SACV 13-0615 - Forfeiture - Medical Marijuana - 1638 E. 17th Street (Burcaw) - Request For Judicial Notice

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CLAIMANTS FIRST REQUEST FOR JUDICIAL NOTICE

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MATTHEW S. PAPPAS (SBN: 171860)
22762 Aspan Street, Suite 202-107
Lake Forest, CA 92630
Phone: (949) 382-1485
Facsimile: (949) 242-2605
E-Mail: matt.pappas@mattpappaslaw.com

Attorney for Claimants,
MARK BURCAW, D.C., MARTHA BURCAW, and
THE BURCAW FAMILY TRUST

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
REAL PROPERTY LOCATED AT 1638 E.
17TH STREET, SANTA ANA,
CALIFORNIA (BURCAW),
Defendants,
___________________________________
MARK BURCAW, D.C. AND MARTHA
PESQUERA BURCAW AS TRUSTEES
OF THE BURCAW FAMILY TRUST
DATED DECEMBER 31, 1992,
Titleholders.

No.: SACV 13-0615 JST (ANx)

CLAIMANTS FIRST REQUEST FOR
JUDICIAL NOTICE (IN SUPPORT
OF CLAIMANTS RULE 12(b)(6)
MOTION TO DISMISS PLAINTIFFS
COMPLAINT)

Date: November 8, 2013
Time: 2:30 p.m.
Dept: 10A, Santa Ana
Hon. J osephine Tucker

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Case 8:13-cv-00615-JST-AN Document 11 Filed 09/23/13 Page 1 of 308 Page ID #:84
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The Claimants respectfully request, pursuant to Federal Rule of Evidence 201, that
the Court take notice of Exhibits 1 through ___ included with this request.
Exhibit 1: National Cancer Institute, federal National Institutes of Health,
www.cancer.gov PDQ Report, Cannabis and Cannabinoids, J anuary 17, 2013.
Exhibit 2: U.S. Patent No. 6630507 (Page 1), Cannabinoids as Antioxidants and
Neuroprotectants, Hampson, Inventor, assigned to the United States of America by the
U.S. Department of Health and Human Services, October 7, 2003.
Exhibit 3: Webpage from the National Cancer Institute website, www.cancer.gov,
federal National Institutes of Health, March, 2011.
Exhibit 4: Memorandum, J ames Cole, Deputy United States Attorney General,
August 29, 2013.
Exhibit 5: Memorandum, J ames Cole, Deputy United States Attorney General,
J une 29, 2011.
Exhibit 6: Memorandum, David W. Ogden, Deputy United States Attorney
General, October 19, 2009.
Exhibit 7: Transcript Pages, Testimony of U.S. Attorney General Eric Holder,
U.S. House of Representatives, J udiciary Committee, December 8, 2011.
Exhibit 8: Transcript Pages, Interview of U.S. Attorney Andr Birotte, J r., KABC
Television, Newsmakers, J uly 28, 2013.
Exhibit 9: Letter, U.S. Congress, House of Representatives, Rep. J ared Polis, D-
Colorado to Mr. Eric Holder and Ms. Michele Leonhart, November 16, 2012.
Exhibit 10: Letter, Robert Petzel, Undersecretary of Health for the Veterans
Department, J uly, 2010.
Exhibit 11: Veterans Administration Directive 2011-004.
Exhibit 12: DC ST 7-1671.05 and 7-1671.06, parts of the District of Columbia
Legalization of Marijuana for Medical Treatment Act.
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Exhibit 13: Excerpts from House Report 111-202 (H.R. 3170 amended) (enacted
as Pub. Law 111-117) (111
th
Cong., 2009).
Exhibit 14: Text of the Legalization of Marijuana for Medical Treatment
Initiative Amendment Act of 2010.
Exhibit 15: Opinion in California Court of Appeal case People v. J ovan J ackson,
210 Cal.App.4th 525 (2012).
Exhibit 16: Opinion in California Court of Appeal case People v. Hochanadel,
176 Cal.App.4th 997 (2009).
Exhibit 17: Opinion in California Court of Appeal case Qualified Patients Assn
v. City of Anaheim, 187 Cal.App.4th 734 (2010).
Exhibit 18: Appellants Opening Brief in California Court of Appeal case
Modiano, et al. v. City of Anaheim, No. G048303.
Exhibit 19: Letter from Scott C. Smith, city attorney for the City of Lake Forest,
California to Andr Briotte, J r., United States Attorney for the Central District of
California dated May 3, 2011.
Exhibit 20: Letter from Andr Briotte, J r., United States Attorney for the Central
District of California to Scott C. Smith, city attorney for the City of Lake Forest,
California dated Oct. 7, 2011.
Exhibit 21: U.S. Dept. of Justice Website page located at http://www.justice.gov
/usao/cac/Pressroom/2011/144.html accessed on February 25, 2012.
Exhibit 22: Letter from Steven R. Welk, Assistant U.S. Attorney, written to
Nutritional Concepts in Costa Mesa, California dated J anuary 18, 2012.
Exhibit 23: Declaration of Howard Weitzberg, J anuary 30, 2012.
Exhibit 24: Declaration of Tracie Butcher, J uly 22, 2013.
Exhibit 25: Orange County Register, Article, Costa Mesa asked feds for help in
pot crackdown, Sean Greene, Reporter, February 7, 2012.
Exhibit 26: Lawyers.com, Article, US Attorney Hints Medical Marijuana
Crackdown to Continue, J osh Crank, Reporter, September, 2013.
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Exhibit 27: Los Angeles Times, Article, Haze of Illogic on Marijuana, Steve
Lopez, Reporter, August, 2013.
Exhibit 28: U.S. Department of J ustice, U.S.A.M. (U.S. Attorneys Manual) 9-
2.400, Prior Approvals Chart, August, 2013.
Exhibit 29: U.S. Department of J ustice, U.S.A.M. (U.S. Attorneys Manual) 1-
13.000, Urgent Reports, August, 2013.
Exhibit 30: Congressional Research Service, Report No. R43034, State
Legalization of Recreational Marijuana: Selected Legal Issues, Todd Garvey and Brian
T. Yeh, April, 2013.
Exhibit 31: 1971 Comprehensive Drug Abuse Prevention and Control Act
legislative document, Congress, 1970.
BASIS FOR REQUESTING JUDICIAL NOTICE
J udicial notice is appropriate for each of the items submitted by the Claimants
pursuant to Fed. R. Evid. 201. Under Rule 201(b), the Court may take judicial notice of
any matter not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
J udicial notice may be taken at any stage of the proceeding. Fed. R. Evid. 201(f); Lowry
v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003); Bryant v. Carleson, 444 F.2d 353, 357-
58 (9th Cir. 1971). A Federal Court takes judicial notice of facts if requested by a party
and supplied with the necessary information. Fed. R. Evid. 201(d).
EXHIBITS 1, 2, & 3
Exhibits 1, 2, and 3 include documents from official government websites. Courts
may take judicial notice of matters of public record, including documents appearing on a
government website. See, e.g., Daniels-Hall v. Natl Educ. Assn, 629 F.3d 992, 998-99
(9th Cir. 2010) (taking judicial notice of information displayed publicly on school district
website); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) (taking judicial notice of
matter of public record). See also Cota v. Maxwell-J olly, 688 F. Supp. 2d 980, 998 (N.D.
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Cal. 2010) (The Court may properly take judicial notice of the documents appearing on
a governmental website); Paralyzed Veterans of Am. v. McPherson, No. 06-4670, 2008
WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (taking judicial notice of a letter appearing
on the Secretary of States website).
Exhibit 1 is a report from the National Cancer Institute (NCI) found at
www.cancer.gov. At page 1, the federal government, through NCI, provides:
One study in mice and rats suggested that cannabinoids may have a protective
effect against the development of certain types of tumors.[3] During this 2-year
study, groups of mice and rats were given various doses of THC by gavage. A
dose-related decrease in the incidence of hepatic adenoma tumors and
hepatocellular carcinoma was observed in the mice. Decreased incidences of
benign tumors (polyps and adenomas) in other organs (mammary gland, uterus,
pituitary, testis, and pancreas) were also noted in the rats. In another study, delta-
9-THC, delta-8-THC, and cannabinol were found to inhibit the growth of Lewis
lung adenocarcinoma cells in vitro and in vivo .[4] In addition, other tumors have
been shown to be sensitive to cannabinoid-induced growth inhibition.[5-8]

Both Exhibit 1 and 3 are relevant because both tend to shows that Title II of the
Comprehensive Drug Abuse Prevention and Control Act of 1971 is targeted at combatting
the recreational abuse of drugs, not the medical use of drugs including marijuana. The
report in Exhibit 1 is further relevant because it shows the United States has determined
there is medical value to marijuana which is consistent with California state law.
Exhibit 2 is the first page of a patent obtained and held by the United States of
America in 2003 titled Cannabinoids as Antioxidants and Neuroprotectants. The
patent was obtained from the U.S. Patent office and the Google patent Website. In the
patent, the United States proffers:
Cannabinoids have been found to have antioxidant properties, unrelated to
NMDA receptor antagonism. This new found property makes Cannabinoids
useful in the treatment and prophylaxis [in] age-related, inflammatory and
autoimmune diseases. The Cannabinoids are found to have particular application
as neuroprotectants, for example in limiting neurological damage following
ischemic insults, such as stroke and trauma, or in the treatment of
neurodegenerative diseases, such as Alzheimers disease, Parkinsons disease and
HIV dementia.
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The patent document exhibit is relevant because it shows the United States had allowed
and was conducting research into the medical benefits of cannabis as far back as 1998. It
is further relevant because it shows the United States of America itself has determined, in
applying and receiving the patent (a patent applicant must prove a use for the thing being
patented), that cannabinoids derived from marijuana are medically effective in treating
neurodegenerative diseases. This further supports the proposition raised by Claimants
that the sole purpose of Title II of the Comprehensive Drug Abuse Prevention and
Control Act of 1971 is to combat the recreational abuse of drugs, not the medical use of
drugs including marijuana.
EXHIBITS 4, 5, & 6
Exhibits 4, 5, and 6 include documents from official government websites. Courts
may take judicial notice of matters of public record, including documents appearing on a
government website. See Daniels-Hall v. Natl Educ. Assn, supra; Shaw v. Hahn,
supra; Cota v. Maxwell-J olly, supra. Exhibits 4, 5, and 6 are also official documents of
the Executive Branch of the federal government. The court may take judicial notice of
official documents of co-equal branches of the federal government under Rule 201. Each
exhibit is an official policy memorandum published by the United States Department of
J ustice, a division of the Plaintiff in this case. The Exhibits are relevant because each
memorandum shows:
A. that a policy was established that was to be followed by select U.S. Attorneys,
including the U.S. Attorney handling this case;
B. that the policy of the United States is not to use resources to prosecute patients,
collectives, dispensaries, caregivers, cultivators and other medical marijuana
persons/entities in compliance with state medical marijuana law; and
C. that the issue of medical marijuana is an important, national issue addressed
multiple times by the Executive Branch at the highest levels of the J ustice
Department over the last several years.

EXHIBIT 7
Exhibit 7 is a transcript of proceedings held before the Judiciary Committee of the
U.S. House of Representatives on December 8, 2011. Courts may take judicial notice of
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matters of public record, including official proceedings of Congress. See Daniels-Hall v.
Natl Educ. Assn, supra; Shaw v. Hahn, supra; Cota v. Maxwell-J olly, supra. Exhibit 7
is a transcript of proceedings before part of the Legislative Branch of the federal
government. The court may take judicial notice of Congressional proceedings under
Rule 201. The transcript is relevant because it includes testimony by the United States
Attorney General that the Executive Branch will not take action against people and
entities in full compliance with state medical marijuana law and the conditions set forth
in the Exhibits 5 and 6 memoranda. It shows further that the provisions of the Exhibit 6
memorandum remain in effect. The transcript shows the Attorney General further limited
the actions of U.S. Attorneys beyond simple resource allocation when he testified:
given the limited resources that we have, and if there are states that are that
have medical marijuana provisions and if you take into account the Cole memo,
if, in fact, people are not using the policy decision we had made to use marijuana
in a way thats not consistent with the state statute we will not use our limited
resources [to attack/prosecute medical marijuana entities]. (emphasis added.)

EXHIBIT 8
Exhibit 7 is a transcript of statements made by U.S. Attorney Andr Birotte, J r. on
J uly 28, 2013 during a televised interview on station KABC in Los Angeles, California.
The contents of the transcript match statements made by Mr. Birotte during the interview
and can be easily verified. The interview was broadcast in a territory that includes Los
Angeles and most, if not all, of the Central District of California. The transcript is not
subject to dispute because it, in fact, represents statements made by Mr. Birotte.
Accordingly, Exhibit 7 is proper for judicial notice under Rule 201.
The transcript is relevant because it shows Mr. Birotte has represented he has, as
U.S. Attorney for the Central District of California, limited federal actions to entities that
are not only violating federal law, but that are also violating state law. To the contrary, e-
mails, declarations, and public statements show that Mr. Birotte is closing all medical
marijuana entities in the Central District, regardless of compliance with state law.
Indeed, the complaint filed by the United States in this case is absent of any facts
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showing the United States makes any determination of whether medical marijuana
patients or collectives are in compliance with state law:
While these marijuana stores purport to be medical marijuana dispensaries
operating pursuant to California law, and claim to be distributing marijuana for
medical purposes, such distribution is not a recognized exception to the
Controlled Substances Act. (Complaint, p.3, ll. 18-22.)

