Church May Be Barred From Furnishing Cannabis—C.A.
Contention Rejected That Injunction Intrudes Upon Exercise of Religion; Church Regards Marijuana As Sacrament
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has affirmed a permanent injunction barring a church from offering cannabis to its members except under narrow circumstances, rejecting the appellant’s contention that in supplying that substance to its members, it is providing a sacrament and that the exercise of its religion is being obstructed.
In the course of the opinion, authored by Justice Carol D. Codrington, it is posited that a trial brief is a “pleading” and that the failure to attach such a “pleading” to a motion to vacate a judgment based on the alleged excusable nature of a failure to appear at a hearing on a dispositive motion precludes relief.
The opinion, filed Sept. 13 and certified for publication on Wednesday, upholds a $50,000 award to the County of San Bernardino in attorney fees and costs. The award is against the Jah Healing Kemetic Temple of the Divine Church, Inc., in Big Bear City.
Also appealed was a 10-day jail sentence imposed on April Elizabeth Mancini, a minister of the church and its founder/owner, for contempt of court based on violating terms of a preliminary injunction. However, the appeals court dismissed that appeal on Aug. 14, 2020, based on a contempt order being nonappealable.
As construed by Div. Two, the injunction does permit the church to provide free cannabis to its members, but only for immediate use on the premises in connection with a religious ceremony.
Initially, the church had a cash register and a posted list of the prices for the various products it sold. However, in response to the preliminary injunction, it began offering marijuana to church members at no cost, but with a request for donations, and required new “members” who came to its premises to recite a prayer, which was videotaped, before being supplied with what the church denominates a “sacrament” and the county regards as contraband.
In its opening brief, the church explained:
“The Church is Christian in denomination and ardently believes that the fragrant cannabis ingredient is considered the ‘holy anointing oil’ described in Exodus 30:22 of the Old Testament. In early 2018, the Church ministers and congregation opened its house of worship as part of the Association of Sacramental Ministries (‘ASM’), an organization of churches that have cannabis as their central sacrament As a member of ASM, the Church is part of an organization that has an ecclesiastic form of government headed by a Board of Ministers. It has a central place of worship, ordained ministers, and many members who have the Church as their sole religion.”
“The Church provides regular services held on Sunday, weekly study and learning workshops, a distinct form of religious practice, literature about its belief and books of scripture….The County of San Bernardino acknowledges that the Church is ‘a non-profit religious corporation.’…County Code Enforcement’s investigation confirmed that the Church was a church ‘dispensing’ cannabis as a ‘sacrament.’…Ultimately, the Church has shown its religious beliefs are sincere and truly held.”
The brief notes:
“[T]he County alleged the church was a marijuana dispensary and sought to shut the church down actually or constructively by effectively terminating its right to engage in practices central to its religious beliefs…. As a result of the trial court’s order, since mid-2020, the Church has been shuddered [sic] and remains closed.”
The county’s argued in its brief that “[f]or too many years,” the defendants “operated a cannabis dispensary in the unincorporated area of the County of San Bernardino in brazen disregard for the County’s prohibition on all commercial cannabis activity.”
It advertised itself on Weedmaps, Google, Weednow and Facebook as a storefront medical marijuana dispensary, the county pointed out.
The judgment was proclaimed by San Bernardino Superior Court Judge David S. Cohn at a hearing on June 9, 2020. The church sought relief from that judgment on the ground that its lawyer and Mancini failed to show up because they thought the courthouse was closed due to the pandemic.
The county insisted, however, that the “failure to file a trial brief and failure to appear at the hearing at which the judgment was issued, were not the result of mistake, inadvertence or excusable neglect that supports relief” under Code of Civil Procedure §473(b), but “was simply a continuation of the historical disregard Appellants and their counsel, Matthew Pappas, showed towards the trial court and the process.”
‘Pleading’ Not Attached
Agreeing with the county that Cohn properly denied the motion to vacate the judgment, Court of Appeal Justice Carol D. Codrington, treating the trial brief that Pappas had neglected to file as a “pleading,” pointed out:
“Section 473(b) states that an application for relief under the statute ‘shall be accompanied by a copy of the answer or other pleading proposed to be filed therein.’ (Italics added.)… Thus, if a section 473(b) application is not accompanied by a proposed pleading, the ‘application shall not be granted.’ ”
The justice said that because “Appellants did not submit any proposed pleading (i.e., a trial brief) along with their section 473(b) motion….the trial court did not abuse its discretion by denying the motion based on Mr. Pappas’s failure to file a trial brief.”
