James v. City of Costa Mesa, 10–55769.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 700 F.3d 394
• Docket Number: No. 10–55769.,10–55769.
• Parties: Marla JAMES; Wayne Washington; James Armantrout; Charles Daniel Dejong, Plaintiffs–Appellants, v. CITY OF COSTA MESA, a city incorporated under the laws of the State of California; City of Lake Forest, a city incorporated under the laws of the State of California, Defendants–Appellees.
• Decision Date: 01 November 2012

700 F.3d 394

46 NDLR P 67
12 Cal. Daily Op. Serv. 12,419
2012 Daily Journal D.A.R. 15,154

Marla JAMES; Wayne Washington; James Armantrout; Charles Daniel Dejong, Plaintiffs–Appellants,
v.
CITY OF COSTA MESA, a city incorporated under the laws of the State of California; City of Lake Forest, a city incorporated under the laws of the State of California, Defendants–Appellees.

No. 10–55769.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted May 6, 2011.
Filed May 21, 2012.
Amended Nov. 1, 2012.

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Matthew Pappas, Law Office of Matthew Pappas, Mission Viejo, CA, for the appellants.

James R. Touchstone and Krista MacNevin Jee, Jones & Meyer, Fullerton, CA, for appellee City of Costa Mesa.

Jeffrey V. Dunn (argued), Daniel S. Roberts and Lee Ann Meyer, Best Best & Krieger LLP, Irvine, CA, for appellee City of Lake Forest.

Thomas E. Perez and Tony West, Assistant Attorneys General, and Mark L. Gross and Roscoe Jones, Jr., Attorneys, Department of Justice, Washington, D.C., for the United States as amicus curiae.

Appeal from the United States District Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding. D.C. No. 8:10–cv–00402–AG–MLG.
Before: HARRY PREGERSON, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge BERZON.

ORDER

Judge Pregerson and Judge Fisher have voted to deny the petition for rehearing and rehearing en banc. Judge Berzon has

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voted to grant the petition for rehearing and rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellants' petition for rehearing and rehearing en banc, filed June 4, 2012, is DENIED.

The amended opinion and amended partial concurrence/partial dissent filed May 21, 2012, will be filed concurrently with this order.

No further petitions for rehearing will be considered.

OPINION FISHER, Circuit Judge:

The plaintiffs are severely disabled California residents. They alleged that “[c]onventional medical services, drugs and medications” have not alleviated the pain caused by their impairments. Each of them has therefore “obtained a recommendation from a medical doctor” to use marijuana to treat her pain. This medical marijuana use is permissible under California law, seeCal. Health & Safety Code § 11362.5(d) (suspending state-law penalties for marijuana possession and cultivation for seriously ill Californians and their caregivers who “possess[ ] or cultivate[ ] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician”), but prohibited by the federal Controlled Substances Act (CSA), see21 U.S.C. §§ 812(b)(1)(B), 812(c) sched. I(c)(10), 841(a), 844(a).

The plaintiffs obtain medical marijuana through collectives located in Costa Mesa and Lake Forest, California. These cities, however, have taken steps to close marijuana dispensing facilities operating within their boundaries. Costa Mesa adopted an ordinance excluding medical marijuana dispensaries completely in 2005. See Costa Mesa, Cal., Ordinance 05–11 (July 19, 2005). Some marijuana dispensing facilities, including the Costa Mesa collectives, have apparently continued to operate despite the ordinance, but the plaintiffs alleged that Costa Mesa police have recently “raided operating marijuana collectives and detained collective members.” ¹ Lake Forest has also allegedly raided medical marijuana collectives operating within city limits, and has brought a public nuisance action in state court seeking to close them. See City of Lake Forest v. Moen, No. 30–2009–298887 (Orange Cnty. Super. Ct. filed Sept. 1, 2009).

