0043909) _CaI.App.4th_,
fn. 12; see also Qualified Patients Assn. v. City of Anaheim (2010) 187
Cal.App.4th 734 criticized by City of Riverside, supra, 56 Ca1.4th at p. 762;
City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th
355.) But this cannot be true. While the federal government may not
commandeer state or local executive or legislative officials to pass
legislation or actually enforce federal law (e.g., raid medical marijuana
facilities), see Printz v. United States (1997) 521 U.S. 898, 929, state courts
have an obligation to insist that all state and aU local officials foUow and
obey federal law even, and especiaUy, when state and federal law conf1ict.
-25-
It is clear that any interpretation of the DPA, CUA and MMPA that
requires municipalities to permit medical marijuana dispensaries
necessarily conflicts with, and stands as an obstacle to accomplishment of
the purposes underlying, the federal CSA. Hence, any such interpretation
runs afoul of the Supremacy Clause and must be rejected.
C. The Preemption Provision Of The CSA, 21 U.S.c. 903,
Instructs Courts To Displace State Law When It Conflicts
With Or Otherwise Poses An Obstacle To The
Accomplishment Of The Full Purposes And Objectives Of
The CSA.
'There are four species of federal preemption: express, conflict,
obstacle, and field." (Viva! Internat., supra, 41 Ca1.4th at p. 935.) This
case concerns conflict (also known as impossibility) and obstacle (also
known as frustration-of-purpose) preemption -- two categories which
typically run together and are most frequently jointly classified under the
heading "conflict preemption." (See Id. at p. 935, fn. 3 ["The categories of
preemption are not rigidly distinct," quoting Crosby v. National Foreign
Trade Council (2000) 530 U.S. 363, 372, fn. 6, internal quotations marks
omittedll
SBoth the California Supreme Court and the United States Supreme Court
have grouped conflict preemption (which asks whether "simultaneous
compliance with both state and federal directives is impossible") and
obstacle preemption (-which asks whether the state law at issue "'stands as
-26-
Central to the analysis is section 903 of the CSA, the statute's
preemption provision, which provides:
No provision of this subchapter shall be
construed as indicating an intcnt on the part of
the Congress to occupy the field in which that
provision operates, including criminal penalties,
to the exclusion of any State law on the same
subject matter which would otherwise be within
the authority of the State, unless there is a
positive connict between that provision of this
subchapter and that State law so that the two
cannot consistently stand together.
(21 U.S.C. 903.)
Congressional intent in this provision is clear from the plain
meaning of the text: Congress wished to allow states to create their own
criminal penalties for drug-related conduct that also violates the CSA,
while at the same time forbidding states from enacting statutes that have the
effect of undermining the CSA. The CSA serves, effectively, as a noor,
an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress"') together, as a single category. (Viva! Internat.,
supra, 41 Cal.4th at p. 936; Geier, supra, 529 U.S. at p. 873 ["The Court
has not previously driven a legal wedge, only a terminological one between
'conflicts' that prevent or frustrate the accomplishment of a federal
objective and 'conflicts' that make it 'impossible' for private parties to
comply with both state and federal law. Rather, it has said that both forms
of cont1icting state law are 'nullified' by the Supremacy Clause"]; Crosby,
supra, 530 U.S. pp. 372-373 ["State law is naturally preempted to the
extent of any conflict with a federal statute. We will find preemption where
it is impossible for a private party to comply with both state and federal law
... , and where 'under the circumstances of [aJ particular case, [the
challenged state law 1 stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress, '" internal
citations omitted].)
-27-
which states are free to build upon and enhance, but not undermine, through
legislation of its own. In the parlance of preemption, Congress in section
903 wished to disclaim field preemption and, at the same time, embrace
conflict and obstacle preemption.
This plain reading comports with the United States Supreme Court's
approach in preemption cases. In Buckman Co. v. Plaintiff's Legal Com.