EXHIBITS 9. 10, 11, 12, 13, & 14
Exhibits 9, 10, 11, 12, 13, and 14 are official documents of the federal government
and are each public record. Exhibits 9 and 10 are letters written on the official letterhead
of the U.S. Congress and Veterans Administration. Each are self-executing because each
is signed by their respective authors. The letters were obtained from official government
websites and can be easily verified. The letters are not subject to dispute because each is
a true and correct copy of the letters published by the authors. Accordingly, Exhibits 9
and 10 are proper for judicial notice under Rule 201.
Exhibits 11, 12, 13, and 14 are official documents of parts of the federal
government. Exhibit 11 is an official policy of the Veterans Administration. Exhibits 12
and 14 are official legislative documents of the District of Columbia government which is
under the exclusive control of Congress (art. 1, 8, cl. 17, U.S. Const.). Exhibit 13 is an
official report of the U.S. House of Representatives. Each of these exhibits is not subject
to dispute, is known in the territorial area of the United States, and is proper for judicial
notice under Rule 201.
EXHIBITS 15, 16, 17, & 18
Exhibits 15, 16, 17, and 18 are case law or filings in California appellate court
proceedings. Courts may take judicial notice of their own files, as well as the files of
other courts of competent jurisdiction, including briefs, pleadings, and rulings. See, e.g.,
Reyns Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking
judicial notice of briefs in another court); Meredith v. Oregon, 321 F.3d 807, 817 n.10
(9th Cir. 2003) (taking judicial notice of Claimants filing in state court). Specifically,
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federal courts may take judicial notice of proceedings in other courts, both state and
federal, if those proceedings have a direct relation to matters at issue. Allen v. City of
Los Angeles, 92 F.3d 842 (9th Cir. 1992). Likewise, federal courts may take judicial
notice of state agency records that are not subject to reasonable dispute. See City of
Sausalito v. O'Neill, 386 F.3d 1186, 1224 n. 2 (9th Cir. 2004).
Exhibits 15 and 16 are relevant and have a direct relation to the matters at issue in this
case because they are final state appellate court decisions providing that medical
marijuana dispensaries are anticipated and provided for under Californias medical
marijuana laws. Exhibit 15, People v. J ovan J ackson, is further relevant because, in
respect to the eight (8) conditions enumerated in the Exhibit 4 memorandum by Dep.
Atty. Gen. Cole, it demonstrates the strict controls on medical marijuana imposed under
California law, including but not limited to non-profit and democratic operations of
dispensaries. The case also shows, contrary to the incorrect legal conclusions in the 2011
Exhibit 20 letter written by U.S. Attorney Birotte, that California law provides for
dispensaries as well as for the exchange of money for medical cannabis. Exhibit 26,
People v. Hochanadel, provides that commercial dispensaries are provided for in
Californias medical marijuana laws and also sets forth a number of the strict controls
governing dispensaries. These issues are directly related to this case because the U.S.
Attorney in this District is obligated to follow the policies set forth by the Attorney
General, including those in the Exhibit 4 through 6 memoranda published by U.S. Deputy
Attorneys General since 2009. Hochonadel demonstrates the mistaken assumption of a
police officer in assuming that all store-front dispensaries are prohibited under California
law (Ex. 26 at p. 29, Detective Garcia's erroneous conclusion that store front
dispensaries could never operate legally did not render him incompetent to author the
search warrant). In fact, under Hochonadel, storefront dispensaries are anticipated and
acceptable when operating in compliance with California Health and Saftey Code
11362.5 (CUA) and 11362.7 (MMPA) as well as the 2008 California Attorney General
Guidelines on the Safety and Non-Diversion of Marijuana Grown for Medical Use. (See,
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e.g. Ex. 26 at pp. 2-3, [W]e also conclude that storefront dispensaries that qualify as
cooperatives or collectives under the CUA and MMPA, and otherwise comply with
those laws, may operate legally). Hochonadel is likewise relevant because the case
provides, contrary to the statements of the United States Attorney and city attorney
Smith, the Ca. MMPAs specific itemization of the marijuana sales law indicates it
contemplates the formation and operation of medicinal marijuana cooperatives that would
receive reimbursement for marijuana and the services provided in conjunction with
the provision of that marijuana. Ex. 26 at 11 quoting People v. Urziceanu, 132
Cal.App.4th 747 (2005), 785.
Exhibit 17, Qualified Patients v. City of Anaheim, holds that California cities are
creatures of state government and as such cannot be conscripted to enforce federal law. It
also holds that California cities must give meaning and effect to state laws on the same
subject as differing federal law when there is no basis for federal preemption of state law.
Exhibit 18 is the Appellants Opening Brief in Modiano v. Anaheim which includes
citations and legal argument supporting the proposition that medical marijuana patients
who along with their authorized caregivers are the only people who are protected under
Californias medical marijuana laws are disabled individuals protected from
discrimination by the California Disabled Persons Act and the states Unruh Civil Rights
Act. This supports the Claimaints position that a refusal by a landlord to rent space to a
dispensary which can only be a group of disabled people violates the states Unruh
Civil Rights Act.
Exhibits 15, 16, and 17, when considered along with the Exhibit 20 letter written
by U.S. Attorney Andre Birotte, J r. incorrectly stating that dispensaries are not provided
for under California law, demonstrate that the U.S. Attorney is not familiar with state law
and that he has not evaluated state law compliance properly in any of the forfeiture or
other medical marijuana actions he has taken since 2011.
EXHIBITS 19, 20, 21, & 22
Exhibits 19, 20, 21, and 22 include official government letters. Each letter was
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posted on websites of either government entities or their authorized representatives (i.e.
the law firm of Best, Best, and Kreiger (BBK), which serves as the official city attorney
for various California cities). BBK contracted with the City of Santa Ana in 2012 to have
an employee of the firm appointed as Santa Ana City Attorney (Sonia Carvalho). Exhibit
19, a letter written by BBK, improperly asserts that the federal government must come in
to help California cities rid themselves of medical marijuana patient groups. Exhibit 20
is an official letter on the letterhead of the U.S. Attorney and signed by him written to
BBK. Exhibit 20 is a letter written by Asst. U.S. Attorney in-charge of the Asset
Forfeiture Division to a patient group in Costa Mesa. Exhibit 21 is an official webpage
of the United States Department of J ustice.
Courts may take judicial notice of matters of public record, including documents
appearing on a government website. See, e.g., Daniels-Hall v. Natl Educ. Assn, 629
F.3d 992, 998-99 (9th Cir. 2010) (taking judicial notice of information displayed publicly
on school district website); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) (taking
judicial notice of matter of public record). See also Cota v. Maxwell-J olly, 688 F. Supp.
2d 980, 998 (N.D. Cal. 2010) (The Court may properly take judicial notice of the
documents appearing on a governmental website); Paralyzed Veterans of Am. v.
McPherson, No. 06-4670, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (taking
judicial notice of a letter appearing on the Secretary of States website). Accordingly, the
referenced exhibits -- letters written by official city attorneys, the United States Attorney
and Asst. U.S. Atty. in-charge of the Central District Asset Forfeiture Division, and the
official webpage content of the U.S. Attorney -- are judicially noticeable under Rule 201
and applicable case law
Exhibit 19 is relevant because it shows that California cities are engaged in an
effort to rid themselves of all medical marijuana collectives and it asserts that California
appellate courts are interfering with the cities ability to accomplish that goal (see, e.g.,
Ex 19, at p. 1, showing BBK frustrated because the California Court of Appeal once
again stepped in to block enforcement ...). This same sentence shows some or all of the
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collectives are operating properly because it is unreasonable to even consider the state
appellate court would allow entities violating state
1
law to remain operating. Moreover,
the letter shows the appellate court has intervened multiple times because that city uses
the word again describing one particular occasion the appellate court stepped in to
block enforcement apparently preventing BBK from being able to rid cities of the
collectives for nearly two (2) years (see, e.g., Ex. 19 at p. 2, claiming BBK has been
stymied at every turn in its nuisance abatement efforts). In the letter, BBK asks the
United States Attorney to take action on its behalf (see, e.g., Ex 19, at p. 2).
Exhibit 20 is a letter from Andr Briotte, J r. to Mr. Scott Smith. The letter is on
the official letterhead of the U.S. Attorneys office. It is signed by Mr. Briotte. It follows
there is no basis for reasonably questioning the letters authenticity and accuracy. The
letter is relevant because it is consistent with the closure order letters sent out by Plaintiff
United States of America (UNITED STATES) to patient collectives and shows the
position taken in respect to such collective, including the collectives referred to in the
BBK letter for which the state appellate court has blocked enforcement actions. The
letter is further relevant because it shows the United States Attorney is taking action in
California despite Congresss action in the federal District of Columbia (Ex. 20, at p. 1,
e.g., persons engaged in any marijuana activities are violating federal law regardless of
state law.)
Exhibit 20 is further relevant because it shows the U.S. Attorney is stepping in
when Ca. cities ask the federal government to close all collectives. It shows the U.S.
Attorney believes that all collectives are illegal under Ca. law which is incorrect and
therefore shows the Government is taking action that contravenes state sovereignty and
state law. It also shows that Article II branch has not followed the limited scope holdings
from the Gonzales v. Oregon case. Additionally, the letter includes a quote from U.S.
Attorney Andr Briotte, J r. providing, [W]hile California law permits collective
cultivation of marijuana in limited circumstances, it does not allow commercial

1
If collectives were violating state law, the City would have brought criminal charges
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distribution through the store-front model we see across California. Ex. 26, the
Hochonadel appellate opinion, references Californias marijuana sales law that
anticipates monetary transactions and specifically holds that storefront dispensaries are
lawful when operated in conformance with the states CUA and MMPA.
Exhibit 21 is relevant because it shows the United States Attorney is not
complying with any of the policies set forth in Exhibits 4, 5, and 6, memoranda from
Dep. Attorneys General of the United States. It further shows that the actions of the U.S.
Attorney did not comply with relevant sections of U.S.A.M.
EXHIBITS 23 & 24
Exhibits 23 and 24 are declarations. Exhibit 23 is the Declaration of Howard
Wietzberg from J anuary, 2012 that was filed in the Ninth Circuit Court of Appeals case
J ames, et al. v. City of Costa Mesa, et al. The declaration is not subject to reasonable
dispute and its contents were not disputed by the United States as amicus curiae in that
case or by either of the City defendants. It is relevant because it shows the United States
Attorney is not concerned with state law compliance and is not following Department of
J ustice policy memoranda. Exhibit 24 is the Declaration of Tracie Butcher from J uly,
2013. It is relevant because it supports Claimants L.R. 7-3 statement that counsel for
Claimants met with and discussed issues prior to the filing of the related motion to
dismiss in this case. Both Exhibits are not subject to reasonable dispute for the purpose
provided and are judicially noticeable under Rule 201.
EXHIBITS 25, 26, & 27
Exhibits 25, 26, and 27 are press articles. As a general rule, the Court may take
judicial notice of the content of media articles. See, e.g., League of United Latin
American Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997) (quoting news articles
concerning legal challenge filed to block the implementation of a state law); Heliotrope
Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 (9th Cir. 1999) (taking judicial notice of
information contained in news articles); Ieradi v. Mylan Laboratories, Inc., 230 F.3d 594,

since the CUA and MMPA do not protect those who are out of compliance.
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597-98 (3rd Cir. 2000).
Although Exhibits 25, 26, and 27 are not presented for the truth of the matters
reported but rather to show that the issues in this case are of national interest and subject
to national press reporting, the Court may, under the authorities cited, consider the
content of the articles. The articles show that medical marijuana is a major national issue
as is the equitable sharing program, both issues in this case. Accordingly, for purposes
of discretion that has been delegated to the U.S. Attorney through the sole prosecutorial
power vested in the Attorney General, these Exhibits demonstrate that the U.S. Attorney
was required to comply with provisions of U.S.A.M. Moreover, the U.S. Attorney was
likewise required to comply with the policy memoranda included in Exhibits 4, 5, & 6.
The press articles were widely distributed and the fact that they were widely distributed is
not easily disputable. They were distributed in the territorial area of the United States
and are proper for judicial notice under Rule 201.
EXHIBITS 28 & 29
Exhibits 28 and 29 are sections of the United States Attorney Manual, which is a
public record and an official document of the Executive Branch. The Exhibits are not
subject to any reasonable dispute and are available on U.S. Government websites.
Accordingly, they are proper for judicial notice under Rule 201.
EXHIBIT 30
Exhibit 30 is an official Congressional Research Service report. It was published
by the Legislative Branch of the federal sovereign. It was retrieved from an official U.S.
Government website. Its contents are not easily disputable and it is widely available in
the territorial area of the United States. As such, it is proper for judicial notice under
Rule 201.
EXHIBIT 31
Exhibit 31 is an official copy of the 1970 legislative records of Congress. It shows
that the sole purpose of Congress when it enacted the 1971 Comprehensive Drug Abuse
Prevention and Control Act was to combat recreational drug abuse. It is relevant to show
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that enforcement in this case by the government is improper.

CONCLUSION
The authenticity and content of the exhibits under submission are not subject to
any reasonable dispute because they are capable of accurate and ready determination by
reliable sources here, government websites, the website of government agencies,
reputable public media sources, official court records, legislative records, and similar
materials. Likewise, for several exhibits, the authenticity and content are not subject to
reasonable dispute because they show the signature of the person executing the
document, are official statutes, or are public records and filings of a court of competent
jurisdiction.
In sum, the Court may properly take judicial notice of the above-referenced
documents. Accordingly, the Claimants request that the Court so take notice of the
items.
DATED this 23
rd
day of September, 2013.

_________________________________
Matthew Pappas
Attorney for Claimants

EXHIBIT 1
RJN P. 1
National Cancer Institute
Cannabis and Cannabinoids (PDQ)
Health Professional Version
Last Modified: 01/17/2013
Lab ora tory/An imalfPreclin ical Stu dies
Antitumor Effects
Appetite Stimulation
Analgesia
at the National Institutes of Health
Cannabinoids are a gro up of 21-carbon-containing terpenophenolic co mpounds produced uniqnely by
Cannabis sativa and Cannabis indica species.[l,2] These plant-derived compounds may be referred to
as phytocannabinoids. Although delta-9-tetrahydrocannabinol (THC) is the primary psychoactive
ingredient, other known compounds with biologic activity are cannabinol, cannabidiol (CRD),
cannabichromene, cannabigerol, tetrahydrocannabivarin, and delta-B-THC. CBD, in particular, is
thought to have significant analgesic and anti-inflammatory activity without the psychoactive effect
(high) of delta-9-THC.
Antitumor Effects
One study in mice and rats suggested that cannabinoids may have a protective effect against the
development of certain types oftnmors.[3] During this 2-year study, groups of mice and rats were given
various doses ofTHC by gavage. A dose-related decrease in the incidence of hepatic adenoma tumors
and hepatocellular carcinoma was observed in the mice. Decreased incidences of benign tumors (polyps
and adenomas) in other organs (mammary gland, uterus, pituitary, testis, and pancreas) were also noted
in the rats. In another study, delta-9-THC, delta-8-THC, and cannabinol were found to inhibit the growth
of Lewis lung adenocarcinoma cells in vitro and in vivo .[4] In addition, other tumors have been shown
to be sensitive to cannabinoid-induced growth inhibition.[s-8]
Cannabinoids may cause antitumor effects by various mechanisms, including induction of cell death,
inhibition of cell growth, and inhibition of tumor angiogenesis invasion and metastasis. [9-12] One review
summarizes the molecular mechanisms of action of cannabinoids as antitumor agents.[13] Cannabinoids
appear to kill tumor cells but do not affect their nontransformed counterparts and may even protect
them from cell death. These compounds have been shown to induce apoptosis in glioma cells in culture
and induce regression of glioma tumors in mice and rats. Cannabinoids protect normal glial cells of
astroglial and oligodendrogliallineages from apoptosis mediated by the CB1 receptor.[14]
RJN P. 2
The effects of delta-9-THC and a synthetic agonist of the CB2 receptor were investigated in
hepatocellular carcinoma (HCC).[lS] Both agents reduced the viability of hepatocellular carcinoma cells
in vitro and demonstrated antitumor effects in hepatocellular carcinoma subcutaneous xenografts in
nude mice. The investigations documented that the anti-HCC effects are mediated by way of the CB2
recepto r. Similar to findings in glioma cells, the cannabino ids were shown to trigger cell death through
stimulation of an endoplasmic reticulum stress pathway that activates autophagy and promotes
apoptosis. Other investigations have confirmed that CBl and CB2 receptors may be potential targets in
non-small cell lung carcinoma [16] and breast cancer .[17]
An in vitro study of the effect of CBD on programmed cell death in breast cancer cell lines found that
CBD induced programmed cell death, independent ofthe CBl, CB2, or vanilloid receptors. CBD inhibited
the survival of both estrogen receptor-positive and estrogen receptor-negative breast cancer cell lines,
inducing apoptosis in a concentration-dependent manner while having little effect on nontumorigenic,
mammary cells.[IB]
CBD has also been demonstrated to exert a chemopreventive effect in a mOllse model of colon cancer.
[19] In the experimental system, azoxymethane increased premalignant and malignant lesions in the
mouse colon. Animals treated with azoxymethane and CBD concurrently were protected from
developing premalignant and malignant lesions. In in vitro experiments involving colorectal cancer cell
lines, the investigators found that CBD protected DNA from oxidative damage, increased
endocannabinoid levels, and redl1ced cell proliferation.
Another investigation into the antitumor effects of CBO examined the role of intercellular adhesion
molecule-l (ICAM-l).[12] ICAM -1 expression has been reported to be negatively correlated with cancer
metastasis. In lung cancer cell lines, CBD up regulated ICAM-I, leading to decreased cancer cell
invasiveness.
In an in vivo model using severe combined immunodeficient mice, subcutaneous tumors were generated
by inoculating the animals with cells from human non-small cell lung carcinoma celllines.[20] Tumor
growth was inhibited by 60% in THC-treated mice compared with vehicle-treated control mice. Tumor
specimens revealed that T HC had antiangiogenic and anti proliferative effects. However, research with
immunocompetent murine tumor models has demonstrated immunosuppression and enhanced tumor
growth in mice treated with THC.[21,22]
In addition, both plant-derived and endogenous cannabinoids have been studied for anti-inflammatory
effects. A mouse study demonstrated that endogenous cannabinoid system signaling is likely to provide
intrinsic protection against colonic inflammation. [23] As a result, a hypothesis that phytocannabinoids
and endocannabinoids may be useful in the risk reduction and treatment of colorectal cancer has been
developed.[24 -27]
Appetite Stimulation
Many animal studies have previously demonstrated that delta-9-THC and other cannabinoids have a
stimulatory effect on appetite and increase food intake. It is believed that the endogenous cannabinoid
system may serve as a regulator of feeding behavior. The endogenous cannabinoid an and amide potently
enhances appetite in mice.[28] Moreover, CBl receptors in the hypothalamus may be involved in the
motivational or reward aspects of eating.[29]
RJN P. 3
Analgesia
Understanding the mechanism of cannabinoid-indnced analgesia has been increased through the study
of cannabinoid receptors, endocannabinoids, and synthetic agonists and antagonists. The CB1 receptor
is found in both the central nervous system (CNS) and in peripheral nerve terminals. Similar to opioid
receptors, increased levels of the CB1 receptor are found in regions of the brain that regulate nociceptive
processing. [30] CB2 receptors, located predominantly in peripheral tissue, exist at very low levels in the
CNS. With the development of receptor-specific antagonists, additional information about the roles of
the receptors and endogenous cannabinoids in the modulation of pain has been obtained.[31,32]
Cannabinoids may also contribute to pain modulation through an anti-inflammatory mechanism; a CB2
effect with cannabinoids acting on mast cell receptors to attenuate the release of inflammatory agents,
such as histamine and serotonin, and on keratinocytes to enhance the release of analgesic opioids has
been described.[33-3S] One study reported that the efficacy of synthetic CB1- and CB2-receptor
agonists were comparable with the efficacy of morphine in a murine model of tumor pain.[36]
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395 (6700): 381-3, 1998. [PUBMEDAbslraclj
32. Walker JM, Huang SM, Strangman NM, et al.: Paio modulation by release of the endogenolls
cannabinoid anandamide. Proc Natl Acad Sci USA 96 (21): 12198-203, 1999.
33. Facci L, Dal Toso R, Romanello S, et al.: Mast cells express a peripheral cannabinoid receptor with
differential sensitivity to anandamide and palmitoylethanolamide. Proc Natl Acad Sci USA 92
(8): 3376-80, 1995. [PUBMEDAbslracl)
34. Ibrahim MM, Porreca F, Lai J, et al.: CB2 cannabinoid receptor activation produces
antinociception by stimulating peripheral release of endogenous opioids. Proc Natl Acad Sci USA
102 (8): 3093-8,2005. (PUBMEDAbslraclj
35. Richardson JD, Kilo S, Hargreaves KM: Cannabinoids reduce hyperalgesia and inflammation via
interaction with peripheral CB1 receptors. Pain 75 (1): 111-9,1998. [PUI3MEDAbstraclj
36. Khasabova lA, Gielissen J, Chandiramani A, et al.: CB1 and CB2 receptor agonists promote
analgesia through synergy in a murine model of tumor pain. Behav Pharmacol22 (5-6): 607-16,
2011. (PUI3MEDAbstractJ
RJN P. 7
EXHIBIT 2
RJN P. 8
(12) United States Patent
Hampson ct 01.
(54) CANNABINOmS AS ANTIOX]J)ANTS ANt>
NEUROPROTECTANTS
(75) (OVCOh)l'l;: Altl"R.I. HIiIUPSULl. Ir .... ille . :A (U::;
Julius Axrlnld. RockviUc, MD (US);
Maurl'LIo GrilrolldL Bethesda, MD
(US)
(73) A:s$ignee: Unllcd Sud<'S or America liS
by tht' Dt'plIMml!nl or
He.lllih Dod Humon
W' 'hi nglou. IJC (US)
( N lice: SubjC<.1 10 :t o), d isd :Ufllc r, Ibe lerm of this
palent is elrlended I)r under 35
U.S . . (54(h) by 0 days.
(2 I) App!. Nu. : 09/674,028
(22) PCI Fikd: Apr. 21, 1999
(86) PCT No.: PCTlUS99/01!769
(87)
(60)
(SI,)