Concerned about the possible shutdown of the collectives they rely on to obtain medical marijuana, the plaintiffs brought this action in federal district court, alleging that the cities' actions violate Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination in the provision of public services.² District Judge

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Guilford sympathized with the plaintiffs, but denied their application for preliminary injunctive relief on the ground that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.

We affirm. We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs' medical marijuana use. We therefore necessarily conclude that the plaintiffs' medical marijuana use is not protected by the ADA.³

Discussion

Title II of the ADA prohibits public entities from denying the benefit of public services to any “qualified individual with a disability.” 42 U.S.C. § 12132.⁴ The plaintiffs alleged that, by interfering with their access to the medical marijuana they use to manage their impairments, Costa Mesa and Lake Forest have effectively prevented them from accessing public services, in violation of Title II. As the district court recognized, however, the ADA also provides that “the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Id. § 12210(a). This case turns on whether the plaintiffs' medical marijuana use constitutes “illegal use of drugs” under § 12210.⁵

Section 12210(d)(1) defines “illegal use of drugs” as

the use of drugs, the possession or distribution of which is unlawful under the

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Controlled Substances Act. 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. § 12210(d)(1). The parties agree that the possession and distribution of marijuana, even for medical purposes, is generally unlawful under the CSA, and thus that medical marijuana use falls within the exclusion set forth in § 12210(d)(1)'s first sentence. They dispute, however, whether medical marijuana use is covered by one of the exceptions in the second sentence of § 12210(d)(1). The plaintiffs contend their medical marijuana use falls within the exception for drug use supervised by a licensed health care professional. They alternatively argue that the exception for drug use “authorized by ... other provisions of Federal law” applies. We consider each argument in turn.

I.

We first decide whether the plaintiffs' marijuana use falls within § 12210' s supervised use exception.

There are two reasonable interpretations of § 12210(d)(1)'s language excepting from the illegal drug exclusion “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.” The first interpretation—urged by the plaintiffs—is that this language creates two exceptions to the illegal drug exclusion: (1) an exception for professionally supervised drug use carried out under any legal authority; and (2) an independent exception for drug use authorized by the CSA or other provisions of federal law. The second interpretation—offered by the cities and adopted by the district court—is that the provision contains a single exception covering all uses authorized by the CSA or other provisions of federal law, including both CSA-authorized uses that involve professional supervision (such as use of controlled substances by prescription, as authorized by 21 U.S.C. § 829, and uses of controlled substances in connection with research and experimentation, as authorized by 21 U.S.C. § 823(f)), and other CSA-authorized uses. Under the plaintiffs' interpretation, their state-sanctioned, doctor-recommended marijuana use is covered under the supervised use exception. Under the cities' interpretation, the plaintiffs' state-authorized medical marijuana use is not covered by any exception because it is not authorized by the CSA or another provision of federal law. Although § 12210(d)(1)'s language lacks a plain meaning and its legislative history is not conclusive, we hold, in light of the text and legislative history of the ADA, as well as the relationship between the ADA and the CSA, that the cities' interpretation is correct.

The meaning of § 12210(d)(1) cannot be discerned from the text alone. Both interpretations of the provision are somewhat problematic. The cities' reading of the statute renders the first clause in § 12210(d)(1)'s second sentence superfluous; if Congress had intended that the exception cover only uses authorized by the CSA and other provisions of federal law, it could have omitted the “taken under supervision” language altogether. But the plaintiffs' interpretation also fails to “giv[e] effect to each word” of § 12210(d)(1), United States v. Cabaccang, 332 F.3d 622, 627 (9th Cir.2003) (en banc), for if Congress had really intended that the language excepting “other uses authorized by the Controlled Substances Act or other provisions of Federal law” be entirely independent of the preceding supervised use language, it could have omitted the word “other,” thus excepting “use of a drug

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taken under supervision by a licensed health care professional, or uses authorized by the Controlled Substances Act.” Moreover, unless the word “other” is omitted, the plaintiffs' interpretation renders the statutory language outright awkward. One would...