(2001) 531 US. 341, 352, the Court rejected an argument that the existence
of an express preemption clause in a federal statute precluded the full range
of conflict and obstacle preemption analysis. "[T]hat contention must fail,"
the Court wrote, "in light of our conclusion last Term in [Geier, supra, 529
US. 861], that neither an express pre-emption provision nor a saving clause
'bar[s] the ordinary working of conflict pre-emption principles.'"
(Buckman, supra, 531 US. at p. 352.) In Geier, for its part, the Court held
that the existence of express preemption language and a saving clause in a
statute "imposes no unusual, 'special burden' against pre-emption." (Geier,
supra, 529 US. at p. 873.) Instead, the Court found it essential to consider
both conflict and obstacle preemption in cases where the federal statute in
question contains an express preemption provision and/or a saving clause.
"Congress," the Court noted, "would not Viant either kind of conflict"
(ibid.); "the Court has thus refused to read general 'saving' provisions to
tolerate actual conflict both in cases involving impossibility, [citation], and
in 'frustration-of-purpose' cases." (ld. at pp. 873-874.) In the absence of
-28-
both types of preemption analysis, the Court noted, "state law could impose
legal duties that would conflict directly with federal regulatory mandates."
(Id. at p. 871.) Failure to apply the full run of ordinary preemption
principles would also "engender legal uncertainty with its inevitable system
wide costs (e.g., conflicts, delay, and expense) as courts tried sensibly to
distinguish among varieties of 'conflict' (which often shade, one into the
other) when applying this complicated rule to the many federal statutes that
contain some form of an express pre-emption provision, a saving provision,
or as here, both." (!d. at p. 874; accord Sprietsma v. Mercury Marine
(2002) 537 U.S. 51, 64 [applying conflict and obstacle preemption analysis
when statute contains preemption clause and saving statute l; Williamson v.
Mazda Motor of America, Inc. (2011) ~ U . S . ~ , 131 S.Ct. 1131, 1136
[same].)
Nonetheless, despite uniform authority from the United States
Supreme Court, the Fourth District Court of Appeal, Division One, has held
that section 903 only embraces conflict or impossibility preemption, and
forecloses any inquiry into obstacle or frustration-of-purpose preemption.
(County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,
825 ["Because Congress provided that the CSA preempted only laws
positively conflicting with the CSA so that the two sets of laws could not
consistently stand together, and omitted any reference to an intent to
preempt laws posing an obstacle to the CSA, we interpret title 21 United
-29-
States Code section 903 as preempting only those state laws that positively
conflict with the CSA so that simultaneous compliance with both sets of
laws is impossible"].) Under this reading of section 903, preemption would
potentially be inappropriate in this case because it is in theory possible for a
private party to comply with both federal and state law: A person could
choose not to open a medical marijuana dispensary and thus avoid the
conflict between state authorization and federal prohibition.
As noted, the San Diego NORML court's reading of section 903 is
contrary to Geier, Buckman and Sprietsma. Moreover, it cannot be
reconciled with the Supreme Court's subsequent decision in Wyeth v.
Levine (2009) 555 U.S. 555. Wyeth addressed the preemptive effect of the
Federal Food, Drug & Cosmetic Act, which contained a saving clause
similar to the one in this case. The saving clause in Wyeth stated that "a
provision of state law would only be invalidated upon a direct and positive
conflict with the" federal statute. (Jd. at p. 567.) The Court did not
conclude that "direct and positive conflict" language permitted only the
application of conflict or impossibility preemption. To the contrary, it
analyzed the state law thoroughly under principles of both conflict and
obstacle preemption. (Id. at pp. 567-576.) It is necessary to do the same in
this case. Indeed, in Emerald Steel Fabricators, Inc. v. Bureau of Labor &
Industries (Or. 2010) 230 P.3d 518,527-28, the Oregon Supreme Court,
citing Wyeth, analyzed both conflict and obstacle preemption in a medical
-30-
marijuana case, before concluding that obstacle preemption invalidated the
state statute.