(58)
(56)
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PCT Puh, D.lle: Ocl. 28, 1999
R('lmoo U.S. Appllcl.Il.lon I)alo
appl i('3Iion No. 60:'1.18 .589. on Apr. I.
199fl, nnd provi.ional ul'plic:llion No. (1I'1K195,99J, fi kd on
Aug. to, 19118,
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U.S. PAT I'DOCUMENTS
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51 J<l9(i Mt<' floulJl m (:1 ut " ..... 51-1/454
7/1996 Mecfl oulam el al. .. .. ... 511/45.1
'),0' 1997 M{'(houhun <:1 al. "" ... 5Hf 54
12/1997 MlI llrny{'. minc , '1 01. .
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1'ORI;I(i N PATEN r 1)0 . MENT S
427518 AJ 5/ 1901
570357 Al 12/ 1993
656354 AJ 6/ 1995
6S 54(, AI 6/ E>O-,
W09305031 AJ 3/ 1993
W()<)41'2667 Al 0/ 1'>')4
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(to) Patent No.:
(4' i)ate of I)atenl:
US 6,630,507 HI
Oct. 7,2003
PUBLICATIONS
Windhol7. I aI., Th", Indo.-, Tenlh Edilion (1983) p,
241. aoslTacI No. 172],'
(;;1 uJ . "A Tolal SyOlbcsLs or 1I1-t\ "-TI.'lra
bydro '30nabiooL lhe Active Consliluenl o [ Ihshisb I:' l Ollr
1101 of fh l! Jl IIIl!ricnn '/uw/ieol Society, 14::L 7.1-3275
(1 965) .
Me houl:1m el :iI., "Chemical Basis of Hashish ACli,-ily."
Science, 18:6 ll--6 l2 ( 1970).
Ollersen c:1 (II .. -'n)" ryslal , ud Me !celilar Sln,,:: llIr\! llr
CaooJbidiol ," "CIn CI/I!JII. SCfllld, IJ ]1.9:807-812 (1 977).
Cunha CI :II.. "Chronic Admioc Iralion of 10
lJeallby "W,llInlc.(: J'S and Epileptic PlilienL<;\" PhamlflcO/08Y.
21: 175- 1 5 ( 19S0).
on. roc CI "Acule and ehr nic Allliepileptic Drug
Eft'c L') in Audiogcoic Rats." E:rpt!ri.
ml' III n.1 Nl'lIroiog)1 Academic Press Inc .. 70;626-637 (1980),
Turkllllis <: t 31. , -r:;lecl ropbysi ologic Prope(l ies or the (;3n
nahiLl oids., h l. Clin. Pltom/{Kol .. 21 :449S-463 . (1981) ,
arlini CI aI., "Hypnolic ;lDd Elfecls of Coo
nabitl il,II:' l. Cli ft. Plllimlllcol., 21 :41 7S-427S (1 91\ I).
K.Hler e l al.. "Tile aonabinoids I'Olentill l Anliepik p
Ii ," J. Clin.. Pharmacal .. 2 1:437S 48S (19 I).
Con:<.roe CI al.. ;'Anlicpilepric or Cannabidiol Anal
g ' ," l. elil/. PIli/mil/col" 2 1, :42SS-436S (1 q I).
(l. ist conlinued un DeXI page.)
Plim(/ry EX(I/r/in1'T-K.:vin E. WI.'ddio);lOn
(74) Allorney. Agl'lll, or Sparkma n. LLP
(57) ABSTRACT
ha ve been (ouDd to have a. n(iuxid.ml
propcriics. u.orcl alcd to i'lM DA rcccpl or .wHl.goni!.m. lllis
new lound property makes 1l.o,eful in Ih treal-
menl :lOtl proph ylaxi. of wi ele variet y of uxidali 0
aled diseases. such as ischemic. age. relaled. inlhmmatOl),
aDd 311 10io)lll lll)C di.sea!;es. -l1w caunalJi l)old.!' are fou od 10
bave panku\ar applic<.Li on a!< n" lI f ( r example:
in limitjng nClJIo\ogic;il dm;'gc following ischemic ins ul ts.
s uch 35 slIokc Jnd lrauma. or ill Ihe Ireat ment or ncurode
generalivl' .", AS AJzbcimc[' 1> diS(;;lSC. Parkin
son's disease a nd HIV demenli a. NODpsychoacl ive
inoids, such as c;wnahidoi l. are parl icul3rly
tagCQus I I u:.c bccall..."-C lbcy :Ivoid loxidly Ibal b encouo-
Icrctl wi tb psychoac.live cannabinoid:; at high dose- useful in
Ihe method f Ihe presenl inwntio.l . A pdn iClJla( cI
.:laS!' of cannnbin(l id. IL'>Cful as unlioxidan
is formula (I) whcrcio Ihc R group is ind.:pcndcnlly :,elecled
from Ihe g,((IUP <: o. ',;ting of H. CIl", and CO<.:1I
3
.
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RJN P. 9
EXHIBIT 3
RJN P. 10
D Cannabis and Cannabino ...
c @ 1'iWW.cancer.gov/cancertopics/pdq/cam/ cannabis/healthprofessional/page2
~ Web Slice Gallery D Leap - Enterprise Co ... D Other bookmarl<s
Clinical Trials Cancer Statist ics Research & Funding
Cannabis and Cannabinoids (PDO)
Health Profesional Version
Cannabis and
Cannabinoids (PDQ)
Overview
) Ganemllnformation
) History
> Laboralory/AnimallPrecli
nleal Studies
HumanJCllnical Studi es
> Adverse Etleds
, Overall Level of Evidence
Jar Cannabi s and
Cannablnolds
) Changes to This
Summary (03/1712011 )
More Information
> About This P ~ Q
Summary
US Atty letter re OakL. .. pdf
Last Modified: 03/ 171201 1
General Infonnation
CannabIs. also known as manluana originated In Central Asia but IS grown wortdwlde today. In the
Uni ted States. it IS a conlIolied substcnce and is classified as a Schedule I agent (a lIDJ.g W1th Increased
potenUal for abuse and no known medical use). The cannabrsplant produces a reSin conlalnlng
psychoactive romoounds called cannabinoids, The highest concentration of cannabinoids is found In the
female flowers of the planlW As a bo:anlcal Cannabis is difficult to study because of the laex of
standardization of the botanical product due to the many dlmales and environments In which It Is grown,
Clinical trlals conducted on medldnal Cannabis are irmited.
The potenlfal benefils of medicmal CannabiS lor people IJvIng wtth cancer include anbemetic effects.
appetite stimulation. pain relief. and Improved sleep. In the practice of Integrative onrologv the health
care provider may recommend medianal cannabis not only for svmolom management but also for Its
possible direct antitumor effect
Cannablnoids are a group ofterpenophenollc compounds found In Cannabis species (Cannabfs$Il Uva
L and Cannabis Indica Lam.). this summary wlll review the role of Cannabis and the cannablnoi ds In
the treatment of people with cancer and disease-related or treatment-related side effects.
References
1, Adams IB, Martin BR: Cannabis: pharmacology and toxlcology In animals and humans Addi ction
91 (11). 1585-614. 1996. !PUEMEDA!>strsClJ
D Show all downloads... )(
RJN P. 11
EXHIBIT 4
RJN P. 12
u.s. Department of Justice
Offi ce of the Deputy Attorney Genera]
The Deputy Attorney Geru:ral Wasi!i llglon. D.C 2Q5JO
August 29, 2013
MEMORANDUM FOR ALL UNITED ST E S ATTORNEYS
FROM: James M. Cole ~ ~
Deputy Attorney{Jeneral
SUBJECT: Guidance ReQ'arding Mariiuana Enforcement
1n October 2009 and June 2011, the Department issued guidance to federal prosecutors
concerning marijuana enforcement under the Controlled Substances Act (CSA). This
memorandum updates that guidance in light of state ballot initiatives that legalize under state law
the possession of small amounts of marijuana and provide for the regulation of marij uana
production, processing, and sale. The guidance set forth herein applies to all federal enforcement
activity, including civil enforcement and criminal investigations and prosecutions, concerning
marijuana in all states.
As the Department noted in its previous guidance, Congress has detennined that
marijuana is a dangerous drug and that the iUegal distribution and sale afmarijuana is a serious
crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and
cartels. The Department of Justice is corrunitted to enforcement of the CSA consistent with
those determinations. The Department is also committed to using its limited investigative and
prosecutorial resources to address the most significant threats in the most effective, consistent,
and rational way. In furtherance of those objectives, as several states enacted laws relating to the
use of marijuana for medical purposes, the Department in recent years has focused its efforts on
certain enforcement priorities that are particularly important to the federal government:
Preventing the distribution of marijuana to minors;
Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs,
and cartels;
.. Preventing the diversion of marijuana from states where it is legal Wlder state law in
some fonn to other states;
Preventing state-authorized marijuana activity from being used as a cover or pretext for
the trafficking of other illegal drugs or other illegal activity;
RJN P. 13
Memorandum for All United States Attorneys
Subject: Guidance Regarding Marijuana Enforcement
Preventing violence and the use of firearms in the cultivation and distribution of
manJuana;
Preventing drugged driving and the exacerbation of other adverse public health
consequences associated with marijuana use;
Page 2
Preventing the growing of marijuana on public lands and the attendant public safety and
environmental dangers posed by marijuana production on public lands; and
.. Preventing marijuana possession or use on federal property.
These priorities will continue to guide the Department's enforcement of the CSA against
marijuana-related conduct. Thus, this memorandum serves as guidance to Department attorneys
and law enforcement to focus their enforcement resources and efforts, including prosecution, on
persons or organizations whose conduct interferes with anyone or more of these priorities,
regardless of state law. I
Outside of these enforcement priorities, the federal government has traditionally relied on
states and local law enforcement agencies to address marijuana activity through enforcement of
their own narcotics laws. For example, the Department of Justice has not historically devoted
resources to prosecuting individuals whose conduct is limited to possession of small amounts of
marijuana for personal use on private property. Instead, the Department has left such lower-level
or localized activity to state and local authorities and has stepped in to enforce the CSA only
when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of
the harms identified above.
The enactment of state laws that endeavor to authorize marijuana production,
clistribution, and possession by establishing a regulatory scheme for these purposes affects this
traditional joint federal-state approach to narcotics enforcement. The Department's guidance in
this memorandum rests on its expectation that states and local governments that have enacted
laws authorizing marijuana-related conduct will implement strong and effective regulatory and
enforcement systems that will address the threat those state laws could pose to public safety,
public health, and other law enforcement interests. A system adequate to that task must not only
contain robust controls and procedures on paper; it must also be effective in practice.
Jurisdictions that have implemented systems that provide for regulation of marijuana activity
1 These enforcement priorities are listed in general terms; each encompasses a variety of conduct
that may merit civil or criminal enforcement of the CSA. By way of example only, the
Department's interest in preventing the distribution of marijuana to minors would call for
enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also
when marijuana trafficking takes place near an area associated with minors; when marijuana or
marijuana-infused products are marketed in a manner to appeal to minors; or when marijuana is
being diverted, directly or indirectly, and purposefully or otherwise, to minors.
RJN P. 14
Page 3
must provide the necessary resources and demonstrate the willingness to enforce their laws and
regulations in a manner that ensures they do not undennine federal enforcement priorities.
In jurisdictions that have enacted laws Jegatizing marijuana in some fonn and that have
also implemented strong and effective regulatory and enforcement systems to control the
cultivation, distribution, sale, and possession ofmarijuana, conduct in compliance with those
laws and regulations is less likely to threaten the federal priorities set forth above. Indeed, a
robust system may affmnatively address those priorities by, for example, implementing effective
measures to prevent diversion of marijuana outside of the regulated system and to other states,
prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds
criminal enterprises with a tightly regulated market in which revenues are tracked and accounted
for. In those circumstances, consistent with the traditional allocation of federal-state efforts in
this area, enforcement of state law by state and local law enforcement and regulatory bodies
should remain the primary means of addressing marijuana-related activity. If state enforcement
efforts are not sufficiently robust to protect against the harms set forth above, the federal
govenunent may seek to challenge the regulatory structure itself in addition to continuing to
bring individual enforcement actions, including criminal prosecutions, focused on those harms.
The Department's previous memoranda specifically addressed the exercise of
prosccutorial discretion in states with laws authorizing marijuana cultivation and distribution for
medical use. In those contexts, the Department advised that it likely was not an efficient use of
federal resources to focus enforcement efforts on seriously ill individuals, or on their individual
caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and
their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other,
and advised that the latter continued to be appropriate targets for federal enforcement and
prosecution. In drawing this distinction, the Department relied on the common-sense judgment
that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana
trafficking implicates the federal enforcement priorities set forth above.
As explained above, however, both the existence of a strong and effective state regulatory
system, and an operation's compliance with such a system, may allay the threat that an
operation's size poses to federal enforcement interests. Accordingly, in exercising prosecutorial
discretion, prosecutors should not consider the size or commercial nature of a marijuana
operation alone as a proxy for assessing whether marijuana trafficking implicates the
Department's enforcement priorities listed above. Rather, prosecutors should continue to review
marijuana cases on a case-by-case basis and weigh all available information and evidence,
including, but not limited to, whether the operation is demonstrably in compliance with a strong
and effective state regulatory system. A marijuana operation's large scale or for-profit nature
may be a relevant consideration for assessing the extent to which it undermines a particular
federal enforcement priority. The primary question in all cases - and in all jurisdictions - should
be whether the conduct at issue implicates one or more of the enforcement priorities listed above.
RJN P. 15
Page 4
As with the Department's previous statements on this subject, this memorandum is
intended solely as a guide to the exercise of investigative and prosecutorial discretion. This
memorandum does not alter in any way the Department's authority to enforce federal law,
including federalla. ws relating to marijuana, regardless of state law . Neither the guidance herein
nor any state or local law provides a legal defense to a violation of federal law, including any
civil or criminal violation of the CSA. Even in jurisdictions with strong and effective regulatory
systems, evidence that particular conduct threatens federal priorities will subject that person or
entity to federal enforcement action, based on the circumstances. This memorandum is not
intended to, does not, and may not be relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or criminal. It applies prospectively to the
exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of
enforcement action with a basis for reconsideration of any pending civil action or criminal
prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence
of anyone of the factors listed above, in particular circumstances where investigation and
prosecution otherwise serves an important federal interest.
cc: Mythili Raman
Acting Assistant Attorney General, Criminal Division
Loretta E. Lynch
United States Attorney
Eastern District of New York
Chair, Attorney General's Advisory Committee
Michele M. Leonhart
Administrator
Drug Enforcement Administration
H. Marshall Jarrett
Director
Executive Office for United States Attorneys
Ronald T. Hosko
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation
RJN P. 16
EXHIBIT 5
RJN P. 17
MEMORANDUM FOR UNITED ST A
PROM: James M. Cole
Deputy Attorn
ATTACBKKNT E
us. Department of Justice
Office of !he Deputy Attorney General
June 29. 2011
. ~
SUBJECT: Guidance Regarding the Ogden Memo in Iurisdictions
Seeking to Aurhorize Marijuana for Medical Use
O ~ r the Isst several months Borne of YOIl have reQuemd the Department' 5 assistance in
respooding to inquiries from State and local governments seeking guidance nbout the
Department's position on enforcement of the Controlled Substances Act (CSA) in jurisdictions
that have under consideration, or have implemented, legislation that would sanction and regulate
the commercial cultivation and distribution of marijuana purportedly for medical use. Some of
lhe.se jurisdictions have C<lnsidered approving the cultivation of large quantities of marijuana, or
broadening the regulation Blld taxation of the substance. You may ltave seen letters responding
to these inquiries by several United States Attorneys. Those letters are entirely consislent with
the October 2009 memorandum issued by Deputy Attorney General David Ogden 10 federal
prosecutors in States that have enacted laws authorizing the medical use of marijuana (the
"Ogden Memo").
The Departmenl of Justice is committed to the enforcement of the Controlled Substances
Aet in all States. Congress has delennined thai marijuana is II dangerous drug and that the illegal
distribution and sale ofmarijoana Is a serious crime chat provides II significant so= of revenue
10 large scale criminal enterprises, gangs, and cartels. The Ogden Memorandwn provides
guid8Jlce to you in deploying your resources to enforce the CSA as part of the exercise of the
broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some fonn of legislation relating to the medical use of
marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant
troffickers of illegal drugs. including marijuano, remains a core prioriI)', bUI advised that it is
likely not an effielent use of federal resources 10 focus enforcement efforts on Individuals with
C9JJcer or other serious illnesses who use marijuana as part of a recommended treatment regimen
consistent with applicable state law. or their caregivers. The term "caregiver" as used in the
memorandum meant just that: individuals providing care to individuals with cancer or other
serious illnesses, not commercial operations cultivating, selling Or distributing marijURna.
The Department's view of the efficient usc of lim ited federal resources lIS articulated in
the Ogden Memorandum has not changed. There has, however, been an increase in the scope of
RJN P. 18
Memorandum for United Stlltes Attorneys
Subject: Guidance Regarding the Ogden Memo in Jurisdictions
Seeking to Authorize Marijuana for Medical Use
Page 2
commercial cultivation, sale, distribution and use of marijuana for purported medical purposes.
For exampl e, within the past 12 months, several jurisdictions have considered or enacted
legislation (0 authorize multiple large-scale, privately-operated industrial marijuana cultivation
centers. Some of these planned facilities have revenue projections of millions of dollars based
on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandwn was never intended to shield such activities from federal
enforcement netion and prosecution, even where those activities purport to comply with slate
law. Persons who are in the business of cultivating, selling or distributing marijuana, and those
who knowingly facili late such acti vities, are in \jolation of the Conl.rolled Substances Act,
regardless of slate law. Consistent with resource' constraints Illld the discretion you may exercise
in your district, such persons are subject to federal enforcement action, including potential
prosecution. State laws or local ordinances arc not a defense to civil or criminal enforcement of
federal law with respect to such conduct, including enforcement of the eSA. Those: who engage
in transactions involving the proceeds of such activity may also be in violation of federal money
laundering statutes and oilier federal financial laws.
The Department of Justice is tasked with enforcing existing federal criminal laws in all
states, and enforcement offhe CSA has long been and remains 8 core priority.
cc: Lanny A. Breuer
Assistllllt Attorney General, Criminal Division_
B. Todd Jones
United States Al10mey
District of Minnesota
Chair, AGAC
Michele M. Leonhart
Administrator
Drug Enforcement AdminiSlrlllion
H. Marshall Jarrett
Director
Kevin L. Perkins
Assistant Director
Criminal Investigative Divislon
Federal Bureau of Investigations
RJN P. 19
EXHIBIT 6
RJN P. 20
u.s. Department of Justice
Office of the Depuly Attorney General
October 19, 2009
STATES A TTORNCYS
fROM: David W.
Deputy Attorney General
SLJ8JECT: Investigations and Prosecutions in States
Authorizing the Medical Use of Marijuana
This memorandum provides clarification and guidance to federal prosecutors in States
that have enacted laws authoriLing the medical lise of marijuana. These laws vary in their
substantive provisions and in the extent of Slate regulatory oversight, both among the enacting
States and among local jurisdictions within those States. Rather than developing different
guiucl ines for every possible variant of state and local law, this memorandum provides uniform
gUidance to focus federal investigations and prosecutions in these States on core federal
enforcement priorities.
The Depal1ment of Justice is committed to the enforcement of the Controlled Substances
Act in all SWtes. Congress has determined that marijuana is a dangerous drug, anu the illegal
distribution and sale of marijuana is a serious crime and provides a significant source of revenue
to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the
importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in
the Pnited States remains the single largest source of revenue for the ivlexican cartels.
The Depru1ment is also committed to making efficient and rational use of its limited
inVL'stigative ,md prosccutorial resources. In general, United States Attorneys are vested with
"plenary authority with regard [0 federal criminal matters" within their districts . USAM 9-2.001 .
[n exercising this authority, United States Attorneys are "invested by statute and delegation from
the Attorney (Jeneral \,vith (he broadest discretion in the of such authority." Jd. This
authority should, of course, be exercised consistent with Department rriorities and guidance.
The prosecution of signiticant traffickers of i I kgal drugs. including marijuana, and the
uisruption 0[" illegal drug rnnnllfacturing and trafficking networks continues to be a core priority
in the Derarunent's effurts against narcolics and dangerolls drugs. and the Department's
