Thursday, December 10, 2015

Kirby v. County of Fresno (Cal. Ct. App. - Dec. 1, 2015)

In some ways, opinions like this one are depressing.  But in other ways, I could care less.

California voters passed the Compassionate Use Act, and then the Legislature passed the Medical Marijuana Program, in order to allow qualified patients to cultivate and use the drug or medicinal purposes.  But then recalcitrant municipalities -- like the County of Fresno here -- used their local zoning power to outlaw marijuana dispensaries as well as cultivation.  All of it.

So you could use marijuana.  It'd just remain illegal (and impossible) to buy and/or grow it.

The California judiciary concluded, as in the present case, that these municipal provisions are just fine.  They don't conflict with the voter-approved initiative or the Legislature's MMP.  Yes, a county can't criminalize the thing, so those provisions would be struck down.  But it can nonetheless make it impermissible -- e.g., a $1000/plant/day fine -- to actually grow the stuff.  Or sell it.  Anywhere in the county.  Effectively making the CUA and MMP meaningless.  Since if you can't get the drug, you can't use it as medicine.

On the one hand, this seems to me an extremely cramped version of preemption.  And overlooks the interplay between voter-approved initiatives that desire X and localities that deliberately attempt to frustrate X in the guise of ostensible police powers.

On the other hand, okay, fine.  The County of Fresno wins this battle.  Go ahead and make this stuff impermissible via zoning.  It's going to happen anyway.  It's just underground like it was before the CUA and MMP.  Congratulations.

Plus, now that we know how places like this respond to voter-approved initiatives, we'll be sure to make sure that the next ones prohibit you from engaging in similar chicanery.

In other words, as Mr. Townshend says, "We won't get fooled again."