Friday, August 24, 2012
My loyal readers will recall a post that I wrote in January of this year, entitled "Turd Stew Clarity on the Way?". In it, I optimistically wondered aloud whether or not our court system would soon grace us with some clarity on California's medical marijuana laws and the myriad issues surrounding their implementation. So far, the answer has been a resounding "no".
It remains the position of this blog that marijuana prohibition causes more harm than the drug itself. The plant is safer than Tylenol, for christsakes. All logic aside, however, the War on Drugs continues. California's medical marijuana dispensaries have become the latest battleground in this war.
As discussed in prior posts, one major issue that cities and counties have grappled with is how to regulate and control the proliferation of storefront marijuana shops that have sprung up in residential communities, near schools and in concentrations thick enough to blight entire neighborhoods. Towns across California have tried a variety of strategies: arresting operators and accusing them of illegal drug sales, using municipal ordinances to ban dispensaries from all or parts of the city, using code enforcement actions to shut down offenders, and even requesting DEA assistance.
Long Beach had a unique approach to regulating the proliferation of dispensaries. It used a lottery system, whereby hopeful operators paid astronomical fees for the privilege of the application. 15 lucky winners of the lottery were granted licenses to operate storefront dispensaries in the city. A fellow named Pack who did not win a license (and was, therefore, barred from operating a dispensary within the city), sued Long Beach, claiming that their licensing system was illegal and was preempted by federal laws. Federal law flatly criminalizes any marijuana use or sale and trumps any inconsistent state or local laws. Since Long Beach's licensing system essentially granted permission for 15 operators to violate federal laws, the entire licensing system was found to be void by an appellate court.
Think about what that means: since marijuana is illegal federally, cities may not attempt to regulate the proliferation of storefront pot shops (what?). Pot-friendly cities may simply decide not to devote city resources, i.e. police, to shutting the clubs down, thereby creating a de facto local "legalization", or else they may ban clubs entirely, but they may not place restrictions on the clubs, and they definitely can't issue licenses.
As the Pack case slowly wound its way through the courts, the City of Long Beach replaced its licencing system with a flat prohibition on all storefront marijuana dispensaries. By the time the case finally reached the CA Supreme Court this week, the entire issue was moot because the law in question no longer exists. No sense in arguing about something that doesn't exist anymore. Case dismissed.
So where does this leave us? On first glace, you'd be tempted to say that the appellate decision stands and that cities may not attempt to regulate the proliferation of storefront pot shops (what I call "the all-or-nothing approach"). But, like most things in the law, it's more complicated than that. See, a legal case can only be cited to as a precedent if the case has been ordered "published". "Unpublished" cases have no value as precedent and cannot be cited to in future cases. The appellate decision in Pack was briefly published, but it automatically became unpublished by operation of law when the Supreme Court decided to hear it. After the SC rendered its decision to throw out the case entirely, it never specifically ordered that the appellate decision be re-published. That appellate decision, therefore, has exactly zero value as a precedent today and cannot be cited to.
...and so we're right back where we started, just looking down at this steaming bowl of turd stew that we didn't order.