investigative and prosecutorial resources should be directed towards these objectives. As a
gt:neral matter, pursuit of these priorities should not focus federal resources in your States on
RJN P. 21
Memorandum for Selected United States Attorneys Page 2
Subject: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
individuals whose actions are in clear and unambiguous compliance with existing state laws
providing for the medical use of marijuana. For example, prosecution of individuals with cancer
or other serious illnesses who llse marijuana as part of a recommended treatment regimen
consistent with applicable state law, or those caregivers in clear and unambiguous compliance
with existing state law who provide such individuals with marijuana, is unlikely to be an efficient
use of limited federal resources. On the other hand, prosecution of commercial enterprises that
unlawfully market and sell marijuana for profIt continues to be an enforcement priority of the
Department. To be sure, claims of compliance with state or local law may mask operations
inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement
should not be deterred by such assertions when otherwise pursuing the Department's core
enforcement priorities.
Typically, when any of the following characteristics is present, the conduct will not be in
clear and unambiguous compliance with applicable state law and may indicate illegal drug
trafficking activity of potential federal interest:
un I awf1l\ possession or unlawful use of firearms;
violence;
sales to minors;
financial and marketing activities inconsistent with the terms, conditions, or purposes of
state law, including evidence of money laundering activity and/or financial gains or
excessive amounts of cash inconsistent with purported compliance with state or local law;
amounts of marijuana inconsistent with purported compliance with state or local law;
illegal possession or sale of other controlled substances; or
ties to other criminal enterprises.
Of course, no State can authorize violations of federal law, and the list of factors above is
not intended to describe exhaustively when a federal prosecution may be warranted.
Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not
expected to charge, prove, or otherwise establish any state law violations. Indeed, this
memorandum does not alter in any way the Department's authority to enforce federal law,
including laws prohibiting the manufacture, production, distribution, possession, or use of
marijuana on federal property. This guidance regarding resource allocation does not "legalize"
marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any
privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or
witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous
compliance with state law or the absence of one or all of the above factors create a legal defense
to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a
guide to the exercise of investigative and prosecutorial discretion.
RJN P. 22
Memorandum for Selected Uruled Slales Attorneys Page 3
Subject: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
Finally, nothing herein precludes investigation or prosecution where there is a reasonable
basis to believe that compliance with state law is being invoked as a pretext for the production or
distribution of marijuana for purposes not authorized by state law. Nor does this guidance
preclude investigation or prosecution, even when there is clear and unambiguous compliance
with existing state law, in particular circumstances where investigation or prosecution otherwise
serves important federal interests.
Your oftices should continue to review marijuana cases for prosecution on a case- by-case
basis, consistent with the guidance on resource allocation and federal priorities set forth herein,
the consideration of requests for federal assistance from state and local law enforcement
authorities, and the Principles of Federal Prosecution.
cc: All United States Attorneys
Lanny A. Breuer
Assistant Attorney General
Criminal Division
B. Todd Jones
District of Minnesota
Chair, Attorney General's Advisory Committee
Michele M. Leonhart
Acting Administrator
H. Marshall Jarrett
Director
Kevin L. Perkins
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation
RJN P. 23
EXHIBIT 7
RJN P. 24
CQ CONGRESSI ONAL TRANSCRI PTS
CongressIOnal Hearing
Oec. 8, 2011
House Judiciary Committee Holds Hearing on Oversight of the
Justice Department
LIST OF PANEL MEMBERS AND WITNESSES
SMITH:
The Judiciary Committee will come to order.
Without objection, the chair is authorized to declare recesses of the commillee at any time. I'm
going to recognize myself for an opening statement, then the ranking member, Ihe gentleman
from Michigan, then the gentleman from California, Mr. Issa, Ihen the gerlleman from Virginia,
Mr Scott Then we will proceed to hearing from the attorney general.
Attorney General Eric Holder appeared before the House Judiciary Commillee last May, and we
appreciate his willingness 10 appear today to address many issues, including questions about his
previOUS testimony.
While I am pleased 10 welcome back Attorney General Holder, I am disappointed in the
department's repeated refusal to cooperate with this committee's oversight request.
This lack of cooperation is evident in the deparlmenl's handling of inquiries related to the Bureau
of Alcohol, Tobacco, Firearms and Explosives' Operation Fast and Furious and the death of
Border Patrol Agent Bnan Terry in December 2010. And inconSistent statements from
department officials about who knew wllat and when have only raised more concerns.
I'm also disappOinted in how Ihe departmenl has responded to my oversight request regarding
Justice Kagan's involvement In health care legislation or related litigation white she served as
United States solicitor general. Despile claims from Obama administration officials that then
Solicitor General Kagan was walled off from diSCUSSions regarding the presidenl's health care
law, recenlly released e-mails indicate there may be more to Ihe story
On March 21st, 2010, an e-mail from the depuly solicilor general forwarded to Solicitor General
Kagan contained information about a meeting at the While House on Ihe health care law and
asked, "I think you should go. No, I Will regardless, but feel thiS is liligation of Singular
importance." Solicitor General Kagan responded by asking him for his phone number
We also know from the e-malls that she personally supported the legislation's passage. In a
March 21 st, 2010, exch<lnge with a Juslice Department colleague discussing the health care
legislation, Ms. Kagan exclaims, "I hear Ihey have the voles, Larry. Simply amaz.ing "
SMITH:
These e-malls reveal Inconslslencles WIth Ihe administration's claims Ihallhe SOlicitor General
Kagan was walled off from the Issue.
To help clear up any confusion, I wrole the Justice Department 10 get additional documenls and
conduct staff inteNiews. It took nearly four months before the department sent a one-page
response thai denied my request
The department did not assert any legal privilege ove, the requested information but simply
refused 10 comply wilh the request That IS not a suffIcient answer
Health care legislation was passed by the Senate on December 24th, 2009. On January 8, 2010,
Ms. Kagan lold a depuly sollcllor generallhat she definitely would like the Office of the Solicitor
General to be Involved In preparalions 10 defend against challenges 10 the pending health care
proposals. Ms. Kagan found out she was being considered for a polential Supreme Court
vacancy on March 5th, 2010
So the issue is how inVOlved was she in heallh care discussions between January 8 and March
5. Just as President Nixon had an 18 and an half minute gap, does Ms. Kagan have a two-
month gap?
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RJN P. 25
The Judiciary Committee will come to order.
Before we resume our questioning, I'd like to welcome the newest member of the committee,
Jared Polis, from the 2nd district of Colorado.
Congressman Polis was Just appOinted yesterday to fill a vacancy on the committee. And we are
happy to welcome him back. He was on the committee for several years and is back on now.
He also serves on the Rules Committee and the House Democratic Steering and Policy
Committee And at our next meeting we'll even go into more details aboul Mr. Polis, but we
welcome him today.
And we'll be recognizing you Immediately for questioning.
POLIS:
Thank you so much, Mr Chairman.
I'd like to draw your attention, Mr AlIorney General , to the Issue surrounding the regulation of
medical marijuana. I wanted to first clarify, there's a memo dated October 19th. 2009, from David
Ogden -- I'm sure you're familiar with that memo -- the contents of that memo as adVISOry to the
states is still in force. Is thai correct , that is still a current memo?
HOLDER:
Yes.
POLIS:
OK. Thank you. And one of the Issues that was later clarified in a memo by James Cole is what
we're talking about when we're talking about caregivers, who your memo Instructs should not be
an enforcement priority. The Colorado constitution, in Article 14, happens to have a definition of
caregiver. It's further refined in our Colorado statutes
And I wanted to see whether I can get your assurance that our defi nition of caregiver in our
state's constitution will be given some deference by Ihe U.S. attorney general's office.
HOLDER.
I'm not (amiliar with the proviSion, but what we said In the memo we stili Intend, which is that,
given the limited resources that we have, and if there are stales that are -- that have medi cal
marijuana proVISions, and If you take Into account the Cole memo, If In fact people are not UStna
the policy decision that we have made to use marijuana in a way that's not consistent with the
state statute, we will not use our flmlted resources in that way
And so.
POLIS
Sure
HOLDER:
. I don't know I assume that I just don't know about that provision.
POLIS:
And, again, yeah, In the case of Colorado, we do have definitions of some of the terms in your
documents in our -- in our constitution, and I would hope that the U.S attomey general for the
state would look at that.
Now, <IS you know, the Depnrtment of Justice recently announced a crackdown in Califomia.
Now, part of the Issue there, It's my understanding, they did not have a functional state level
regulatory authority
Colorado does have an extensive state regulatory and licenSing system for medical marijuana,
and I'd like to ask whether our state regulation, our thoughtful state regulation, passed with
strong bipartisan majorities in both chambers of our legislature, provide any additional protection
to Colorado from federal intervention.
HOLDER:
Well, again, I'd have to -- I'm not familiar with it, but I'd have to look at it. But, agai n, our thought
was that where a state has taken a position, has passed a law, and people are acting in
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RJN P. 26
conformity with a law, nol abusing Ihe law but acting in conformity with It , and, agam, given our
limited resources, that would not be an enforcement pnonty for the Justice Department.
POLIS
Thank you I'm grateful for thai clarification
One of the> issues that many of the legal regulated medical marijuana shops and dispensaries In
Colorado have brought to my attention IS their inability to open bank accounts at most FDIC
instilulions. That makes the industry harder for the state to track, to tax, to regulate, and in fact
makes it prone to robberies because it becomes a cash business as well.
Is there any intention of the Department of the Justice to prosecute bankers for dOing busmess
with licensed and regulated medical manJuana providers In the states?
HOLDER:
Again, I thmk that, consistent with the notion that how we use our hmlted resources, again, If the
bankers, the people seeking to make the depOSits are acting In conformity with state law, that
would not, again, be an enforcement policy for -- for the Justice Department.
POLIS'
Thank you.
Moving on 10 another issue, with regards to Internet piracy, as you know, the Judiciary
Commillee recently held hearings on SOPA, SlOp Online Piracy Act I had many concerns with
lhis bitt, including a overly broad definilion of infringement.
As you know, there IS a 101 of content on the Internet In fact, as an examJle, on YouTube alone
there's 100 hours of Video that's uploaded every minute. Many of thiS -- many of the Videos that
have been uploaded contain some type of nghts infringement with no intent for commercial gain.
I ask, with the substantial new powers that would be granted to the attorney general's office
under SOPA, what type of resources woutd the Department of Justice need to handle the
hundreds of millions of prosecutions thai would be necessary and Indicated under SOPA?
HOLDER.
Well, I think that you have to look at whallhe -- what powers we would be granted, and then
how we would use our resources. Nol every malter, though it might be a technical Violation of a
statute, is something that we are going to use our resources going against t mean, if there's a
YouTube upload of something that is nol intended for commercial use an::! we don't think there IS
any great harm, that's not the kind of things that we're going to be going afler.
POLIS
So it's fair to say, given otherwise the absence of tens or hundreds of billions of dollars of
resources to go after anybody, there would be selective enforcement of the Stop Online Piracy
Act from the attorney general's office?
HOLDER:
Well, selective enforcement always -- you know, a prosecutor, get a lillie -- a lillte nervous saying
that phrase. But it would be an appropriate use of our resources, taking into account what the
harm is and always with the thought thai we're trying to do is to protect the abuse of copyrighted
material.
POLIS:
Thank the gentleman. And just nole that, with regard to the selective enforcement, there IS not
currently Criteria In the bill, so that would be at the discretion of your office to decide what type of
selective enforcement of that law and the new powers would be given 10 the attorney general
under that would entail, and I'll yield back the balance of my time.
SMITH:
OK. Thank you, Mr. Polis.
The gentlemen with South Carolina, Mr. Gowdy.
GOWDY:
Thank you, Mr. Chairman.
Mr. Holder, Assistant Attorney General Ronald Weich wrote a leller to a member of Congress
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RJN P. 27
respond
With regard to the question of wiretap information, as Mr Gowdy knows, there's only so much
I'm gOing to be able to say about wiretap information. So reading It should not lead anybody to
believe that I'm gOing 10 be free unless I want to get in real trouble with a federal judge about
what's contained in a wiretap
(CROSSTALK)
(UNKNOWN)
Mr. Chair')
SMITH:
Thank you, Mr. Attorney
Mr, Attorney General, thank you for your testimony today
Without obJection. all members will have five legislative days to submit additional written
questions for the witness or additional matenals for the record,
I ask unanimous consent that the gentleman from Colorado, Mr, POliS, be assigned to the
Subcommittee on Courts, Commercial and Administrative Law and the Subcommittee on Crime,
Terrorism and Homeland Security, Is there an objection? If not, so ordered,
The hearing IS adjourned.
CO Transcriptions, Dec, 8, 2011
List of Panel Members and Witnesses
PANEL MEMBERS:
REP LAMAR SMITH, R-TEXAS CHAIRMAN
REP, F, JAMES SENSENBRENNER JR., R-WIS,
REP, HOWARD COBLE, R-N,C,
REP ELTON GALLEGLY, R-CALtF
REP ROBERT W GOODLATTE. R-VA
REP, DAN LUNGREN, R-CALtF,
REP, DARRELL ISSA, R-CALIF.
REP, J. RANDY FORBES, R-VA.
REP, STEVE KING, R-IOWA
REP TRENT FRANKS, R-ARtZ
REP, LOUtE GOHMERT, R-TEXAS
REP, JIM JORDAN. R-OHtO
REP TED POE. R -TEXAS
REP, JASON CHAFFETZ, R-UTAH
REP. DENNIS A. ROSS. R-FLA.
REP STEVE CHABOT. R-OHIO
REP, MIKE PENCE, R-IND,
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RJN P. 28
REP. TIM GRIFFIN, R-ARK
REP TOM MARINO, RPA
REP, TREY GOWDY, RS,C,
REP. SANDY ADAMS, R-FLA.
REP, BEN QUAYLE, RARIZ,
REP. JOHN CONYERS JR, DMICH RANKING MEMBER
REP. HOWARD L BERMAN, D-CALIF.
REP, JERROLD NADLER. D-N,Y,
REP. ROBERT C. SCOTT, D-VA.
REP. MELVIN WATT, D-N C.
REP ZOE LOFGREN, D-CALIF.
REP. SHEILA JACKSON LEE, D-TEXAS
REP, MAXINE WATERS. DCALIF
REP, STEVE COHEN, D-TENN,
REP.HANKJOHNSON,D-GA
RES. CMMSR. PEDRO R PIERLUISI, D-P R
REP, MIKE QUIGLEY, O-ILL.
REP, JUDY CHU, O-CALlF,
REP, TED DEUTCH, D-FLA.
REP LINDA T. SANCHEZ, D-CALIF.
REP. DEBBIE WASSERMAN SCHUL T2, O-FLA.
REP, ADAM B, SCHIFF, O-CALIF.
REP, BLAKE FARENTHOLD, R-TEXAS
REP, JARED POLIS, DCOLO.
REP, MARK AMOOEI, R-NEV,
WITNESSES:
ATIORNEY GENERAL ERIC H. HOLDER JR
Source: CQ Transcriptions
All matenals herein are proeecred by United States copy"ghc law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without ehe pnor wrifCen permission of CQ Transcriptions.
You may nor aleer or remove any trademark, copyflghr or ocher nonce from copies of [he contene.
20U CQ Roll Call All Rights Reserved.
http://www.cq.com/doC/congresslOnaltranscnpts-3996282?print=true[7/11/201210:03:55 AM)
RJN P. 29
EXHIBIT 8
RJN P. 30
1
2
3
4
EXCERPTS FROM "NEWS MAKERS", KABC, JULY 28. 2013
ANDRE BIROTTE, JR., U.S. ATTORNEY
MR. BIROTTE: We have made clear that we believe many dispensaries in Los Angeles are
5 violating the Controlled Substances Act but we have been strategic in how we have sought to enforce that
6 we have targeted dispensaries that we believe violate even the spirit of the state law.
7
8 MR. BIROTTE: I think [the John Walker conviction is] a perfect example of how we utilize
9 our resources to target individuals that we would argue clearly were not in the vision when we talk about
10 the Compassionate Use Act.
11
12 MR. BIROTTE: I would argue that the Compassionate Use Act was designed for a caregiver
13 and patients in a small co-op if you will- not mass Starbucks [unintelligible] stores type systems -- that
14 we have seen here in this district.
15
16 MR. BIROTTE: And we have been consistent in targeting those dispensaries that we think
17 violate not only federal law but state law as wel1.
18
19 MS. ALPERS: Now we have of course restricted the number of dispensaries in Los Angeles
20 by voter approval to the original about 150 - and we always like to use the statistic that there are still
21 more of these than Starbuck's in L.A. - so where does that resolve itselfwith enforcement?
22 MR. BIROTTE: Arguably it's irrelevant as it relates to our enforcement - I mean - because
23 we believe they all violate the Controlled Substances Act. You know - obviously - we are still reviewing
24 that list but I don't think that is going to change much what our strategic plans is as it relates to our
25 enforcement efforts.
26
27
28
EXCERPTS - "NEWSMAKERS" - ANDRE BIROTTE, JR (7-28-2013) - 1
RJN P. 31
EXHIBIT 9
RJN P. 32
(!tongrelli of t ~ e linHeb $tatez
lmIul3.11ingtol1, Em 20515
The Honorable Eric H. Holder, Jr.
A ttorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
November 16,2012
The Honorable Michele M. Leonhart
Administrator
8701 Morrissette Drive
Springfield, VA 22152
Dear Attorney General Holder and Administrator Leonhart:
We are writing to urge federal law enforcement to consider carefully the recent decisions by the
people of Colorado and Washington to legalize small amounts of marijuana for personal use by
adults. Under the new laws, each state will establish a comprehensive regulatory scheme
governing the production, sale and personal use of marijuana. We believe that it would be a
mistake for the federal government to focus enforcement action on individuals whose actions are
in compliance with state law.
We are concerned that the Department of Justice (DOJ) and the Drug Enforcement
Administration (DEA) continue to threaten individuals and businesses acting within the scope of
their states' laws on the medicinal use of marijuana despite formal guidance on exercising
prosecutorial discretion. These actions contradict assurances made by DOJ in 2009 that the
Department would not prioritize criminal charges against 'those who act in compliance with state
law. It is also a poor use oflimited federal resources. We hope your agencies will not take a
similar approach with regard to individuals and businesses who comply with Colorado's and
Washington's new laws, each of which were approved with overwhelming public support.
As Supreme Court Justice Louis Brandeis once observed, states are the laboratories of
democracy. The people of Colorado and Washington have decided that marijuana ought to be
regulated much like alcohol, with strong and efficient regulation of production, retail sales, and
distribution, coupled with strict laws against underage use and driving while intoxicated. The
voters chose to eliminate the illegal marijuana market controlled by cartels and criminals and
recognized the dlsproportionate impact that marijuana prohibition has on minorities. These states
have chosen to move from a drug policy that spends millions of dollars turning ordinary
Americans into criminals toward one that will tightly regulate the use of marijuana while raising
tax revenue to support cash-strapped state and local goverrunents. We believe this approach
embraces the goals of existing federal marijuana law: to stop international trafficking, deter
domestic organized criminal organizations, stop violence associated with the drug trade and
protect children.
PRINTED ON RECVCLED PAPER
RJN P. 33
While we recognize that other states have chosen a different path, and further understand that the
federal government has an important role to play in protecting against interstate shipments of
marijuana leaving Colorado or Washington, we ask that your Departments take no enforcement
action against anyone who acts in compliance with the laws of Colorado, Washington and any
other states that choose to regulate access to marijuana for medicinal or personal use. The voters
of these states chose, by a substantial margin, to forge a new and effective policy with respect to
marijuana. The tide of public opinion is changing, both at the ballot box and in state legislatures
across the country. We believe that the collecti ve judgment of voters and state lawmakers must
be respected. Thank you for your attention to this important matter.
teve Cohen
Member of Congress
Diana DeGette
Member of Congress
Barney Frank
Member of Congress
Member of Congress
Sincerely,
Ed Perlmutter
Member of Congress