The CSA consequently preempts Appellants' construction of the
DPA, CUA and the MMPA, ifrequiring municipalities to allow medical
marijuana cultivation or distribution operations either renders it "impossible
for a private party to comply with both state and federal law" or '''stands as
an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress'" such that "the state law undermines the intended
purpose and 'natural effect''' of the CSA. (Crosby, supra, 530 U.S. at pp.
372-373.)
D. State Law Requiring Municipalities To Permit Medical
Marijuana Cultivation Or Distribution Conflicts With
The CSA Because It Stands As An Obstacle To The
Accomplishment And Execution Of The Full Purposes
And Objectives Of Congress
The CSA constitutes a "comprehensive regime to combat the
international and interstate traffic in illicit drugs." (Raich, supra, 545 U.S.
at p. 12.) Precisely because it seeks to be "comprehensive," and views
drugs as something worthy of "combat," there is no room within the
statutory scheme for the undermining state law commands Appellants seek
to impose upon the City of Anaheim. (Ibid.) The CSA's main objectives
"were to conquer drug abuse and to control the legitimate and illegitimate
-3 1-
traffic in controlled substances. Congress was particularly concerned with
the need to prevent the diversion of drugs from legitimate to illicit
channels." (Id. at pp. 12-13, footnote omitted.) The result was a "closed
regulatory system making it unlawful to manufacture, distribute, dispense,
or possess" marijuana and other Schedule I controlled substances. (Id. at p.
13.) Indeed, by classifying marijuana as a Schedule I drug, Congress
concluded that it had no "accepted medical use" (id. at p. 14) -- a
conclusion that, under the Supremacy Clause, is binding on California.
Given these broad purposes, the CSA, in the words of section 903,
"cannot consistently stand together" with any state law that requires
municipalities to permit medical marijuana dispensaries to operate. There
is a "positive conflict" between state and federal law: The CSA expressly
forbids the distribution of marijuana, medical or otherwise (21 U.S.C.
841 subd. (a)(l), subd. 844(a, while the DPA, CUA and the MMPA
require, in Appellants' view, that the City of Anaheim allow marijuana
cultivation and distribution by permitting dispensaries to operate. State
law, as Appellants urge this Court to view it, undermines the core purposes
conquering marijuana's abuse and traffic via a closed regulatory system of
federallaw.
6
Obstacle preemption is the inevitable result. (See, e.g., Gade,
supra, 505 U.S. at p. 105 ["'[aJny state legislation which frustrates the full
6State law must be evaluated for preemption purposes based not just on its
purpose, but on its '''actual eiIcc!'" as well. (Gade v. National Solid
Wastes Management Assn. (1992) 505 U.S. 88, 105.)
-32-
effectiveness of federal law is rendered invalid by the Supremacy Clause, '"
quoting Perez v. Campbell (1971) 402 U.S. 637, 651-652).
In Barnett Bank a/Marion County v. Nelson (1996) 517 U.S. 25, 27,
the unanimous Court considered "whether a federal statute that permits
national banks to sell insurance in small towns pre-empts a state statute that
forbids them to do so." Just as in this case one could in theory comply with
both federal and state law simultaneously by not opening a medical
marijuana dispensary, so too in Barnett Bank, the Court noted, one could
comply with both statutes by not selling insurance. (Id. at p. 31.)
Nonetheless, the Court held, obstacle preemption easily covered the case.
Because the Federal Statute authorizes national banks to engage in
activities that the State Statute expressly forbids[,J the State's prohibition
[of those activities] would seem to stan[ d) as an obstacle to the
accomplishment of one of the Federal Statute's purposes .... " (Ibid.)
Michigan Canners & Freezers Assn. v. Agricultural Marketing &
Bargaining Bd. (1984) 467 U.S. 461, is similarly on point. The federal
Agricultural Fair Practices Act prohibited food producers' associations
from interfering with a particular producer's "freedom to choose whether to
bring his products to market himself or to sell them through a producers'
cooperative association." (Id. at p. 464.) State law, by contrast, permitted
producers' associations, under certain conditions, to serve as the exclusive,
binding bargaining agent for all producers of a particular commodity. (Id.
