I kept waiting for the other shoe to drop in this one. It never came.
The California Supreme Court holds that Riverside -- and any other municipal entity -- can totally ban the sale of medical marijuana notwithstanding the initiative (and subsequent statute) that allows medicinal use. So it's okay for you to use marijuana for your cancer, terminal illness, etc. But good luck actually getting some. Every municipality can prohibit such conduct as a public nuisance. Such ordinances aren't preempted by the state law.
The decision itself was not entirely surprising. Neither the Court of Appeal nor the California Supreme Court have been particularly favorable when it comes to medical marijuana. They've taken a very limited approach, and this morning's opinion is fully consistent with this outlook. It's also true that advocates of medical marijuana have sometimes understood the relevant statutes more broadly than they in fact are. Possession and sale of marijuana remains a crime, albeit a federal (rather than state) one. Moreover, states possess traditional police powers to extensively regulate -- viz zoning and other regulations -- even entirely legal and/or constitutionally protected conduct; e.g., housing, adult bookstores, etc. All this, plus a strong presumption against preemption, makes today's opinion not a complete shocker.
But as I read the opinion, I nonetheless kept waiting for the dissent. Something that never came. The opinion was unanimous.
That, by contrast, was surprising. At least to me. Notwithstanding the fact that I'm fully aware that the justices are -- beneficially, in my view -- generally a get along, go along group.
I agree there's no express ("conflict") preemption. But the case for implied preemption is strong. The California Supreme Court makes much of the fact that state law doesn't "positively" allow the sale of medical marijuana, but instead merely provides an exemption from certain criminal laws. But as the Compassionate Use Act itself expressly makes clear, the intent of the statute was to advance -- indeed, "to ensure" -- the ability of "seriously ill Californians . . . to obtain and use marijuana for medical purposes." That's a positive right. Or at least a positive intent. With all due respect to the California Supreme Court, that can't successfully happen if every municipality in the state prohibits (as Riverside does) the sale of marijuana to critically ill citizens. Nor can it happen if someone sick in Riverside is required to get in their car and drive up to whatever municipality -- say, in Humboldt -- elects to exercise legislative grace and allow medical marijuana dispensaries.
Justice Liu has a brief concurrence that tries to explain the preemption point with an analogy to the Federal Arbitration Act. I appreciate that. Especially since I'm in the midst of writing a law review article that makes a very related preemption point. He's right, for example, that just because the FAA requires courts to enforce arbitration agreements, that doesn't require employers to use them. True.
But let me draw a closer analogy. Imagine that Riverside passed a zoning ordinance that said that no building with an office in Riverside could write, draft, enforce, or have employees sign an arbitration agreement, nor could any arbitration hearing be conducted therein. Because, in Riverside's view, such proceedings (and clauses) are "nuisances". Would conflict preemption exist? Clearly, yes. Because the local ordinance conflicts not with the text of the statute, but with the accomplishment of its purposes. Particularly when, as with medical marijuana, lots of municipalities pass similar laws, and especially when (as here) there's little to no recourse to an out-of-state forum.
There's admittedly a structural problem underneath all of this, and one that the California Supreme Court either overlooks or deliberately fails to mention. The Compassionate Use Act was a statute passed by initiative. The Legislature was an obstacle, and had to be bypassed. For that reason, the statute is not easily modified, since that would require yet another initiative. Nor, for similar reasons, can the statute flexibly respond to attempts to circumvent it. Those who draft the statute have to try to anticipate efforts -- like those of Riverside here -- to defeat the objectives of the Act, and if they are unsuccessful in anticipating a particular means of circumvention, that puts the objectives of the initiative at risk. The Legislature can't (or, more accurately, won't) adopt a "quick fix" as would happen in the case of a legislatively passed statute.
In one universe, that's where the judiciary would come in. Courts would apply implied preemption to make sure that there isn't a structural public choice failure. They'd make sure that localities could not circumvent the purpose of a statute by engaging in conduct that there's every reason to believe would defeat the central objectives of the statute. If you asked someone who voted for the CUA at the ballot box whether they wanted medical marijuana to be legal but whether localities should nonetheless be able to categorically prohibit its sale, I have no doubt whatsoever what the response would be. In one universe, that would matter.
But that universe is not California. Not even for a single justice.
So I was surprised. Perhaps not at the ultimate result. But definitely at the uniformity.
