Hearing Today, Ganja Tomorrow: Dueling Courts and the Medical Cannabis Dispensary 030712
Making the case that being a judge gets you more befuddled than smoking cannabis; but is this a new life for the Sattley Cash Store?
When significant social change comes, it often makes its appearance first along the boundaries, or “fringes” and next it appears in a substantial portion of the population as changes in behavior and attitude, and then as destabilization in entrenched institutions, such as government, as they catch up with the changes. Institutions are not abstract concepts, nor concrete capitols or courthouses, but are patterns of behavior of both those who work embedded in the bureaucracy of the institution and those who support it by interacting with it (even if unwillingly. When too much conflict is present, the institution will often show strain before arriving at a configuration which accommodates the social change. “Dueling court judges” is an example of the kind of disharmony which institutions display prior to change.
On to the fun part.
Can a city zone pharmacies so that they don’t fall within 1000 feet of a school, playground, swimming pool, library, park or other place where that problematic class of persons, children, gather? Yes, they can, though a search on the internet found no such laws. Could a city council of Christian Scientists decide to zone pharmacies out of the city entirely? It is very unlikely.
That’s the point of the argument over the rights of cities and counties to prevent medical marijuana dispensaries.
The feds, of course, continue to consider cannabis a schedule I drug with no medical purpose; as a result, and because of other curious readings of the law, the Supremes have declared that federal judges can’t consider the efficacy of medical cannabis when making rulings. Rephrase: “Maybe it does work, but that’s not a reason to allow people to use it.” Likewise, the courts are relieved of the burden of comparing the safety of cannabis to pharmaceuticals which they replace. Use oxycodone, but don’t eat marijuana brownies.
But, in California and 15 other states, the people have decided to over-rule the government and allow people to treat their medical problems as works best for them. That kind of social change takes time.
That’s why, within the state, there are stresses of the process, as rednecks and fundamentalists of every stripe struggle to keep cannabis taboo, medical cannabis entrepreneurs struggle to patent their business models and keep cannabis out of 7-11s, illegal growers struggle to keep cannabis illegal, and civil libertarian and Jeffersonian patriots struggle to take the entire plant out of government hands. Candidly, for a sociologist, it’s like watching five kinds of ants fight over a gum drop.
Resistance from the old guard, from people who know what is right and what is wrong in a way that science and logic and compassion can’t touch, takes the form of using the power of local government to keep the pot lepers outside the gate, so to speak.
In response to attempts to zone dispensaries or block them altogether, lawsuits have been filed by dispensaries and patients. A leading resistor in the move to allow safe access for medcan patients, San Diego is a nexus both for legal action and federal intervention. The second largest city in California, San Diego borders with Mexico, and makes good money busting drug smugglers. It is also held in thrall to the U.S. Military, which is a major economic and social presence in the area. San Diego is home to a submarine base and ship yards and is a nuclear rich county.
In 2009 San Diego tried to get the U.S. Supreme Court to affirm that federal law trumps state law, and the city didn’t have to take orders from voters, but the Supremes refused to hear the case, dealing the city a blow. Then, back in October a California Superior Court judge ruled that San Diego could prevent dispensaries from certain zones. In November a judge ruled that a SD landlord could evict a cannabis dispensary and declared that dispensaries are not legal anywhere in San Diego. In February, a judge ruled that San Diego didn’t have to provide dispensaries with business licenses because that would put San Diego city workers in violation of federal law, though it was a superior court judge, a state judge, who made the declaration. The fact that the judge ruled based on federal law and not California law might weaken that decision. San Diego had determined to create a medical marijuana ordinance, but medcan supporters qualified a referendum to force the city to allow dispensaries more broadly. Currently, San Diego continues to be anti-access, with the city attorney determined to uphold federal law and not California law and so federal attorneys and agents of the DEA are working hard in that fertile environment to close dispensaries, and indeed, a spokesperson for the feds has promised to close all the dispensaries in San Diego. There are currently about 200 dispensaries in San Diego, and an unknown number of delivery services which deliver to the hell hole city, but aren’t technically located there. They operate in a gray area, but are likely to increase in number as brick and mortar medcan dispensaries disappear.
