Monday, January 6, 2014
Medical Marijuana Advocates Ask S.C. to Review Ruling
By a MetNews Staff Writer
A Northern California man, backed by advocates of medical marijuana use, Friday asked the state Supreme Court to review a ruling that allows cities to ban all cultivation of cannabis within their boundaries.
“The City [of Live Oak’s] Ordinance conflicts with and is, therefore, preempted by California law, which expressly authorizes qualified medical marijuana patients to cultivate marijuana for their personal medical use,” James Maral Jr. said in his petition.
Maral’s attorney Joe Elford filed the petition, and is being assisted by the pro-marijuana group California NORML, the organization said in a release. The high court is being asked to review Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, decided Nov. 26 by the Third District Court of Appeal.
Maral acknowledges that cities may ban the distribution of medical marijuana under an earlier decision, City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729. But he argues that the Court of Appeal erroneously relied on that ruling, and that cultivation is different that dispensing because it is specifically protected by statute.
The petition cites Proposition 215, the Compassionate Use Act, and the Medical Marijuana Program Act.
Maral contends that he suffers severe chronic medical problems. Because Live Oak bans both dispensing and cultivation, he argues, he has no legal access to the drug.
“Through a combination of their endorsement of local bans on medical marijuana dispensaries, and, most recently, a ban on personal medical marijuana cultivation, the California courts have ripped the heart out of the State’s medical marijuana laws,” the petition argues.
The petition cites the MMPA’s provision that individual patients may maintain six mature or 12 immature plants for their personal medical needs, and its provision that localities may adopt “medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth.”
Those sections “constitute a clear statement by the California Legislature that the State’s municipalities may expand upon the ‘safe-harbor’ provisions afforded to medical marijuana patients regarding cultivation, but they may not subvert or obliterate them,” the petition argues.
NORML said Maral is 42 and is the personal caregiver for his mother, who suffers from intestinal maladies.
Maral was quoted as saying:
“The only thing I’m fighting for is the patients who just want a couple of plants in their backyard. I’m not willing to let my mother die or live out the rest of her time in a hospital.”
The Marals live at least two hours away from any medical marijuana dispensary, the release said.
Other localities are moving aggressively against medical marijuana as a result of the Court of Appeal’s decision, as well as the Supreme Court’s earlier ruling, NORML said. It noted that Fresno County is set to consider a cultivation ban tomorrow night.
Live Oak, a rural city of 8,600, was one of the first municipalities in California to address the issue of medical marijuana cultivation when the council there unanimously passed the ordinance in 2011.
The council cited the potential for property damage and increased crime, the potential creation of a nuisance in the form of noxious odors, the inability of the state laws to prevent recreational use of marijuana under the guise of medical treatment, and the federal laws banning possession and cultivation of the drug.
Justice Elena Duarte, writing for the Court of Appeal, emphasized the limited nature of Proposition 215. While the law creates a medical-purposes defense to statutes criminalizing possession and cultivation of the drug, neither the CUA nor the MMPA, or any other law, creates a right to obtain the drug.
The petition filed Friday abandons arguments made before the Court of Appeal that the cultivation ban violates constitutional guarantees of due process and equal protection. Duarte said those arguments could not be considered because they failed to provide analysis or citation to authority.
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