Codrington did not allude to Code of Civil Procedure §422.10 which specifies that “[t]he pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints.” Nor was she guided by her division’s express rejection on March 13, 2019—although in an uncitable “not for publication” opinion—of the proposition that “every legal document filed in a lawsuit” is a pleading.
Div. One of her district set forth on Dec. 21, 2021, in a published opinion in People v. Financial Casualty & Surety, Inc., that “a motion is not a pleading,” citing §422.10. Other cases—including one decided on May 16 by this district’s Court of Appeal—have also so declared, and earlier opinions have pronounced that that a judgment or a notice of appeal are not pleadings.
Codrington also said:
“Mr. Pappas’s failure to attend the hearing or tell Mancini about it was also inexcusable because he could have easily confirmed whether the hearing would proceed despite court closures caused by the COVID-19 pandemic by calling the court or checking the docket. His failure to do so does not warrant relief under section 473(b).”
Freedom of Religion
Addressing the merits, Codrington declared that the federal Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)—in particular, 42 U.S.C. §200cc—does not apply. That section bars land-use regulations that place a substantial burden on the exercise of religion.
“Appellants cannot show that the County ordinance imposes a substantial burden on their religious exercise. The Church’s only relevant religious practice is the use of blessed cannabis products, which its adherents consider to be their sacrament. The County ordinance, however, does not prohibit appellants from possessing, blessing, or consuming cannabis products. The ordinance bans only commercial cannabis activity, including selling and dispensing cannabis, whether for profit or otherwise. As appellants acknowledge, ‘the provisioning of cannabis’ is not a ‘religious activity’ of the Church, its pastors, or its congregants. Appellants thus concede that the County may prohibit the Church from selling cannabis or giving it out as part of a quid pro quo donation.”
The church also invoked Art. I, §4 of the state Constitution which provides:
“Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.”
The justice responded:
“On its face, the ordinance is a neutral law of general applicability….The County ordinance prohibits all commercial cannabis activity on unincorporated County property by anyone.
“Appellants do not cite, and we cannot locate, anything in the record that suggests the County enforced the ordinance against appellants for a discriminatory reason. Rather, the evidence overwhelmingly shows that County enforced the ordinance against appellants only because the County believed (for good reason) that appellants had violated the ordinance by running an illegal commercial cannabis dispensary.”
The case is County of San Bernardino v. Mancini, E075246.
The church, then located in Fallbrook in North San Diego County, was raided by sheriffs’ deputies on Oct. 25, 2018 and closed down. Mancini told the NBC station in San Diego that the deputies were “throwing the ministers around, handcuffing them,” and seized more than $1 million worth of marijuana.
Suit was brought in San Diego Superior Court, which the county removed to the U.S. District Court for the Southern District of California.
On June 13, 2019, Senior Judge Barry Ted Moskowitz dismissed, with leave to amend, a cause of action for a civil rights violation, saying:
“Here, Plaintiff has failed to allege a violation of a right secured by the Constitution. Plaintiff cannot state a First Amendment claim against the County for enforcing its ‘secular ban of marijuana dispensaries’ pursuant to a local ordinance…because ‘[t]he right of free exercise [under the First Amendment] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes...conduct that his religion prescribes.’…The Complaint is also deficient because it fails to identify any policy or custom of San Diego County, pointing only to alleged injuries inflicted by the municipality’s employees and agents, which is insufficient to state a § 1983 claim.”
Pursuant to a stipulation, the action was subsequently dismissed without prejudice.
The church has attracted national attention. A report on Nov. 23, 2019 in the New York Times began:
“Every Sunday, about two dozen people gather at a green cabin along the main drag of Big Bear, Calif., a small mountain town known for its namesake lake. They go there for Jah Healing Church services, where joints are passed around.
“April Mancini, a founder of the church, said she was drawn to the idea of cannabis as a religious sacrament back in 2013, after she met a Rastafarian who was running the place as an unlicensed medicinal dispensary.
“ ‘I’m a Christian, so I wasn’t sure in the beginning,’ Ms. Mancini said. ‘I didn’t want to go against God.’
“But she said she studied the Bible for references to cannabis, and believed she found them in scriptures that mentioned kaneh bosem oil. (English-language Bibles usually render the term ‘kaneh bosem,’ a component of an anointing oil mentioned in Exodus, as ‘fragrant cane’ or ‘sweet calamus.’)”
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