Tuesday, May 21, 2013

What's Next for Medical Marijuana in California?

This post by Associate Clinical Professor Jessica Levinson originally appeared on KCET's website.

Here we go again. Yet another tale of the legal challenges that frequently follow the passage of ballot initiatives in California.

In a unanimous decision last week, the California Supreme Court ruled that cities and counties can prohibit medical marijuana dispensaries.. The state's highest court found that two state laws, the Compassionate Use Act and the Medical Marijuana Program, do not preempt the ability of localities to use zoning laws to ban pot shops. The Compassionate Use Act was enacted via the ballot initiative process in 1996. The Medical Marijuana Program is a companion piece of legislation passed by the legislature in 2003.

The court ruled that the California Constitution gives localities so-called "police powers" under which they can legislate for the health, safety, and welfare of their jurisdictions. The court found that under those powers, localities have the authority to prohibit pot shops because the state statutes did not explicitly or implicitly prevent localities from imposing those prohibitions.

If the instead Compassionate Use Act had included a specific statement providing that localities cannot use their police powers to ban marijuana dispensaries then the court's decision likely would have come out the other way. But, of course, the initiative did not include such language. Any such language would have been a gift to opponents of the initiative. Thus the court was able to read the state laws narrowly.

Now, the question seems to be, what's next? There is, of course, the possibility of a new law on the state level, either through the legislative process or the ballot process. The state legislature could follow the lead of other states and legalize the recreational use of marijuana. The legislature could try to explicitly preempt this area of the law by state that localities cannot use their police powers to ban marijuana dispensaries. Another option is for the people to propose yet another ballot initiative to the same effect.

Yet another possibility is that on the local level people in localities that banned medical marijuana dispensaries could circulate initiatives which essentially overturn those bans.

And with all that said, this is happening in nation where the federal government lists marijuana as a Schedule 1 substance. Doctor's note or not, it's illegal in their eyes.

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