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at pp. 466-468.) To be sure, the unanimous Court noted, "this is not a case
in which it is impossible for an individual to comply with both state and
federal law." (ld. at p. 478, tn. 21). After all, while producers' associations
could apply to serve as the exclusive bargaining agents, they did not have
to; they could leave individual producers free to sell on their own, as
federal law required. (Jd. at p. 478.) But that was not enough to overcome
obstacle preemption. The trouble was, once again, that the state statute
empowered "producers' associations to do precisely what the federal Act
forbids them to do." (ld. at pp. 477-478.) As a result of this logical
contradiction between federal and state law, state law had to step aside
because it stood '''as an obstacle to the [J accomplishment and execution of
the full purposes and objectives of Congress. '" (ld. at p. 478, quoting
Hines, supra, 312 U.S. atp. 67.)
So too, here, State law, as Appellants read it, logically contradicts
federal law . It commandeers municipalities and requires them "to do
precisely what the federal Act forbids", namely, allow medical marijuana
cultivation and distribution operations, even though federal law does not
recognize medical marijuana and prohibits the very cultivation and
distribution of marijuana that dispensaries are designed to facilitate. By
requiring municipalities such as the City of Anaheim to authorize these
marijuana cultivation and distribution operations under the DP A, CUA and
MMP, California would be undermining the purposes and objectives of the
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CSA in precisely the same way that Michigan undermined the Agricultural
Fair Practices Act in Michigan Canners. Indeed, requiring municipalities
to permit medical marijuana dispensaries would affirmatively promote the
use and potential proliferation of marijuana, the very thing the CSA wishes
to prevent.
Nash v. Florida Industrial Com. (1967) 389 U.S. 235 further
illustrates this principle. The National Labor Relations Act provided for the
National Labor Relations Board to conduct unfair labor practice
proceedings. Florida law, meanwhile, barred those unemployed as a result
of a labor dispute from receiving unemployment benefits. Although one
could comply with both federal and state law by not filing a labor
complaint, the Florida law was preempted, the Court held, because "it
appears obvious to us that this financial burden which Florida imposes will
impede resort to the Act and thwart congressional reliance on individual
action. A national system for the implementation of the country's labor
policies is not so dependent on state law. Florida should not be permitted
to defeat or handicap a valid national objective .... " (Id. at p. 239.)
Again, that is the case here. California is not permitted to defeat or
limit a valid national objective of having a closed system for controlling
and preventing the distribution of marijuana by requiring municipalities to
have medical marijuana cultivation or distribution facilities.
Drawing on Barnett Bank and Michigan Canners, the Oregon
-35-
Supreme Court has embraced this obstacle preemption analysis. In so
doing, it emphasized the distinction between state laws that exempt the use
of medical marijuana from criminal liability and state laws that
affirmatively authorize the use of medical marijuana. (Emerald Steel,
supra, 230 P.3d at pp. 527-533.) A state is free to alter its criminal law as it
sees fit, the court correctly noted, because Congress may not commandeer
state legislatures, forcing them to enact particular laws. (See New York v.
United States (1992) 505 U.S. 144.) At the same time, the court wrote, if a
state goes beyond creating a new affirmative defense or decriminalization,
but also authorizes particular conduct, Congress has the authority to
preempt that authorization in order to achieve a particular policy objective.
(Emerald Steel at 230 P.3d at pp. 533-534; see also New York v. United
States, supra, 505 U.S. at p. 168 [the view taken by state legislatures "can
always be preempted under the Supremacy Clause if it is contrary to the
national view, but in such a case it is the Federal Government that makes
the decision in full view of the public, and it will be federal officials that
sutTer the consequences if the decision turns out to be detrimental or
unpopular"].) Drawing on this distinction, the Oregon Supreme Court held
that employers need not accommodate medical marijuana use, even though
state law requires it, because state law that in any way authorizes, as
opposed to merely decriminalizes, marijuana use is preempted because it
frustrates the purposes of the CSA.
