Much-Awaited Appellate Decision on Medical Marijuana Dispensary Bans is a Non-Decision

Orange County cities and medical-marijuana dispensaries had been eagerly awaiting a decision from the California 4th District Court of Appeal on the constitutionality of municipal bans on cannabis clinics.

That decision is now in . . .

. . . and it's pretty much a non-decision.

The appellate court's opinion "leaves things just as unclear as they were yesterday," Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego, tells the Associated Press.

That's because the justices on Wednesday kicked the case back down to an Orange County trial judge to decide if cities can prohibit dispensaries.

The state appellate panel ruled the lower court hadn't addressed if local laws can trump the state's provisions under Prop 215, the landmark voter initiative that legalized medical marijuana, and subsequent pot laws.

"As anxious as we, the parties, and amici curiae are to reach this important and interesting question of state preemption, this case in its present posture is not the occasion to do so," the court wrote.

That case is a 2007 lawsuit the Qualified Patients Association brought against the City of Anaheim for prohibiting dispensaries.

The cannabis patients' group argued the ban conflicts with state law and violates the civil rights of disabled people. Anaheim's lawyers countered the city has the right to regulate what businesses should be permitted in town.

Both sides found something to like in the appellate ruling.

The city's ordinance was found not to have violated California's Unruh (Civil Rights) Act.

However, the panel said the lower court erred in siding with the city's contention that federal law preempts state law. Federal law still prohibits marijuana possession despite the state's legalization of medical cannabis.

The lower court should have disagreed with the fed-trumps-state assessment and found local officials should uphold state law, the justices wrote.

An attorney for the city expressed disappointment with that finding by the appellate court.

Tony Curiale, an attorney who represents the patients' group in the lawsuit, was the opposite of disappointed in his remarks to the AP.

"This was a major argument cities have been making,"  he said. "Cities are now going to have to use state grounds for banning distribution of medical marijuana and can no longer use federal preemption arguments."

However, an ultimate decision on dispensary bans will still take some time to come, according to Kreit.

Murky days are here again. Still.


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