More recently, Lake Forest (formerly El Toro, The Bull!) a city in Orange County with a planted forest and two artificial lakes, tried to zone cannabis dispensaries out altogether as nuisances. But a three judge appeals court handed down a surprisingly odd verdict. No, a city can’t zone all dispensaries from the city, that would essentially defeat the intention of the people and the legislature regarding access to medical cannabis. But, the judges said, the dispensary can only sell as much as it can grow. Right there, on the spot.
In short, the court attempted to cut diagonally across social tension by granting nothing to both sides.
The unintended consequence of such a cockeyed ruling will be mom and pop pot dispensaries who grow using hyper efficient hydro grow, harvesting every three months and planting a sea of bud clones, which stay short and produce bud only because they have ultra-bright lights and the perfect liquid diet. They will each serve a few patients, rather like the system we already have here in Sierra County, which seems to work well enough if you’re connected, but if you aren’t you could literally die before finding someone to provide medical quality cannabis.
The Lake Forest ruling enriches the confusion since last year an appellate court upheld Riverside’s right to close and prohibit dispensaries, and Long Beach was prevented by an appellate court from actually licensing dispensaries.
The totality of these rulings is a fibrous tumor in the legal body, a place where the law, which prides itself on bringing clarity to the muddle of human interaction, creates a maelstrom of confusion and doubt. Very ripe ground for social change.
The California Supreme Court has decided to hear a number of cases, but that is likely a year or more away. Until then, those cases which have been decided in lower courts and referred to the CSC are in a state of legal limbo, and can’t provide much guidance to local governments or patients.
The confusion is not limited to California, as Nevada recently experienced some conflicting court findings, as well. A state court judge there recently determined that the Nevada medcan distribution law is unconstitutional, and fails to provide what the voters mandated: a safe, legal way to obtain medical cannabis. The judge dropped the charges against patients charged with illegal distribution, and his ruling makes it much harder for Nevada cops to harass medical cannabis users. That decision, too, is likely to find its way to the Nevada Supreme Court.
The legal confusion in these states and others is partly due to conflict with the federal government, but partly due to resistance among elected and appointed officials to accept the voter mandate of 1996 or the legislative update in 2004 and simply allow access to med can. If Jan Goldsmith, city attorney for San Diego, and his ilk would attend state law, and respect the voice of California voters, the feds would find it much harder to ride roughshod over dispensaries. It is not certain what state supreme court decisions will mean against the mailed fist of the federal government, and there is a high likelihood that one of the 15 states allowing medical cannabis (I believe it will be Colorado) will legalize cannabis completely, setting the stage for a show down with the feds.
Will it be defused by swift and intelligent action by our congresspeople? Ha ha ha! It’s too late to be swift and too unlikely to be intelligent; congress is, after all, nothing more than a huge meeting, where “together we’re dumber than any of us alone”. The U.S. Supreme Court has already admonished congress to end the conflict.
I predict there will be more push back by the states, and the feds will be forced either to declare the 15 medcan states terrorist states and nuke us, or there will finally be a movement led by the executive branch for congress to legalize cannabis as a separate thing, not medicine, but not schedule I, and leave the matter to the states, except there will, of course, be a small 10% tax to the sovereign, like a cigarette tax.
In the meantime, it looks like cities have to allow medical cannabis dispensaries, but the ganja has to be grown on site. The old hotel in Loyalton is big enough, but it’s too close to a park, school, library or other site where ankle biters hang out. Maybe the Sattley Cash Store is large enough to grow some pot, bringing unaccustomed commerce to the little town.
Probably not, though! Let’s see what happens next!
“Uncle Sam in his misery put a nix on
the fields of Guerrero
Sayin', "Shoot down all gringos and wetbacks who dare wear sombreros!"
Either run for your life, surrender, or stand up and fight --
Or join the Free Mexican Air Force -- Mescalito riding his white horse --
Yeah, the Free Mexican Air Force is flying tonight!
It is not marijuana destroying the minds of the young
But confusion continued for power and greed in all forms
Well, the borders of evil will fall to the smugglers of light!
We're the Free Mexican Air Force and we're flyin' tonight!”
Free Mexican Air force, © Peter Rowan and Flaco Jiminez