Pack Pot Case Tossed – September 16, 2012

Sunday, September 16, 2012

Daniel Mintz

Eye Correspondent

CALIFORNIA – The state’s Supreme Court has dismissed a Court of Appeals case that has influenced local moratoriums on medical marijuana dispensaries.

When the appellate court ruled last year that the City of Long Beach’s dispensary ordinance was inapplicable because it violates federal law, local governments – including Arcata’s – backed off of medical marijuana dispensary permitting and stopped processing new dispensary applications.

The state’s Supreme Court had accepted the appellate court case – known as the Pack decision – for review last January but on Aug. 22 issued an order to dismiss it. The Supreme Court’s dismissal order states that since Long Beach has repealed the ordinance that brought the case forward and the plaintiffs “abandoned their federal pre-emption argument,” there is no need for review.

A prevailing legal interpretation is that the Pack decision will not be published and does not establish legal precedent. In a press release from the Americans for Safe Access (ASA) medical marijuana advocacy group, the Supreme Court’s action is described as a game-changer.

“The court has pulled out the rug from under local officials who have used the Pack decision to deny access to thousands of qualified patients across the state,” said Joe Elford, ASA’s chief counsel, in the release.

Last May, the Arcata City Council approved a 22-month, 15-day moratorium on processing new and pending dispensary applications. “Pack was really important because it was the decision to address federal pre-emption,” said City Attorney Nancy Diamond, but she added that there are other factors.

The state’s attorney general has suspended the drafting of guidelines for local governments due to numerous legal circumstances and federal prosecution has become more aggressive. Federal officials verbally informed Arcata that its dispensary permitting violated federal law, said Diamond.

It’s “too early to say” how Pack’s dismissal will affect the Arcata moratorium, she continued. There are cases before the Supreme Court addressing the issue of state pre-emption – whether California’s medical marijuana laws trump local regulations – and Diamond said subsequent rulings might “give us an indication of how to analyze federal pre-emption.”


“My strategy is to continue to wait and evaluate all these components until there’s more stability in the legal landscape,” she said.

The county’s Board of Supervisors declined to include dispensary aspects in its indoor medical marijuana ordinance last November and instead directed staff to prepare a 45-day moratorium on dispensary applications. The moratorium was later approved and an extension holds it in effect until mid-November of this year.

At the time, Deputy County Counsel Davina Smith told supervisors the Pack decision “kind of dropped the bomb on everyone” and a Supreme Court affirmation of it could make it impossible for dispensaries to continue operating.

Interviewed last week, Smith said the dismissal of the Pack case is still being evaluated by county staff. But she said it appears that the Pack appellate ruling no longer binds local governments.

Other circumstances that affected the county’s moratorium, such as the potential for federal enforcement actions and the pending Supreme Court cases, are still relevant, she added.

“These are all factors we’re evaluating, along with what the dismissal of the Pack case means to the moratorium,” she continued.

Had the Supreme Court gone ahead with a review of Pack case, legal precedent would have been set on the question of federal pre-emption, providing guidance to local governments.

Both Smith and Diamond said it’s disappointing that the Supreme Court hasn’t delivered clarification on the issue of federal pre-emption.

“The legal precedent is gone but the fundamental question hasn’t been answered,” said County Supervisor Mark Lovelace, who co-chairs the California State Association of Counties committee on medical marijuana. “We no longer have an affirmative decision saying we can’t permit (dispensaries) but we don’t have a decision saying that we can.”

Asked if the dismissal will affect the county’s moratorium extension, Lovelace said, “We could certainly revisit that.”

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