/" Earl Blumenauer
Member of Congress
Adam Smith
Member of Congress
RJN P. 34

SamFarr
Member of Congress

Chellie Pingree
Member of Congress

arbara Lee
Member of Congress

Mike Honda
Member of Congress
Robert C. "Bobby" Scott
Member of Congress
1k.; ....

Member of Congress
Dennis Kucinich
Member of Congress
'jalva
Member of Congress
RJN P. 35
RJN P. 36
EXHIBIT 10
RJN P. 37

Mr. Michael Krawitz
3551 Flatwoods Road
Elliston, VA 24087
Dear Mr. Krawitz:
DEPARTMENT OF VETERANS AFFAI RS
UNDER SECRETARY FOR HEALTH
WASHINGTON DC 20420
M. 06 2010
This is a follow-up response to your letter requesting clarification of the
Veterans Health Administration's (VHA) policy regarding the practice of prescribing
opioid therapy for pain management for Veterans who provide documentation of the
use of medical marijuana in accordance with state law.
If a Veteran obtains and uses medical marijuana in a manner consistent with
state law. testing positive for marijuana would not preclude the Veteran from
receiving opioids for pain management in a Department of Veterans Affairs (VA)
facility. The Veteran would need to inform his provider of the use of medical
marijuana, and of any other non-VA prescribed medications he or she is taking to
ensure that all medications, including opioids, are prescribed in a safe manner.
Standard pain management agreements should draw a clear distinction between the
use of illegal drugs, and legal medical marijuana. However, the discretion to
prescribe, or not prescribe, opioids in conjunction with medical marijuana, should be
determined On clinical grounds, and thus will remain the decision of the individual
health care provider. The provider will take the use of medical marijuana into
account in all prescribing decisions, just as the provider would for any other
medication. This is a case-by-case decision, based upon the provider's judgment,
and the needs of the patient.
Should you have further questions, please contact Robert Kerns, PhD.
National Program Director, New England Healthcare System at (203) 932-5711.
extension 3841.
RJN P. 38
EXHIBIT 11
RJN P. 39
Department of Veterans Affairs
Veterans Health Administration
Washington, DC 20420
VHA DIRECTIVE 2011-004
January 31, 2011
ACCESS TO CLINICAL PROGRAMS FOR VETERANS
PARTICIPATING IN STATE-APPROVED MARJJUANA PROGRAMS
1. PURPOSE: This Veterans Health Administration (VHA) Directive provides policy
regarding access to clinical programs for patients participating in a State-approved marijuana
program.
2. BACKGROUND
a. Department of Veterans Affairs (VA) providers must comply with all Federal laws,
including the Controlled Substances Act. Marijuana is classified as a Schedule I drug under the
Controlled Substances Act.
b. Veterans who receive their care from VA and who have a desire to participate in one of
several State marijuana programs might ask their VA physicians to complete State authorization
forms.
c. State laws authorizing the use of Schedule I drugs, such as marijuana, even when
characterized as medicine, are contrary to Federal law. The Controlled Substances Act (Title 21
United States Code (U.S.C.) 801 et al.) designates Schedule I drugs as having no currently-
accepted medical use and there are criminal penalties associated with production, distribution,
and possession of these drugs. State law has no standing on Federal properties.
d. VHA policy does not administratively prohibit Veterans who participate in State
marijuana programs from also participating in VHA substance abuse programs, pain control
programs, or other clinical programs where the use of marijuana may be considered inconsistent
with treatment goals. While patients participating in State marijuana programs must not be
denied VHA services, the decisions to modify treatment plans in those situations need to be
made by individual providers in partnership with their patients. VHA endorses a step-care model
for the treatment of patients with chronic pain: any prescription(s) for chronic pain needs be
managed under the auspices of such programs described in current VHA policy regarding Pain
Management.
3. POLICY: It is VHA policy to prohibit VA providers from completing forms seeking
recommendations or opinions regarding a Veteran's participation in a State marijuana program.
4. ACTION
a. Deputv Under Secretarv for Health for Operations and Management (ION). The
Deputy Under Secretary for Health for Operations and Management is responsible for ensuring
that medical facility Directors are aware of the prohibition of completing forms for participation
in State marijuana programs.
b. Chief Officer Patient Care Services. The Chief Officer Patient Care Services is
responsible for providing clinical guidance to V A providers regarding factors to be considered
TIDS VHA DIRECTIVE EXPIRES JANUARY 31, 2016
RJN P. 40
when determining how substance abuse, pain control, or other treatment plans could be impacted
by a Veteran's participation in State marijuana programs.
c. Medical Facility Director. Each medical facility Director is responsible for ensuring
facility clinical staff are aware:
(1) Of the prohibition of completing forms for participation in State marijuana programs.
(2) If a Veteran presents an authorization for marijuana to a VA provider or pharmacist, V A
will not provide marijuana nor will it pay for it to be provided by a non-VA entity. NOTE:
Possession oj marijuana, even jar authorized medical reasons, by Veterans while on V A property
is in violation oj VA regulation 1.218(a)(7) and places them at risk jar prosecution under the
Controlled Substances Act.
(3) That if a patient reports participation in a State marijuana program to a member of the
clittical staff, that information is entered into the "non-VA medication section" of the patient's
electronic medical record following established medical facility procedures for recording non-
VA medication use.
5. REFERENCES
a. Office of General Counsel (OCG) Opinion on State Medical Marijuana Registration
Forms - VAOPGCADV 9-2008.
b. Title 21 U.S.c. 801 et ai, the Controlled Substances Act.
6. FOLLOW-UP RESPONSIBILITY: Pharmacy Benefits Management Services (119) is
responsible for the content of this Directive. Questions may be directed to (202) 461-7326.
7. RECISSIONS: VHA Directive 2010-035 is rescinded. This VHA Directive expires
January 31, 2016.
Robert A. Petzel M.D.
Under Secretary for Health
DISTRlBUTION: E-mailed to the VHA Publication Distribution List 2/4/2011
RJN P. 41
EXHIBIT 12
RJN P. 42
3/25/2011 District of Columbia Official Code
D.C. Council Home Home Search HelD
Term Best Section
DC ST 7-1671.05
elc . me to the online so ce or t e
istrict of Co um ia Official . ode
DC ST 7-1671.05
7-1671.05. Medical marijuana program.
District of Columbia Officia I Code 2001 Edition Cu rre ntness
Division 1. Government of District.
Title 7. Human Health Care and Safety. (Refs & Annos)
Subtitle G-li. Use of Marijuana for Medical Treatment.
Chapter 16B. Use of Marijuana for Medical Treatment .
... 7-1671.05. Medical marijuana program.
The re is established a medical marijuana program, which shall regulat e the manufacture, cultivation;
distri bution, dispensing, purchase, delivery, sale, possess ion, and administ ra t io n of medica l marijuana
and the manufacture, possession, purchase, sa le, and use of paraphern alia . The Program shall be
administered by the Mayor and shall :
(l)(A) Require the registration with the Department of all:
(i) Qualifying patients; and
(ii) Ca re give rS; and
(B) As part of the registration process, require a qualifying patient to:
(i) Designate the dispensary from which the qualifying patient will receive medical marijuana;
provided, that the qualifying patient may change the designation with 14 days written notice to the
Department; and
Oi) Provide a copy of the physician's recommendation for the qualifying patient's use of medical
marijuana;
(2) Require the registration of all:
(A) Dispensaries;
(B) Cultivation centers; and
(C) Directors, officers, members, incorporators, agents, and employees of dispensaries and cultivation
centers;
(3) Issue nontransferable registration identification cards that expire annually to registered persons
and entities, which may be presented to and used by law enforcement to confirm whether a person or
entity is authorized to administer, cultivate, dispense, distribute, or possess medical marijuana, or
manufacture, possess, or distribute paraphernalia;
(4) Require all dispensaries and cultivation centers to:
(A) Maintain true, complete, and current records of the following:
(i) The name, address, home telephone number, and date of birth of each employee;
(ii) A record of each tra nsaction, including:
(I) The quantity of medical marijuana distributed or dispensed;
(II) The consideration given for the medical marijuana; and
(III) The recipient of the medical marijuana;
(iii) The quantity of medical marijuana at the dispensary or cultivation center;
(iv) The disposal method used for any medical marijuana that was CUltivated or acquired but not
sold, including evidence of the disposal of the medical marijuana; and
(v) Any other information required by the Mayor;
(B) Notify the Chief of the Metropolitan Police Department in writing and immediately of the loss, theft,
or d estructio n of any med iea I ma rijua na ;
(5) Require all dispensaries to maintain true, complete, and current records of:
(A) The name and address of the qualifying patient authorized to obtain the distribution or dispensing
of medical marijuana; and
(B) The name and address of the caregiver who receives the medical marijuana;
webl inks. westlaw.co m/. . ./ defa ult.aspx? ..
RJN P. 43
(6) Develop educational materials about potential harmful drug interactions that could occur from using
med ical marijuana concu rre ntly with othe r medical treatments and the importance of informing hea lth
care providers and pharmacists of the use of medical marijuana to help avoid harmful drug interactions;
(7) Revoke or suspend the registration of any person or entity if the Mayor determines that the person
or entity has violated a provision of this chapter or the rules issued pursuant to 7-1671.13;
(8) Conduct announced and unannounced inspections of dispensaries and cultivation centers;
(9) Establish sliding-scale registration and annual renewal fees for all persons and entities required to
register pursuant to this chapter; provided, that the registration and annual renewal fees for
dispensaries and cultivation centers and for the directors, officers, members, incorporators, agents, and
employees of dispensaries and cultivation centers shall be sufficient to offset the costs of administering
this chapter;
(10) Esta blish a system to provide for the safe and affordable dispensing of medica l marij uana to
qualifying patie nts who are unable to afford a sufficient supply of medica l marijuana based upon the
qualifying pa t ient's income and existing financia l resources that :
(A) Allows qualifying patients to apply to the Mayor to be eli gible to purchase medical marijuana on a
sliding scale from dispensaries; and
(B) Requires each dispensary to devote a percentage of its gross revenue, as determined by the
Mayor, to providing medical marijuana on the sliding scale to qualifying patients determined eligible
pursuant to subparagraph (A) of this paragraph;
(11) Submit to the Council an annual report that does not disclose any identifying information about
qualifying patients, caregivers, or physicians, but that includes:
(A) The number of applications filed for a registration identification card;
(B) The number of qualifying patients and caregivers registered;
(C) The qualifying medical condition or qualifying medical treatment for each qualifying patient;
(D) The number of registration identification cards suspended and the number revoked; and
(E) The number of physicians providing written recommendations for qualifying patients;
(12) Establish standards by which applicants for dispensary and cultivation center registration will be
evaluated to determine which applicants will be accepted for registration and renewal of registration,
which shall include the following fadors:
(A) Knowledge of District and federal law relating to marijuana;
(B) Suitability of the proposed facility;
(C) A proposed staffing plan;
(D) A security plan that has been assessed by the Metropolitan Police Department;
(E) A cultivation plan; and
(F) A product safety and labeling plan;
(13)(A) Provide notice through the mail to all Advisory Neighborhood Commissions in the affected ward
at least 30 days prior to approval of a location for a dispensary or cultivation center; and
(B) Accord great weight to input provided by the Advisory Neighborhood Commission regarding the
proposed location of a dispensary or cultivation center when approving or rejecting an application for
reg istration; and
(14) Require caregivers and qualifying patients to notify the Department immediately and in writing of
the loss, theft, or destruction of a registration identification card.
CREDIT(S)
(Feb. 25, 2010, D.C. Law 13-315, 6, as added July 27, 2010, D.C. Law 18-2ID, 2, 57 DCR 4798.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For Law 18-210, see notes following 7-1671.01.
DC CODE 7-1671.05
Current through January 11, 2011
Copyrig ht 2011 By the District of Columbia. All Rights Reserved.
END OF DOCUMENT
Term Best Section
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RJN P. 44
D.C. Council Home Home Search HelD
elc . me to the online so ce or t e
istrict of Co um ia Official . ode
DC ST 7-1671.06
7-1671.06. Dispensaries and cultivation centers.
Term Best Section
DC ST 7-1671.06
District of Co lumbia Officia I Code 2001 Editio n Cu rre ntne ss
Division 1. Government of District.
Title 7. Human Health Care and Safety. (Refs & Annos)
Subtitle G-li. Use of Marijuana for Medical Treatment.
Chapter 16B. Use of Marijuana for Medical Treatment .
... 7-1671.06. Dispensaries and cultivation centers.
(a) Notwithstanding any other District law, a dispensary may possess med ical marijuana for the purpose
of dispensing the medica l marijuana to a qualifying patient or ca regiver and may manufactu re, purchase,
possess, distribute, and use paraphernalia, in accordance wit h this chapter and the rules issued
pursuant to 7- 1671.13.
(b) Notwithstanding any other District law, a cultivati on ce nter may cultivate and possess medical
marij uana for the purpose of distribution to a dispensary and may manufacture, purchase, possess, and
use paraphernalia in accordance with this chapter and the rules issued pursuant to 7-1 67 1.1 3.
(c) A dispensary may dispense medical marijuana and distribute paraphernalia to a qualifying patient or
the qualifying patient's caregiver, and a qualifying patient or the qualifying patient's caregiver may obtain
medical marijuana and paraphernalia from a dispensary, only if the qualifying patient is registered to
receive medical marijuana from that dispensary.
(d)(l) Each dispensary and cultivation center shall be registered with the Mayor prior to manufacturing,
cultivating, dispenSing, possessing, or distributing medical marijuana, or manufacturing, possessing,
using, or distributing paraphernalia.
(2) No more than 5 dispensaries shall be registered to operate in the District; provided, that the Mayor
may increase the number to as many as 8 by rulemaking to ensure that qualifying patients have
adequate access to medica I mari]ua na.
(3) The number of cultivation centers that may be registered to operate in the District shall be
determined by rulemaking.
(e)(l) A dispensary may not dispense more than 2 ounces of medical marijuana in a 30-day period to a
qualifying patient, either directly or through the qualifying patient's caregiver; provided, that the Mayor,
through rulemaking, may increase the quantity of medical marijuana that may be dispensed to up to 4
ounces.
(2) A cultivation center shall not possess more than 95 living marijuana plants at any time.
(3) It shall be unlawful for a dispensary to dispense or possess more than the quantity of medical
marijuana needed to support the number of qualifying patients or caregivers registered to receive
medical marijuana at that dispensary, as determined by the Mayor pursuant to rules issued under 7-
1671.13; provided, that the Mayor may allow a dispensary to possess a higher quantity of medical
marijuana in antiCipation of additional qualifying patients or caregivers registering.
(f) No marijuana or paraphernalia at a dispensary or a cultivation center shall be visible p!-lblic or
weblinks.westlaw.com/. . ./default.aspx?.. RJN P. 45
other property.
(g) A dispensary or cultivation center shall not locate within any residential district or within 300 feet of a
preschool, primary or secondary school, or recreation center.
(h) Each dispensary and cultivation center shall:
(1) Be either a for-profit or nonprofit corporation incorporated within the District;
(2) Implement a security plan to prevent the theft or diversion of medical marijuana, including
maintaining all medical marijuana in a secure, locked room that is accessible only by authorized
persons; and
(3) Ensure that all of its employees receive training on compliance with District law, medical marijuana
use, security, and theft prevention.
(i) Each dispensary shall regularly distribute to all qualifying patients and caregivers the educational
materials regarding potential harmful drug interactions developed as part of the Program.
(j) No director, officer, member, incorporator, agent, or employee of a dispensary or cultivation center
who has access to the medical marijuana at the dispensary or cultivation center shall have:
(1) A felony conviction; or
(2) A misdemeanor conviction for a drug-related offense.
(k) A person found to have violated any provision in this chapter shall not be a director, officer, member,
incorporator, agent, or employee of a dispensary or cultivation center, and the registration identification
card of the person shall be immediately revoked and the registration of the dispensary or cultivation
center shall be suspended until the person is no longer a director, officer, member, incorporator, agent,
or employee of the dispensary or cultivation center.
CREDIT(S)
(Feb. 25, 2010, D.C. Law 13-315, 7, as added July 27,2010, D.C. Law 18-210, 2,57 DCR 4798.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For Law 18-210, see notes following 7-1671.01.
DC CODE 7-1671.06
Current through January 11, 2011
Copyright 2011 By the Distnct of Columbia. All Rights Reserved.
END OF DOCUMENT
Term Best Section
2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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RJN P. 46
EXHIBIT 13
RJN P. 47
111 TH CONGRESS} {
lSi Session HOUSE OF REPRESENTATfVES
REpORT
111-202
FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS BILL. 2010
Jtn..y 10, 2009,--Committed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. SERRANO, from the Committee on Appropriations,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany H.R. 3170J
The Committee on Appropriations submits the following report in
explanation of the accompanying bill making appropriations for fi-
nancial services and general govemmen t for the fiscal year ending
September 30, 2010.
INDEX TO BILL AND REPORT
Introduction ........................ . ......... ... .. ... .. ... ... ... ... .. ... ... . .. .
Major priorities . .. ............................................ .. ... ... .. .. .. .. ... ... , .. .. .. .. ..
