Pack v. Superior Court of L. A. Cnty.

Decision Date04 October 2011
Docket NumberNo. B228781.,B228781.
Citation132 Cal.Rptr.3d 633
CourtCalifornia Court of Appeals Court of Appeals
Parties Ryan PACK et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; City of Long Beach, Real Party in Interest.

Matthew S. Pappas, Mission Viejo, for Petitioners.

Scott Michelman, Michael T. Risher and M. Allen Hopper (N. California), Peter Bibring (S.California), and David Blair–Loy (San Diego & Imperial Counties) for American Civil Liberties Union as Amici Curiae on behalf of Petitioners.

Daniel Abrahamson, Theshia Naidoo and Tamar Todd for Drug Policy Alliance as Amicus Curiae on behalf of Petitioners.

Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Robert E. Shannon, City Attorney (Long Beach), Monte H. Machit, Principal Deputy City Attorney, Theodore B. Zinger and Cristyl A. Meyers, Deputy City Attorneys, for Real Party in Interest.

Carmen A. Trutanich, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, and Heather Aubry, Deputy City Attorney, for Los Angeles City Attorney's Office as Amicus Curiae on behalf of Real Party in Interest.

William James Murphy, County Counsel (Tehama), and Arthur J. Wylene, Assistant County Counsel, for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Real Party in Interest.


Federal law prohibits the possession and distribution of marijuana ( 21 U.S.C. §§ 812, 841(a)(1), 844 ); there is no exception for medical marijuana. (United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 490, 121 S.Ct. 1711, 149 L.Ed.2d 722.) Although California criminalizes the possession and cultivation of marijuana generally ( Health & Saf.Code, §§ 11357, 11358 ), it has decriminalized the possession and cultivation of medical marijuana, when done pursuant to a physician's recommendation. ( Health & Saf.Code, § 11362.5, subd. (d).) Further, California law decriminalizes the collective or cooperative cultivation of medical marijuana. ( Health & Saf.Code, § 11362.775.) Case law has concluded that California's statutes are not preempted by federal law, as they seek only to decriminalize certain conduct for the purposes of state law. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 757, 115 Cal.Rptr.3d 89.)

In this case, we are concerned with a city ordinance which goes beyond simple decriminalization. The City of Long Beach (City) has enacted a comprehensive regulatory scheme by which medical marijuana collectives within the City are governed. The City charges application fees (Long Beach Mun.Code, ch. 5.87, § 5.87.030), holds a lottery, and issues a limited number of permits. Permitted collectives, which must then pay an annual fee, are highly regulated, and subject to numerous restrictions on their operation (Long Beach Mun.Code, ch. 5.87, § 5.87.040). The question presented by this case is whether the City's ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law. In this case of first impression, we conclude that, to the extent it permits collectives, it is.


Before addressing the specific factual and procedural background of this case, we first discuss the contradictory federal and state statutory schemes which govern medical marijuana. This case concerns the interplay between the federal Controlled Substances Act (CSA), and the state Compassionate Use Act (CUA) and Medical Marijuana Program Act (MMPA).

1. The Federal CSA

"Enacted in 1970 with the main objectives of combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances, the CSA creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the Act's five schedules." (Gonzales v. Oregon (2006) 546 U.S. 243, 250, 126 S.Ct. 904, 163 L.Ed.2d 748.) Enactment of the federal CSA was part of President Nixon's "war on drugs."

(Gonzales v. Raich (2005) 545 U.S. 1, 10, 125 S.Ct. 2195, 162 L.Ed.2d 1.) "Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels." (Id. at pp. 12–13, 125 S.Ct. 2195.)

The federal CSA includes marijuana1 on schedule I, the schedule of controlled substances which are subject to the most restrictions. ( 21 U.S.C. § 812.) Drugs on other schedules may be dispensed and prescribed for medical use; drugs on schedule I may not. (United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at p. 491, 121 S.Ct. 1711.) The inclusion of marijuana on schedule I reflects a government determination that "marijuana has ‘no currently accepted medical use’ at all." (Ibid. ) Therefore, the federal CSA makes it illegal to manufacture, distribute, or possess marijuana. ( 21 U.S.C. §§ 841, 844.) It is also illegal, under the federal CSA, to maintain any place for the purpose of manufacturing, distributing, or using any controlled substance. ( 21 U.S.C. § 856(a)(1).) The only exception to these prohibitions is the possession and use of marijuana in federally-approved research projects. (United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at pp. 489–490, 121 S.Ct. 1711.)

The federal CSA contains a provision setting forth the extent to which it preempts other laws. It provides: "No provision of this subchapter shall be construed as indicating an intent 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 conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." ( 21 U.S.C. § 903.) The precise scope of this provision is a matter of dispute in this case.

2. The CUA

While the federal government, by classifying marijuana as a schedule I drug, has concluded that marijuana has no currently accepted medical use, there is substantial debate on the issue. (See Conant v. Walters (9th Cir.2002) 309 F.3d 629, 640–643 (conc. opn. of Kozinski, J.).) In 1996, California voters concluded that marijuana does have valid medical uses, and sought to decriminalize the medical use of marijuana by approving, by initiative measure, the CUA.

The CUA added section 11362.5 to the Health and Safety Code. Its purposes include: (1) "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief"; (2) "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction"; and (3) "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." ( Health & Saf.Code, § 11362.5, subds. (b)(1)(A), (b)(1)(B) & (b)(1)(C).)

To achieve these ends, the CUA provides, " Section 11357, relating to the possession of marijuana,2 and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver,3 who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." ( Health & Saf.Code, § 11362.5, subd. (d).) As noted above, this statute, which simply decriminalizes for the purposes of state law certain conduct related to medical marijuana, is not preempted by the CSA. (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at p. 757, 115 Cal.Rptr.3d 89.)

3. The MMPA

The MMPA was enacted by the Legislature in 2003. The purposes of the MMPA include: (1) to "[p]romote uniform and consistent application of the [CUA] among the counties within the state" and (2) to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats.2003, ch. 875 (S.B.420), § 1, subds. (b)(2) & (b)(3).) The MMPA contains several provisions intended to meet these purposes.

First, the MMPA expands the immunities provided by the CUA. While the CUA decriminalizes the cultivation and possession of medical marijuana by patients and their primary caregivers,4 the MMPA extends that decriminalization to possession for sale, transportation, sale, maintaining a place for sale or use, and other offenses. Cultivation or distribution for profit, however, is still prohibited. ( Health & Saf.Code, § 11362.765.)

Second, while the CUA provides a defense at trial for those medical marijuana patients and their caregivers charged with the illegal possession or cultivation of marijuana, it provides for no immunity from arrest . (People v. Mower (2002) 28 Cal.4th 457, 469, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) The MMPA provides that immunity by means of a voluntary identification card system. Individuals with physician recommendations for marijuana, and their designated primary caregivers, may obtain identification cards identifying them as such.5 Under the MMPA, no person in possession of a valid identification card shall be subject to arrest for enumerated marijuana offenses. However, a person need not have an identification card to claim the protections from the criminal laws provided by the CUA. ( Health & Saf.Code, § 11362.71.)


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