-36-
In this case, requiring the City of Anaheim to allow medical
marijuana cultivation and distribution goes well beyond creating an
exception to the State's criminal law: It affirmatively authorizes and
facilitates the distribution and use of marijuana and so stands as an obstacle
to achievement of Congress' clear and ambitious goals in the CSA. There
is consequently a "positive conflict" between the CSA on the one hand and
the DPA, CUA and MMP on the other. To the extent that the DPA, CUA
and the MMP A require the City of Anaheim to permit medical marijuana
cultivation or distribution, state and federal law "cannot consistently stand
together." (21 U.S.C. 903.) Indeed, Government Code section 37100
expressly recognizes federal supremacy over land use regulation.
Amicus curiae submits that the only way to avoid a construction of
the DPA, MMP and CUA that is at odds with the Supremacy Clause of the
federal Constitution is to construe it consistent with its plain language,
legislative history and the longstanding deference to municipal control of
land use - as allowing municipalities the ability to regulate, including ban,
medical marijuana dispensaries.
E. CONCLUSION
This court should affinn the decision of the lower court, which held
that the Compassionate Use Act, Medical Marijuana Program Act,
Americans with Disabilities Act and the Disabled Persons Act do not
preempt the City of Anaheim's regulations on medical marijuana
-37-
operations.
Dated: October 16, 2013 BEST BEST & KRIEGER LLP
-38-
CERTIFICATE OF WORD COUNT
I certify that the text of this brief consists of 10,131 words as
counted by the Microsoft Word word-processing program used to generate
the brief.
Dated: October 16, 2013
-39-
55402.00021 \83308J4.2
BEST BEST & KRIEGER LLP
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PROOF OF SERVICE
At the time of service I was over 18 years of age and not a party to this action. My
business address is 18101 Von Karman Avenue, Suite 1000, Irvine, California 92612. On
October 16, 2013, I served the following document(s):
APPLICATION OF THE CITY OF RIVERSIDE TO FILE
AMICUS BRIEF IN SUPPORT OF RESPONDENT CITY OF
ANAHEIM; PROPOSED BRIEF OF AMICUS CURIAE
D By fax transmission. Based on an agreement of the parties to accept service by
fax transmission, I faxed the documents to the persons at the fax numbers listed
below. No error was reported by the fax machine that I used. A copy of the record
of the fax transmission, which I printed out, is attached.
By United States mail. I enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses listed below (specify one):
D Deposited the sealed envelope with the United States Postal Service, with
the postage fully prepaid.
Placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with this business's practice for
collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a
sealed envelope with postage fully prepaid.
I am a resident or employed in the county where the mailing occurred. The
envelope or package was placed in the mail at Irvine, California.
D By personal service. At __ a.m./p.m., I personally delivered the documents to
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attorney, delivery was made to the attorney or at the attorney's office by leaving the
documents in an envelope or package clearly labeled to identify the attorney being
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D By messenger service. I served the documents by placing them in an envelope or
package addressed to the persons at the addresses listed below and providing them
to a professional messenger service for service. A Declaration of Messenger is
attached.
5540200021\83357871
PROOF OF SERVICE
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provided by an overnight delivery carrier and addressed to the persons at the
addresses listed below. [ placed the envelopc or package for collection and
overnight delivery at an office or a regularly utilized drop box of the overnight
delivery carrier.
o Bye-mail or electronic transmission. Based on a court order or an agreement of
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other indication that the transmission was unsuccessful.
Matthew Pappas, Esq.
22762 Aspan St., #202-107
Lake Forest, CA 92630
Moses W. Johnson
Anaheim City Attorney
200 S. Anaheim Blvd., Ste. 356
Anaheim,. CA 92805
Hon. James David Chaffee
Orange County Superior Court
700 Civic Center Drive West
Santa Ana, CA 92701
Gregory P. Priamos
Neil Okazaki
Office of the City Attorney
3900 Main St., 5th Floor
Riverside, CA 92522
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Executed on October 16, 2013, at Irvine, California.
Kerry V Keefe
55402.00021 \8335787.1
- 2 -
PROOF OF SERV1CE