The California Supreme Court on Wednesday denied a petition and depublication request regarding an appellate court decision that upheld the right of local governments to completely ban medical marijuana cultivation by patients.
The court took the action in the case of Maral v. Live Oak, in which last November the Third District Court of Appeals upheld the city of Live Oak's complete ban on medical marijuana cultivation.
The Supreme Court's refusal to review the decision means it stands as a legal precedent under California law, according to Cal NORML, which sponsored the lawsuit seeking the petition and depublication.
The organization called the court's action “a disappointing setback” in a Wednesday statement.
Working on Cal NORML's behalf, in January, attorney Joe Elford – who in 2012 represented Don Merrill and several other plaintiffs who sued the county of Lake over its interim marijuana cultivation ordinance – petitioned the Supreme Court to depublish the Live Oak decision, arguing that such bans violate Proposition 215, the Compassionate Use Act, and SB 420.
SB 420's Medical Marijuana Program, or MMP, sets a statewide cultivation guideline of six mature or 12 immature plants and specifically authorizes local governments to establish higher – but not lower – guidelines.
“We are deeply disappointed by the court's decision,” said Cal NORML Director and Proposition 215 co-author Dale Gieringer. “They have effectively undermined Proposition 215's stated purpose 'to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.'”
The court issued no explanation for its decision – considered usual practice for depublication petitions – which Cal NORML said effectively opens the legal door for further bans throughout the state.
Live Oak, which does not allow dispensaries, was the first government entity in California to completely ban all patient cultivation, Cal NORML reported.
According to court documents, the Live Oak City Council unanimously passed the ordinance in December 2011.
The Live Oak ordinance was challenged by individuals including James Maral, acting both as an individual and as a trustee of Live Oak Patients, Caregivers and Supporters Association.
Cal NORML said Maral suffers severe medical problems that he had been treating with medicine grown at home.
Maral argued that Proposition 215 and SB 420's Medical Marijuana Program granted him the right to cultivate medical marijuana, and that the ordinance was an “impermissible amendment” to the Compassionate Use Act, based on court documents.
But the appellate court, citing the Supreme Court's 2013 decision in City of Riverside v. Inland Empire Patients Health and Wellness Center Inc., found that the objectives of Proposition 215 and the MMP “were 'modest,' and those acts did not create a 'broad right' to access medical marijuana.”
“Rather than granting a blanket right to use marijuana for medical purposes, the CUA (Compassionate Use Act) only immunizes specific persons from criminal prosecution under two sections of the Health and Safety Code. Thus, the CUA grants only 'a limited immunity from prosecution,'” the court said.
Further, the CUA “creates only a limited defense to certain crimes, 'not a constitutional right to obtain marijuana,'” according to the Third Appellate Court decision.
That decision also found that the Compassionate Use Act and the MMP “do not preempt the authority of cities and counties to regulate, even prohibit, facilities that distribute medical marijuana.”
The appellate court said the reasoning of the Riverside case applies to the cultivation of medical marijuana as well as its distribution, as both are addressed in the Compassionate Use Act and the MMP, and accordingly the court concluded that those laws “do not preempt a city’s police power to prohibit the cultivation of all marijuana within that city.”
Other local governments, including Fresno county and city, have moved to ban personal use cultivation as well, Cal NORML said.
While Cal NORML said the Wednesday decision does not preclude the possibility of a future challenge to local cultivation bans in another appellate district, plaintiffs face difficult odds in light of the Supreme Court's ruling.
Email Elizabeth Larson at [email protected] . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.