Terminations, reductions, and other savings .......................................... .
Operating plan and reprop:amming procedures ....... ... ... .. .. ... ... ... .. .. ... ... .
Program, project, and actlVlty ................................................................. ..
Title I-Department of the Treasury ..................................................... ..
Title II-Executive Office of the President and Funds Appropriated to
the President ., .. ,., ,., .. , .... , ,., .. ,., ,., .... , .. , ...... , .... ,., .. , .. , .. ,., .... , ,., ,., .. , .. ,., .. , .. ,.,'
Title III-The Judiciary .................... ........... ... ... .. ..... ... ... ... ... .. .... .. .... .. . .. .
Title IV-District of Columbia ........................................... .. ... ... .. .
Title V-Independent Agencies. . .................................... ...... .. .. ... ..... .
Ad mini strative Con ference of the Un ited States ....... ...... .. ... ... .... .. . .
Consumer Product Safety Commission ...................... ... ... .. ... ... .. ... ... .
Election Assistance Commission .................... .................................. .
Federal Communications Commission ................ ....... ... ... ...... .......... .
Federal Deposit Insurance Corporation ....... ... ... ... ... .. ..... ... ... ... ... .. ... .
50-859
Page TUjmber
Bill Reporl
2
3
8
8
9
2 10
20 29
34 41
43 49
57 57
57 57
57 57
58 59
59 61
60 63
RJN P. 48
8
ing fOT new IRS agents to target wealthy individuals and busi-
nesses who seek to avoid U.S. taxes by parking money overseas.
At the same time, the bill ensures an adequate level of funding
for IRS Taxpayer Services to ensure that taxpayers are able to re-
ceive assistance from the IRS-in person, over the phone, or on the
IRS web site-when filling out tax forms and filing returns. The
bill continues funding for Tax Counseling for the Elderly sites and
provides increases above the request for the IRS Taxpayer Advo-
cate Service, grants to low-income taxpayer clinics, and community
volunteer income tax assistance grants.
MEETING RESPONSIBILITIES TO THE NATION'S CAPITAL CITY
The Financial Services and General Government bill also makes
appropriations for the District of Colwnbia. The city and its citi-
zens bear a number of additional burdens-as well as enjoying ben-
efits-because of Washington's role as the Nation's capital, and this
bill provides modest assistance to the District in recognition of that
role. Among other things, the measure continues special assistance
to improve education in both public and charter schools in the Dis-
trict, and also adopts the President's proposal for a limited continu-
ation of the school voucher program to avoid disrupting the edu-
cation of students currently in the program. While reducing or
eliminating some payments to the District, the Committee also pro-
vides new payments to address certain high-priority needs: aiding
the homeless, helping youth disconnected from school or work, and
slowing the spread of HIV/AlDS.
The bill also take further step towards reducing undue congres-
ional interference in local affairs and eliminating restrictions on
the District that do not apply to other parts of the Nation . As re-
quested by the President, the bill eliminates the prohibition on use
of locally raised funds for abortion-thereby placing the District in
the same position as each of the 50 states in that regard. The
measure also eliminates a ban on use of funds for domestic part-
nership registration and benefits and a ban on use of funds for nee-
dle exchange programs, and allows the District to conduct and im-
plement a referendum on use of marijuana for medical purposes,
as has been done in valious states.
TERMINATIONS, REDUCTIONS AND OTHER SAVINGS
In order to invest in the critical priori ties identified in this bill,
and in an effort to build an economy on a solid foundation for
growth and put the Nation on a path toward prosperity, the Com-
mittee has proposed herein a number of program terminations, re-
ductions, and other savings from the fiscal year 2009 level totaling
$599 million. In addition, $425 million in other program termi-
nations, reductions, and other savings from the budget request are
recommended. These adjustments, no matter their size, are imI?or-
tant to setting the right priorities within the spending allocatIOn,
for getting the deficit under control, and creating a government
that is as efficient as it is effective.
OPERATING PLAN AND REPROGRAtVlMING PROCEDURES
The Committee will continue to evaluate reprogrammings pro-
posed by agencies. Although reprogrammings may not change ei-
RJN P. 49
107
Section 807. The Committee continues the provision prohibiting
the use of Federal funds to provide salaries or other costs associ-
ated with the offices of United States Senator or Representative.
Section 808. The Committee continues the provision that re-
stricts the use of official vehicles to official duties and not between
a residence and workplace, with certain exceptions.
Section 809. The Committee continues the provision that pro-
hibits the use of Federal funds by the Attorney General of the Dis-
trict or any other officer or entity of the District government to pro-
vide assistance for any petition drive or civil action which seeks to
require Congress to provide for voting representa tion in Congress
for the District of Columbia.
Section 810. The Committee continues the provision that in-
cludes a "conscience clause" on legislation that pertains to contra-
ceptive coverage by health insurance plans.
Section 811. The Committee modifies the provision relating to
medical marij uana so that it prohibi ls only the use of Federal
funds and does not continue to suspend implementation of the Le-
galization of Marijuana for Medical Treatment Initiative of 1998.
Section 812. The Committee modifies the provision prohibiting
use of funds for abortion so that it applies only to Federal and not
local funds.
Section 813. The Committee adds a new provision at the request
of the District of Columbia requiring the CFO to submit a revised
operating budget for all agencies in the D.C. government, no later
than 30 calendar days after the enactment of this Act that realigns
budgeted data with anticipated actual expenditures.
Section 814. The Committee adds a new provision at the request
of the District of Columbia requiring the CFO to submit a revised
operating budget for D.C. Public Schools, no later than 30 calendar
days after the enactment of this Act that realigns school budgets
to actual school enrollment.
Section 815. The Committee continues the provision authorizing
the transfer of local funds to capital and enterprise funds.
Section 816. The Committee includes a provision to limit the geo-
graphic location of needle exchange programs in the District of Co-
lumbia.
Section 817. The Committee continues the provision which limits
references to "this Act" as referring to only this title and title IV.
The Committee has not continued the prohibitions on use of Fed-
eral funds for implementation of D.C. employee health benefits for
domestic partners or any system of domestic partnership registra-
tion.
The Committee notes that the following sections of title VIII of
the Financial Services and General Government Appropriations
Act, 2009 made permanent changes in law and therefore are not
repeated in this year's bill: Sections 808, 814, 816, 817, 818, 822,
and 823.
HOUSE OF REPRESENTATIVES REPORT REQUIREMENTS
The following items are included in accordance with various re-
quirements of the Rules of the House of Representatives.
RJN P. 50
M1NORITY VIEWS OF THE HONORABLE JERRY LEWIS AND
THE HONORABLE JO ANN EMERSON
The Subcommittee has jurisdiction over a diverse group of agen-
cies which perform activities such as regulating the financial and
telecommunications industries; collecting taxes and tax-
payer assistance; supporting the operations of the WhIte House, the
Federal Judiciary, and the District of Columbia; managing Federal
buildings; and overseeing the Federal workforce. With the 302(b)
allocation provided to Chairman Serrano, he has done an out-
standing job in distributing funds to the various agencies in the
bill.
F1SCAL SUSTAINABILITY
However, the $24.15 billion allocation provided to the Sub-
committee is much too large. It is a 7 percent or $1.6 billion in-
crease above the current year, excluding stimulus funding. This is
a very generous allocation which allows most agencies in the bill
to be funded at or above the rate of inflation. We believe the re-
source requirements of the agencies funded in this bill can be met
with a smaller allocation, especially given the Federal govern-
ment's financial situation.
Recently, Federal Reserve Chairman Bernanke stated "unless we
demonstrate a strong commitment to fiscal sustainability in the
longer term, we will have neither financial stability nor healthy
economic growth." In a June report on the Long-Term Budget Out-
look, the Congressional Budget Office stated that "U ndeT current
law, the federal budget is on an unsustainable path-meaning that
federal debt will continue to grow much faster than the economy
over the long run." The Administration's own budget documents
state that the Federal debt held by the public will be 68.5 percent
of Gross Domestic Product by 2014. This is the highest percentage
of Federal debt to GOP since 1950.
Providing a 7 percent increase in funding for a bill that primarily
funds general government agency operating accounts, not programs
or grants, does not represent a commitment to fiscal sustainability.
Growing the Federal bureaucracy will not stimulate the economy.
However, it will increase Federal borrowing-increasing interest
rates, slowing our recovery, and increasing the financial burden
placed on our children and grandchildren.
TERMrnATIONS AND REDUCTIONS
Materials posted to the Committee website by the Majority sug-
gest that the bill saves $599 million from the fiscal year 2009 en-
acted bill and $425 million from the fiscal year 2010 budget request
through program terminations and reductions. However, it must be
pointed out that these are not true savings. The bill provides a $1.6
billion increase over fiscal year 2009 level, excluding supplemental
(173)
RJN P. 51
175
OPPORTUNITY SCHOLARSHIPS
Unfortunately, the Obama Administration's request and this bill
include language to slowly phase out the District of Columbia (DC)
Opportunity Scholarship Program (OSP) and reduce academic
choice for low-income DC residents. Specifically, the bill only allows
students currently participating in the program to continue to re-
ceive a scholarship. How does a parent explain how one child is
able to go to the school of their choice while their other children
must go to a failing public school, especially when we know the DC
public schools are still struggling to reform?
In May, Chancellor Rhee stated "The reality in Washington,
D.C., is that we continue to fail the majority of kids who are put
in our care everyday." According to the Washington Post, 90 of the
123 public schools in the District are under some form of Federal
notice to improve under the No Child Left Behind Law and less
than 50 percent of DC high school students graduate in 4 years.
More than 7,400 DC residents signed a petition asking for the Op-
portunity Scholarship program to be reauthorized. At the Financial
Services and General Government Subcommittee hearing on DC,
the Mayor and the Council Chairman both stated they would con-
sider adding siblings to the program.
Unfortunately, despite the facts that DC public schools are
underperforming and DC residents support the program, Repub-
lican amendments in Committee to expand the number of low-in-
come students eligible to participate in the program were defeated.
DISTRICT OF COLUMBIA RIDERS
Another area of the bill that deeply concerns us is controversial
changes to long-standing general provisions regardi ng the District
of Columbia. We strongly oppose these changes. We do not believe
increasing the availability of abortions or medical marijuana will
improve the District of Columbia.
REGULAR ORDER
While we have been pleased to have a wonderful working rela-
tionship this year with Chairman Serrano, we are disappointed
that the bipartisanship at the Subcommittee level is not continuing
through the rest of the appropriations process.
We recognize that operating under an open rule during floor con-
sideration of appropriations bills is grueling, long, and hard work.
But that is democracy. That is regular order. And, we urge our col-
leagues to support a return to a process where every Member has
an opportunity to have their voice heard.
RJN P. 52
176
This year the Financial Services and General Government appro-
priations bill is very controversial. Not only does the proposed bill
spend more than $24 billion but it proposes to change long-stand-
ing policies on issue uch as abortion and medical marijuana. It
is the responsibility of this Committee and this Congress to allow
each Member of the House of Representatives to improve or alter
the bill in a way that allows them to explain their vote at home.
We urge our colleagues in the Majority to return to regular order
during floor consideration.
JERRY LEWIS.
Jo ANN EMERSON.
o
RJN P. 53
EXHIBIT 14
RJN P. 54
Chairman Vincent C. Gray Councilmember David A. Catania
Councilmember Phil Mendelson
A BILL
IN TI-IE COUNCIL OF THE DISTRICT OF COLUMBIA
1
2
3
4
5
6
7
8
Chairman Gray, and Councilmembers Catania and Mendelson introduced the following bill, 9
which was referred to the Committee on 10
To amend the Legalization of Marijuana for Medical Treatment Initiative of 1998 to define key 11
terms; to limit the use of marijuana for medicinal purposes to qualifying patients; to 12
require written recommendation from one's primary physician as a condition for the J3
medicinal use of marijuana; to clarify who may lawfully manufacture, possess, distribute, 14
or use marijuana; to clarify how a primary caregiver may be designated; to limit the 15
distribution of marijuana for medicinal purposes to registered dispensaries; to require the 16
parent or guardian of a minor that is using marijuana for medicinal purposes to control the 17
minor's use; and to require the Mayor to issue rules to regulate the manufacture, 18
possession, distribution, and use of marijuana for medicinal purposes. 19
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this 20
act may be cited as the "Legalization of Marijuana for Medical Treatment Initiative Amendment 21
Act of2010", 22
Sec. 2. The Legalization of Marijuana for Medical Treatment Initiative of 1998, 23
transmitted on December 21, 2009 (D.C. Act 13-138) is amended as follows: 24
(a) A new Section 2a is added to read as follows: 25
1
RJN P. 55
"Sec. 2a Definitions.
"For purposes of this act, the term: 2
"(1) "Department" means Department of Health for the District of Columbia. 3
"(2) "Medical supply" means the quantity of marijuana that is determined pursuant to 4
section IO(a)(l)(E) of this act. 5
"(3) "Primary physician" means a physician who maintains in good standing a license to 6
practice medicine in the District of Columbia who has primary responsibility for the care and 7
treatment of the qualifying patient. 8
"( 4) "Qualifying patient" means a person who is registered by the Department of Health 9
pursuant section 10(a)(l)(A)(i) of this act.". 10
(b) Section 2 is amended to read as follows: II
"Sec. 2. Permissible Use of Marijuana for Medicinal Purposes. 12
"A \I qualifying patients have the right to obtain and use marijuana for medical purposes 13
when his or her primary physician has provided a written recommendation that bears his or her 14
signature and license number asserting that the use of marijuana to be medically necessary for the 15
patient for the treatment of a qualifying medical condition or to mitigate the side effects of a 16
qualifying medical treatment.". 17
(c) Section 3 is amended to read as follows: 18
"Sec. 3. Exemption to the Uniform Controlled Substances Act, Defenses. 19
"(a) Qualifying patients who use marijuana for medicinal purposes; primary caregivers 20
who obtain marij uana for such patients; and other person authorized to manufacture, possess, and 21
distribute marij uana for medical purposes by this nct do not violate the District of Co lumbia 22
2
RJN P. 56
Uniform Controlled Substances Act of 1981, effective August 5, 1981 (DC Law 4-29; DC Code 1
33-501 et seq.) ("Controlled Substances Act") and are not subject to criminal prosecution or 2
sanction, provided that they are in compliance with this act and the rules created under this act. 3
"(b) The use of marijuana under the authority of this act shall not be a defense to any crime 4
of violence, the crime of operating a motor vehicle while impaired or intoxicated, or a crime 5
involving danger to another person or to the public, nor shall such use negate the mens rea for any 6
offense. 7
"(c) Whoever distributes marijuana cultivated, distributed or intended to be distributed or 8
used pursuant to this act to any person not entitled to possess or distribute marijuana under this act 9
shall be guilty of a crime and subject to the penalty set forth in section 401 (a)(2)(D) of the 10
Controlled Substances Act (DC Code 33-541 (a)(2)(D).". 11
(d) Section 4 is repealed. 12
(e) Section 5 is amended to read as follows: 13
"Sec. 5. Protection of Physicians from Sanction. 14
"N otwithstanding any other law, no physician shall be punished, or denied any right, 15
privilege or registration for recommending, while acting in the course of his or her professional 16
practice, the use of marijuana for medical purposes. In any proceeding in which rights or defenses 17
created by this act are asserted, a physician called as a wi tness shan be permitted to testi fy before 18
a judge, in camera. Such testimony, when introduced in a public proceeding, if the physician 19
wi tness so requests, shall have redacted the name of the physician and the court shall maintain the 20
name and identifying characteristics of the physician under seal.". 21
3
RJN P. 57
"Sec. 6. Scope of Exemption from Criminal Sanction. 1
"(a) Any District law prohibiting the possession of marijuana or cultivation of marijuana 2
shall not apply to a qualifying patient, a qualifying patient's primary caregiver, or other persons 3
authorized to manufacture, distribute. or possess marijuana medical marijuana by this act 4
provided that he or she is in compliance with this act and the rules created under this act. The 5
exemption for cultivation shall apply only to marijuana specifically grown to provide a medical 6
supply for a patient, and not to any marijuana grown for any other purpose. 7
"(b) The prohibition in the Controlled Substances Act against the manufacture, 8
distribution, cultivation, or possession with intent to manufacture, distribute, or cultivate, or 9
against possession, of marijuana shall not apply to a registered dispensary or an employee of a 10
registered dispensary established pursuant to this act, provided that the registered dispensalY and 11
registered employee is in compliance with this act.". 12
"Sec. 7. Designation of Primary Caregivers. 14
"(a) A qualifying patient may designate one licensed health care practitioner, spouse, 15
domestic partner, case manager/worker, or close friend, parent, sibling, child, or other close 16
relative, to serve as a primary caregiver to assist the qualifying patient's medicinal use of 17
