Anaheim case may play key role in regulating medical marijuana

A state appeals court appears likely to grapple with the dispute over whether cities and counties can prohibit medical marijuana dispensaries as it reviews a lawsuit challenging Anaheim’s ban, a case that could have a major impact on how the drug is distributed throughout California.

On Monday, the day before their decision was due, judges in the Santa Ana-based appellate court asked the lawyers involved in the case for more information on what the Legislature intended when it wrote the 2003 medical marijuana law.

The law was meant to clear up how marijuana could be provided, but it has spawned considerable confusion.

Numerous lawsuits have been filed to try to resolve murky issues, but the Anaheim case is one of the most closely watched because the outcome could inspire more bans or threaten existing ones. About 130 cities and counties have adopted bans that outlaw storefront medical marijuana dispensaries.

Monday’s appellate court action means a decision could be months away, but both sides agreed that it appears the court intends to address at least some key issues rather than simply send the case back to Superior Court for a trial.

“I think that they’re leaning toward ruling on the merits of the case,” said Anthony Curiale, the lawyer for Qualified Patients Assn., which sued Anaheim to overturn its 2007 ban.

On Wednesday, the state Supreme Court declined to hear another appeal Curiale filed that raised similar issues.

In that case, South Coast Patients Collective Assn., a Cathedral City dispensary, asked the state’s high court to overturn an injunction that forced it to shut down. Cathedral City has banned dispensaries. The case has not yet come to trial in Superior Court.

“So far, the courts have said they are not going to allow the continued illegal operation of this business while this is working its way through the court system,” said Joan Smyth, the deputy city attorney.

Curiale said he was not surprised the Supreme Court decided not to hear the appeal. “We took our shot. We thought the issue might be ripe. It’s a juicy issue. But they are going to let it percolate up,” he said.

In the Anaheim case, the court has asked the lawyers to file briefs on a quirk in the medical marijuana law. The law protects collectives from being charged with a list of specific drug crimes. Included in that list is using a building to sell, store or manufacture a controlled substance. Under state law, however, that is not a crime, it is a nuisance.

The court, puzzled as to why it was included in the law, asked the attorneys to file briefs on whether legislators meant to preempt local ordinances that criminalize medical marijuana activities or whether they meant something else.

Moses W. Johnson IV, an assistant Anaheim city attorney, said the court could choose to invalidate the provision that makes it a misdemeanor to operate a dispensary and still uphold the city’s ban.

But Johnson agreed that it appears the court may be preparing to use the case to address whether cities and counties can enact bans. “It’s the only appellate case that I know of that specifically deals with the issue,” he said.

Curiale said he could not predict what the court would decide, but expressed optimism that the action might be an indication that Anaheim’s ban could be overturned.

“I don’t think the court is going to go so far as to say the city can gut the medical marijuana act,” he said.

“It’s like killing a fly with a shotgun, and that’s what the cities are trying to do with their ordinances, and I don’t think the courts are going to allow them to do that.”