marijuana for the purposes of this act. The qualifying patient must register the primary caregiver 18
with the Department in compliance with the requirements of section 10 of this act. 19
"(b) For the purposes of this section, close friend" means a friend who is feeding, 20
nursing, bathing, or otherwise caring for the qualifying patient while the qualifying patient is in a 21
weakened condition.". 22
4
RJN P. 58
(f) Section 8 is repealed. 1
(g) Section 9 is amended to read as follows: 2
"Sec. 9. Application to Minors. 3
"(a) The exemption from prosecution for distribution of marijuana under this act shall not 4
apply to the distribution of marijuana to any person under 18 years of age unless that person is an 5
emancipated minor, or a parent or legal guardian of the minor has signed a written statement that 6
such parent or legal guardian: 7
"( 1) Understands the medical condition of the minor; 8
(2) Understands the potential benefits and potential adverse effects of the use of 9
marijuana generally and in the case of the minor; 10
"(3) Consents to the use of marijuana for the treatment of the minor's medical 11
condition; and 12
"( 4) Either consents to serve as the primary caregiver or designates a person over 13
the age of 18 to serve as the primary caregiver. The primary caregiver for a minor shall control 14
the acquisition, possession, dosage, and frequency of use of marijuana by the minor qualifying 15
patient. 16
"(b) Violation ofthis section shall be subject to the penalties of the Controlled Substances 17
Act.", 18
(h) Section 1 0 is amended to read as follows: 19
"Sec. 10. Rulemaking. 20
5
RJN P. 59
'The Mayor, pursuant to Title I of the District of Columbia Administrative Procedure Act,
approved October 21, 1968 (82 Stat. 1204; D.C. Official Code 2-50 I el seq.), shall issue rules to 2
implement this act. The lules shall: 3
"(1) Create a closed system for the manufacture, distribution, and use of medical 4
marijuana including the following: 5
"(A) Require the following persons to register with the Department which shall 6
issue to each eligible person a registry identification card that can be used by law 7
enforcement to confmTI whether a person is authorized to manufacture, distribute, possess, 8
or use marijuana for medical purposes: 9
"( i) Qual i fying patients; 10
"(ii) Primary caregivers; and 11
H(iii) Employees of registered dispensaries; 12
"(B) Require each dispensary to register with the Department, provided that: 13
"(I) No more than 5 dispensaries may register to conduct business in the 14
District; 15
"(Ii) No person with a midemeanor conviction for a drug-related offense or 16
felony conviction shall own or work for a registered dispensary; and 17
"(Iii) No dispensary is located within 1,000 feet of a school or youth center. 18
"(C) Require each owner and employee of a dispensary to register with the 19
Department; 20
"(D) Require each qualifying patient to register which dispensary from which he or 21
she will receive his or her medical marijuana; 22
6
RJN P. 60
"(E) Detennine what quantity of marijuana constitutes an adequate medical supply 1
of marijuana for a 30 day period and prohibit dispensaries from dispensing more than that 2
quantity to any qualifying patient in any given 30 day period; 3
"(F) Determine what quantity of marijuana a dispensary is permitted to 4
manufacture to ensure that it will be able to provide its patients with an adequate medical 5
supply of marijuana for the qualifying patients registered to receive marijuana from the 6
dispensary. 7
"(G) Determine the quantity of marijuana a dispensary may manufacture in order to 8
provide an adequate medical supply to the number of qualifying patients that the 9
Department anticipates will register in the near future to receive marijuana from each 10
dispensary. 11
"(H) Prohibit dispensaries from manufacturing more than that quani tity of 12
marijuana described in subparagraphs (F) and (G); 13
"(I) Require dispensaries to maintain detailed and accurate medical records that 14
speci fy at least the fa llowing: 15
"(i) The quantity of marijuana the dispensary sold, to whom, and on what 16
date; 17
"(ii) The quantity of medical marijuana the dispensary manufactured; 18
"(iii) How the dispensary disposed of any marijuana that was manufactured 19
but not purchased by a qualifying patient, including evidence of the disposal of the 20
mariJuana. 21
"(1) Require each dispensary to have and implement a security plan to prevent the 22
7
RJN P. 61
theft or diversion of marijuana, including maintaining aU marijuana in a secure, locked 1
room that is accessible only to authorized persons. 2
"(K) Create a fi:amework for regulation and enforcement of the rules, including 3
frequent unannounced inspections of each dispensary to ensure that dispensaries are in 4
compliance with all applicable laws and rules. Any violations of criminal law discovered during 5
an inspection shall be reported to local law enforcement authorities. 6
"(L) Revoke the registration of any dispensary that violates the rules or provisions 7
of this act. 8
"(M) Set a registration and renewal fees for qualifying patients, as well as a sliding 9
scale fee system for qualifying patients experiencing financial hardship based on the qualifying 1 0
patient's family income. The fees collected shall be applied toward the cost of administering this 11
act. 12
"CN) Set a registration and renewal fee for dispensaries that shall be sufficient to 13
offset the expenses related to administering this act. 14
"(2) Establish a list of qualifying medical conditions, which are the medical conditions that 15
result in a medical necessity for the medicinal use of marijuana, and a list of qualifying medical 16
treatments, which are a list of medical treatments which have side effects that result in a medical 17
necessity for the medicinal use of marijuana. In order to be a qualifying medical condition or a 18
qualifying medical treatment, the medical condition or the side effects of the medical treatment 19
shall: 20
"(A) Be chronic or long-lasting, 21
"(B) Be debilitating or interfere with the basic functions of life, and be either: 22
8
RJN P. 62
"(i) Produce intractable pain which does not respond to ordinary medical or 1
surgical measures, or 2
"(ij) Be a serious medical condition that cannot be effectively treated by 3
any ordinary medical or surgical measure. 4
"(3) Require registered dispensaries to regularly distribute to all qualifying patients 5
information created by the Department to education qualifying patients and their caregivers about 6
potential harmful drug interactions while using marijuana for medicinal purposes and the 7
importance of communicating one's use of marij uana to one's heal th care providers, incl uding 8
one's pharmacist, in order to prevent harmful drug interactions. 9
"( 4) Provide for the safe and affordab Ie distribution of marijuana to all qualifying patients 10
who are unable to afford to purchase a sufficient supply of medical marijuana with their CUITent 11
family income and existing resources.". 12
Sec. 3. Applicability. 13
Section 2(a)-(g) shall not apply until the Mayor has issued rules in accordance with section 14
2(h) of this act. 15
Sec. 4. Fiscal Impact Statement. 16
The Council adopts the fiscal impact statement in the committee report as the fiscal impact 17
statement required by section 602(c)(3) of the District of Columbia Home Rule Act, as amended, 18
approved December 24,1973 (87 Stat. 813; D.C. Official Code 1-206.02(c)(3)). 19
Sec. 5. Effective Date. 20
This act shall take effect following approval by the Mayor (or in the event of veto by the 21
Mayor, action by the Council to override the veto), a 3D-day period of Congressional review as 22
9
RJN P. 63
provided in section 602(c)( I) of the District of Columbia Home Rule Act, as amended, approved
December 24, 1973 (87 Stat. 813; D.C. Official Code 1-206.02(c){l)), and publication in the
District of Columbia Register.
10
RJN P. 64
2
3
EXHIBIT 15
RJN P. 65
210 Cal.App.4th 525 (2012)
148 Cal. Rptr. 3d 375
THE PEOPLE, Plaintiff and Respondent,
v.
JOVAN CHRISTIAN JACKSON, Defendant and Appellant.
No. D058988.
Court of Appeals of California, Fourth District, Division One.
October 24,2012.
528*528 Joseph D. Elford, under appOintment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Donald W. Ostertag,
Deputy Attorneys General, for Plaintiff and Respondent.
Bonnie M. Dumanis, District Attorney, Laura Tanney, Craig E. Fisher and Christopher
Lindberg, Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and
Respondent.
529*529 OPINION
BENKE, Acting P. J.-
Defendant and appellant Jovan Christian Jackson was charged with the sale of marijuana
and possession of marijuana for sale. Prior to his trial the People filed a motion under
Evidence Code section 402 for an order preventing him from offering evidence he was
entitled to the defense provided by the Medical Marijuana Program Act (MMPA), Health and
Safety Code
l1l
section 11362.7 et seq., to patients who associate for the purpose of
collectively cultivating medical marijuana.
At the hearing on the People's motion, Jackson testified he and approximately five other
individuals were actively engaged in cultivating marijuana and providing it to themselves
and the approximately 1,600 other members of their medical marijuana
collective. Jackson testified each member of the collective was required to show proof
marijuana had been prescribed to the member by a medical professional for treatment of a
RJN P. 66
medical condition. Jackso,n further testified the collective did not generate any profits for
either himself or the other active participants. Jacksonoffered no testimony with respect to
how the collective was governed.
The trial court found Jac,kson presented sufficient evidence the collective's members were
qualified patients within the meaning of the MMPA and the collective was not operated on a
for-profit basis. However, the trial court found that in light of the large number of members of
the collective, Jackson could not establish the collective was operated for the purpose of
collectively cultivating marijuana within the meaning of the MMPA as opposed to simply
distributing marijuana. Thus, the trial court granted thePeople's motion and
prevented Jackson from offering any defense under the MMPA. Jackson was convicted
and the trial court imposed three years of formal probation.
(1) We reverse Jackson's conviction. In oPPosing the People's motion, Jackson'sburden
was not very great. Jackson was only required to produce evidence which would create a
reasonable doubt as to whether the defense provided by the MMPA had been established.
The defense the MMPA provides to patients who participate in collectively or cooperatively
cultivating marijuana requires that a defendant show that members of the collective or
cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal
purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a
profit-making enterprise. As we interpret the MMPA, the collective or cooperative
association required by the act need not include active participation by all members in the
cultivation process but may be 530*530 limited to financial support by way of marijuana
purchases from the organization. Thus, contrary to the trial court's ruling, the large
membership of Jackson's collective, very few of whom participated in the actual cultivation
process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
However, we also recognize that in determining whether an MMPA defense has been
established, a trier of fact must consider whether the organization operates as a for-profit
enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving
that question, an organization's large membership and governance processes, if any, are
relevant.
As we explain, where, as here, a collective has a large membership, the overwhelming
number of whom do not, in any fashion, participate in the operation or governance of the
collective and there is evidence of a high volume of purchases by the members, a trier of
fact could reasonably conclude that, notwithstandingJackson's testimony to the contrary,
the organization is a profit-making enterprise which distributes marijuana to customers
rather than to members of a nonprofit collective organization and is therefore outside the
RJN P. 67
scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed
that in determining whether Jadkson is entitled to a defense, the jury must determine
whether the collective he participates in is a profit-making enterprise and further that in
resolving that question, it should consider, in addition to other evidence of profit or loss, the
size of the collective's membership, the volume of purchases from the collective and the
members' participation in the operation and governance of the collective.
FACTUAL AND PROCEDURAL BACKGROUND
Jackson has been prosecuted twice with respect to his operation of a medical marijuana
dispensary operating under the name Answerdam Alternative Care (Answerdam). In
2009 Jackson was acquitted of five counts related to the possession and sale of marijuana.
At Jackson's first trial, the jury was instructed with respect to the defense for marijuana
collectives and cooperatives provided by the MMPA, in pertinent part, as follows: "A person
is not gui Ity of the crimes charged in Counts 1-5 if his actions are exempted under the
Medical Marijuana Program. The Medical Marijuana Program provides that qualified
patients [and their designated primary caregivers] may associate within the State of
California in order collectively or cooperatively to cultivate marijuana for medical purposes.
"A qualified patient is someone for whom a physician has previously recommended or
approved the use of marijuana for medical purposes, [ ~ ... [ ~
531*531 "Collectively means involving united action or cooperative effort of all members of
a group.
"Cooperatively means working together or using joint effort toward a common end.
"Cultivate means to foster the growth of a plant.
"If you have reasonable doubt about whether, at the time of the crimes charged in Counts i-
S, the defendant was a qualified patient [or primary caregiver], and that he committed the
crimes solely because he was associating within the State of California in order collectively
or cooperatively to cultivate marijuana, you must find the defendant not guilty."
Following Jackson's first trial, the jury foreman explained the difficulty the jury faced in
determining whether Jackson was entitled to an MMPA defense: "[IJt was all contingent on
the medical marijuana defense and the lack of definition within the state law as far as what
constitutes a collective or a cooperative .... So, um, just for the lack of definition of that state
law was really the key. [111 ... [111 Um, the prosecution gave his ... kind of narrow definition
RJN P. 68
during the, the closing arguments, but there was nothing in the law that really backed that
up."
While the initial charges against Jacikson were still pending, law enforcement agencies
continued to investigate Jackson and Answerdam. Following his acquittal at the first
trial. Jackson was charged in a new information with one count of the sale of marijuana (
11360. subd. (a)) and two counts of possession of marijuana for sale ( 11359). Those
allegations were based on activity which occurred after the conduct which gave rise to the
fi rst tri al.
As we indicated at the outset, prior to trial on the second information, the Peoplemoved
under Evidence Code section 402 for an order preventing Jackson from offering an MMPA
defense. At the hearing the People presented testimony from one of the investigators, who
testified that he never observed any cultivation taking place at the Answerdam dispensary.
The People also offered testimony from a member of the collective. who testified that
although he purchased marijuana at the dispensary, he never saw it being grown there and
he never participated in its cultivation.
For his part Jackson testified at the Evidence Code section 402 hearing that marijuana for
Answerdam was grown at another location, that he and four or five other members of the
collective took part directly in cultivating the marijuana and that each member of the
collective was required to produce a physician's recommendation that he or she use
marijuana to treat a diagnosed 532*532 illness or condition. According to Jackson, at one
time or another approximately 1,676 qualified patients had joined Answerdam by way of
paying a membership fee and signing a membership form. Jackson further testified that
Answerdam was not a profit-making business and that he and others were paid only for the
expenses they incurred in cultivating marijuana and operating the
dispensary. Jackson conceded that there were no meetings of the Answerdam
membership and no attempts to contact them with respect to operation of the collective.
In considering the People's motion, the trial court found there was not enough information
to determine whether Answerdam was operated as a for-profit enterprise and therefore the
trial court would not rely on that factor in ruling on the People'smotion. In nonetheless
granting the motion and excluding evidence of the defense, the trial court stated: "So
assuming there was cultivation going on and that at least some members were involved,
that still leaves us with the evidence that was presented that there were well over
1,000 people involved in this so-called collective or cooperative, and a very, very small
percentage of those - a miniscule percentage was involved in the act of cultivation.
RJN P. 69
"That certainly does not in any way establish that the association was for the purpose of
cultivation. It only establishes that some of the people may have been cultivating. That's
very different. Obviously, as I pointed out, all marijuana is cultivated. If everyone who
distributed marijuana was a cultivator, then there would be no need for the defense.
"It's clear that, as I said, the statute says that the association has to be for the purpose of
cultivating marijuana. There is no evidence in the record that that was the purpose of this
association. Indeed, the evidence points to quite the contrary, that the purpose of the
association was for the distribution of marijuana that was cultivated by others whether or not
members.
"And in my mind, there's no plausible basis on which this defense could go to the jury. It
could not possibly raise a reasonable doubt using the language of [section] 11362.775."
In light of the trial court's ruling on the Peopl'e's mot.ion, at the second trial no evidence with
respect to the MMPA defense was offered and no instruction on the issue was
given. Jackson was, as we indicated, convicted on all three counts and given three years of
formal probation.
533*533 DISCUSSION
(2) We begin our consideration of Jackson's contention the trial court erred in granting
the People's motion by noting the modest burden Jackson bore in opposing
the People's motion. When the closely related defenses to marijuana possession offenses
offered by the CompaSSionate Use Act of 1996 (CUA) ( 11362.5 et seq.) are at issue, the
cases have uniformly held that the defendant need only raise a reasonable doubt as to
whether the elements of the defense have been established. (See, e.g., People v.
Jones (2003) 112 Cal.AppAth 341,350 [4 Cal.Rptr. 3d 916]; see also People v.
Mower (2002) 28 Cal.4th 457, 476-482 [1 22 Cal.Rptr.2d 326,49 P.3d 10671.) The
defendant's limited burden is based on the conclusion that CUA defenses turn on the nature
of the defendant's conduct rather than a collateral matter, such as when an entrapment
defense is offered. (People v. Mower, supra, 28 Cal.4th at pp. 476-482.) Because the
defenses provided by the MMPA, like those set forth in the CUA, relate directly to the nature
of the defendant's conduct as opposed to collateral matters, those defenses only require
that a defendant raise a reasonable doubt as to whether the elements of the defenses have
been proven. In determining whether that minimal burden has been met, "the trial court
RJN P. 70
must leave issues of witness credibility to the jury." (People v. Villanueva(2008) 169
CaI.ARR.4th 41,49 [86 Cal.RRtr.3d 5341.)
II
(3) The court in People v. Col vin (2012) 203 CaI.ARR.4th 1029 [137 Cal.RRtr.3d 856)
(Colvin) recently discussed the defenses offered by the MMPA at some length in a context
very similar to the circumstances set forth in the record here. As the court
inColvin recognized, the defenses provided by the MMPA grow out of adoption by
thepeople of Proposition 215: "In 1996, voters passed Proposition 215, the Compassionate
Use Act of 1996 (CUA; 11362.5). One purpose of the CUA was to 'ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of marijuana in the
treatment' of illnesses for which marijuana provides relief. [Citations.] A second purpose
was to ensure that patients and their primary caregivers who obtain and use medical
marijuana are not subject to criminal prosecution or sanction. [Citation.] The CUA therefore
provided that section 11357, relating to the possession of marijuana, and section 11358,
relating to the cultivation of marijuana, 'shall not apply to a patient, or to a patient's primary
caregiver, who possesses or cultivates marijuana for the personal medical purposes of the
patient' upon a doctor's 534*534 recommendation. [Citation.] The CUA thus provided a
limited immunity from prosecution, including a defense at trial. [Citation.]
"In response to the CUA's encouragement 'to implement a plan to provide for the safe and
affordable distribution of marijuana to all patients' in need of it [citation], our Legislature
enacted the MMPA ( 11362.7 et seq.). Through the MMPA, the Legislature sought to '(1)
[c]larify the scope of the application of the act and facilitate the prompt identification of
qualified patients and their deSignated primary caregivers in order to avoid unnecessary
arrest and prosecution of these individuals and provide needed guidance to law
enforcement officers [,-0 (2) Promote uniform and consistent application of the act among
the counties within the state, [,-r] (3) Enhance the access of patients and caregivers to
medical marijuana through collective, cooperative cultivation projects.' [Citation.] To these
ends, section 11362.775 of the MMPA provides, 'Qualified patients, persons with valid
identification cards, and the designated primary caregivers of qualified patients and persons
with identification cards, who associate within the State of California in order collectively or
cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of
that fact be subject to state criminal sanctions under Section 11357, 11358, 11359,11360,
11366, 11366.5, or 11570.' [Citation.]" (Colvin, supra, 203 CaI.ARR.4th at RR. 1034-1035.)
RJN P. 71
In Colvin the defendant was the operator of two marijuana dispensaries which together had
5,000 members. Based on his transportation of marijuana from one dispensary to the other,
the defendant was charged with the sale or transportation of marijuana as well as with the
possession of concentrated cannabis.
The defendant in Colvin waived a jury trial and at the close of the prosecution case moved
for acquittal, asserting the defense provided by section 11362.775. The trial court found the
defendant was a bona fide patient and that the dispensaries he operated were legitimate
and complied with the MMPA. Nonetheless, the trial court found transportation from one
dispensary to another had nothing to do with cultivation and thus the trial court concluded a
section 11362.775 defense was not avai lable. The trial court then found the defendant guilty
of both marijuana offenses. The Court of Appeal reversed and found that the defense
applied.
In rejecting the trial court's reasoning, the court in Colvin stated: "It is unclear what the trial
court meant when it said that Colvin's transportation of marijuana was unrelated to the
cultivation process and was outside what section 11362.775 allows. There was no evidence
that Colvin's transportation of one pound of marijuana was for anything other than [his
Holistic dispensaries]. To the extent the trial court ruled as it did because it believed
that 535*535 only cooperative or collective cultivators of marijuana can transport the
product, Colvin/Holistic is a cultivator: Holistic has three onsite . grow rooms,' which the
LAPD visited. Fourteen members of Holistic also grow marijuana for Holistic offsite. All of
the marijuana Holistic distributes is from a cooperative member; none of it is acquired from
an outside source. Thus, even under a reading of section 11362.775 limiting transportation
of marijuana only to cooperatives that cultivate it, then Colvin was entitled to the immunity."
(Colvin. supra. 203 Cal. AppAth at p. 1037.)
As an alternative to the trial court's reasoning, the Attorney General argued, as she does
here, "that section 11362.775 does not condone' a large-scale, wholesale-retail marijuana
network' like Holistic, which has approximately 5,000 members. The Attorney General
argues that a collective or cooperative cultivation 'must entail some united action or
participation among all those involved, as distinct from merely a supplier-consumer
relationship.' There must be, the Attorney General suggests. 'some modicum of
collaboration' in which qualified patients and caregivers '''come together'" in 'some way.'"
(Colvin, supra. 203 Cal. App Ath at p. 1037.)
The court in Colvin squarely rejected the Attomey General's argument: "The evidence here
was Holistic obtained its business licenses, was a nonprofit corporation, and was in the
process of complying with then applicable ordinances. The trial court thus found that Holistic
RJN P. 72
was a 'legitimate' dispensary, which implies that the court believed Holistic was complying
with the appropriate laws.
"The Attorney General does not argue otherwise, instead maintaining that a medical
marijuana cooperative seeking the protections of section 11362.775 must establish that
some number of its members participate in the process in some way. The Attorney General
does not specify how many members must participate or in whatway or ways they must do
so, except to imply that Holistic, with its 5,000 members and 14 growers, is simply too big to
allow any 'meaningful' participation in the cooperative process; hence, it cannot be a
'cooperative' or a . collective' in the way section 11362.775 intended. But this interpretation
of section 11362.775 would impose on medical marijuana cooperatives requirements not
imposed on other cooperatives. A grocery cooperative, for example, may have members
who grow and sell the food and run a store out of which the cooperative's products are sold.
But not everyone who pays a fee to become a member participates in the cooperative other
than to shop at it." (Colvin, supra. 203 CaI.ARP4th at RR. 1038-1039.)
In finding the defendant had established the defense, the court in Colvin also noted that in
important respects the defendant and his dispensary had 536*536 complied with
guidelines0 promulgated by the Attorney General: "Holistic, for example, is a nonprofit
registered with the City of Los Angeles in 2007, and Colvin took steps to comply with
applicable ordinances (Guidelines, supra, IV.A.1, 2, B.1, 2, pp. 8, 9 [advising cooperatives
to incorporate under the Corp. Code or Food & Agr. Code and to obtain applicable business
licenses and permits]); Holistic requires members to fill out membership forms, assigns
each member a number to track prescription expiration, and keeps a record of members'
medical problems and each time a member returns (id., IV.B.3, p. 9 [potential members
should complete a written membership application, their status should be verified,
membership records should be maintained, and expiration of prescriptions should be
tracked]); all money Holistic receives from members goes back into the cooperative (id.,
IV.B.5, p. 10 ['[a]ny monetary reimbursement that members provide to the collective or
cooperative should only be an amount necessary to cover overhead costs and operating
expenses']); Holistic bases membership fees on the cost to cover the member's needs
(id'
J
IV.B.6, p. 10 (marijuana may be allocated based on fees that are reasonably
calculated to cover overhead costs and operating expenses]); Colvin was transporting only
one pound of marijuana (id., IV.B.7, p. 10 ['collectives and cooperatives may cultivate and
transport marijuana in aggregate amounts tied to its membership numbers']); and Holistic
employs security measures, namely, it keeps new applicants in a 'primary holding' area and
verifies their information before admitting them and has no more than two to three pounds
of marijuana on the premises at any given time (id., IV.B.8, p. 11 [collectives and
cooperatives should take security measures to protect patients and surrounding
RJN P. 73
neighborhoods]). Thus, to the extent these guidelines have any weight, they contemplate
cooperatives like Holistic." (Colvin, supra, 203 Cal.AppAth at pp. 1040-1041 .)
(4) The court in Colvin also relied on the holding in People v. Urziceanu (2005) 132
Cal.AppAth 747, 785 [33 Cal.Rptr.3d 859] (Urziceanu) . In Urziceanu the court found that a
defendant was entitled to an instruction on the MMPA defense notwithstanding the fact that
his marijuana collective had several hundred members. In doing so the court stated section
11362.775 represents "a dramatic change in the prohibitions on the use, distribution, and
cultivation of marijuana for persons who are qualified patients or primary caregivers .... Its
specific itemization of the marijuana sales law indicates it contemplates the formation and
operation of medicinal marijuana cooperatives that would receive reimbursement for
marijuana and the services 537*537provided in conjunction with the provision of that
marijuana." (Urziceanu. supra. 132 Cal.AppAth at p. 785.)
The Attorney General asks that we reject the relatively broad interpretation of the MMPA
adopted by the courts in Colvin and Urziceanu. However, as was the case inColvin, the
Attorney General is unable to point to any portion of the MMPA itself which suggests the
Legislature intended to put any numerical limits on the size of a collective or cooperative. As
the court in Colvin recognized, there is nothing in the MMPA which suggests where such a
numerical limit should be placed and in any event a numerical limit would be somewhat at
odds with one of the express purposes of the MMPA, to wit: enhancing access to medical
marijuana. (Stats. 2003, ch. 875, 1(b), pp. 6422-6423.)
(5) The only authority the Attorney General offers, People ex reI. Trutanich v. Joseph(2012)
204 Cal. AppAth 1512. 1523 [140 Cal.Rptr.3d 91. does not consider the express terms of the
MMPA, but Simply makes the conclusory statement that section 11362.775 "does not cover
dispensing or selling marijuana." That statement is of course inconsistent with the Attorney
General's own guidelines, which appear to contemplate that collectives and cooperatives
will dispense marijuana and that there will be an exchange of cash consideration. (See
Guidelines, supra, IV.B.5, p. 10.) It is also inconsistent with the Legislature's recent
addition of section 11362.768 to the MMPA. Section 11362.768 provides that "a medical
marijuana cooperative, collective,dispensary, operator, establishment, or provider that is
authorized by law to possess, cultivate, or distribute medical marijuana and that has a
storefront or mobile retail outlet which ordinarily requires a local business license" may not
be located with in a 600-foot radius of a school. ( 11362.768, su bd. (e), italics added.) In
enacting this limitation, the Legislature seemed to express its understanding that contrary to
the court's statement in People ex reI. Trutanich v. Joseph, the MMPA permits retail
dispensaries.
RJN P. 74
The Attorney General's Guidelines and the adoption of section 11362.768 also foreclose
adoption of the even narrower interpretation offered by the district attorney in her amicus
curiae brief. The district attorney argues that all members of a collective or cooperative must
actively participate in cultivation of marijuana to bring the organization within the terms of
section 11362.76. Such a strict limitation on the means by which authorized collectives and
cooperatives provide medical marijuana to their members is entirely inconsistent with the
conduct permitted under the Attorney General's Guidelines and expressly contemplated in
the Legislature's most recent amendments to the MMPA.
538*538 III
(6) Given the limited burden placed on Jackson at the Evidence Code section 402 hearing
and the holding in Colvin, with which we agree, we must conclude the trial court erred in
granting the People's motion. In this regard we place particular emphasis on the trial court's
express unwillingness to determine whether Answerdam was operated for profit. Assuming
then, as did the trial court, that Answerdam was not operated for profit, and
accepting Jackson's testimony that all members were qualified medical marijuana patients,
the fact Answerdam has a large membership did not prevent Jackson from offering a
defense under section 11362.775. Jackson presented enough evidence to raise a
reasonable doubt as to whether Answerdam was a collective or cooperative project within
the meaning of section 11362.775.
In light of Jackson's acquittal in the first trial, at which an MMPA defense instruction was
given, there can be no serious dispute that the failure to permit him to 'Offer such a defense
at the second trial was prejudicial and that we must therefore reverseJackson's conviction.
IV
Because an MMPA defense will no doubt arise in any further proceedings in this case, as
well as others, and because the parameters of the MMPA defense have not been set forth
in a definitive manner, we are obliged to consider the limits of the defense and provide the
trial court and the parties principles which will govern jury instructions on remand.
(7) While we agree with the holding in Colvin that the relatively large size of a collective or
cooperative will not per se take it outside the scope of section 11362.775, in any given case
the size of an enterprise may nonetheless be quite relevant in determining whether a
defendant's participation is protected by the MMPA. In this regard we note that although
section 11362.775 itself does not require that collective or cooperative projects be nonprofit
enterprises, there is little doubt the Legislature did not intend to authorize profit-making
RJN P. 75
enterprises. The clearest expression of that limitation is set forth in the basic immunity
provided to individual patients and their care providers by the closely related provisions of
section 11362.765, subdivision (a): "However, nothing in this section shall authorize the
individual to smoke or otherwise consume marijuana unless otherwise authorized by this
article, nor shall anything in this section authorize any individual or group to cultivate or
distribute marijuana for profit." (Italics added.) The nonprofit limitation on group cultivation in
section 11362.765, subdivision (a) would make little, if any, sense, if it did not also apply to
collective or cooperative projects permitted under section 11362.775. (See Bode v. Los
Angeles 539*539 Metropolitan Medical Center (2009) 174 Cal.AppAth 1224, 1237 [94
Cal.Rptr.3d 890) [,,[Pjrovisions relating to the same subject matter or that are part of the
same statutory scheme must be read together and harmonized to the extent possible."]; see
also Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.AppAth 734, 747 [115
Cal. Rptr.3d 89] [collective and cooperati ves under 11362.775 must be
nonprofit]; Hochanadel. supra. 176 Cal.App.4th at p. 1018 [same]; Guidelines, supra, at p. 9
[same].) Thus, when a defense under the MMPA is offered, the Peoplle are entitled to an
instruction advising the jury that a collective or cooperative protected by the MMPA must be
a nonprofit enterprise.
(8) Plainly, in determining whether a collective or cooperative is a nonprofit enterprise, its
establishment as such under Corporations Code section 12201Ql and any financial records
of the enterprise will be relevant, including in particular any processes or procedures by
which the enterprise makes itself accountable to its membership. An operator's testimony
as to the nonprofit nature of the enterprise is of course also relevant.
However, by the same token, the absence of fairly complete financial records and any
accountability to members will also be relevant, especially when combined with a large
number of members and evidence of a high volume of business. In the latter circumstance a
trier of fact could reasonably conclude that, notwithstanding an operator's testimony, a large
membership, high volume enterprise was in fact operated for profit. Thus, in addition to an
instruction that an enterprise must be nonprofit, the People are entitled to an instruction that
in considering whether a collective or cooperative is nonprofit, a jury may consider the
testimony of the operators of the enterprise, its formal establishment as a nonprofit
organization, the presence or absence of any financial records, the presence or absence of
processes by which the enterprise is accountable to its members, the size of the
enterprise's membership and the volume of business it conducts.
Of course the jury should also be instructed that a defendant is only required to raise a
reasonable doubt as to whether the elements of the defense, including the nonprofit
element, have been proven. (See People v. Jones. supra, 112 Cal.AppAth at p. 350.)fil
RJN P. 76
540*540 DISPOSITION
The judgment of conviction is reversed and remanded for further proceedings consistent
with the views we have expressed.
McDonald, J., and Mcintyre, J., concurred.
ill All further statutory references are to the Health and Safety Code unless othelWise indicated.
o Califomia Attomey General's Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use
(Aug. 2008) [as of Oct 24, 20121 (Guidelines). The Guidelines are entitled to considerable weight but do not bind us.
(People v. Hochanadel (2009) 176 Cal.AppAth 997. 1011 [98 Cal. Rptr.3d 3471 (HochanadeD. )
Ql Corporations Code section 12201 permits establishment of consumer cooperatives which are "democratically
controlled and are not organized to make a profit for themselves, as such, or for their members, as such. but primarily
for their members as patrons (Section 12243)."
HI We deny Jackson's request for judicial notice of a recent letter the Attomey General sent to the Legisl ature. The
letter was not presented in the trial court. (See Haworth v. Superior Court (2010) 50 Cal.4th 372. 379, (n. 2 [112.
Cal.Rptr.3d 853, 235 P.3d 152J.)
RJN P. 77
EXHIBIT 16
RJN P. 78
Filed 8/18/09
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNJA
THE PEOPLE, 0054743
Plaintiff and Appellant,
v. (Super. Ct. No. TNF056902)
STACY ROBERT HOCHANADEL et al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside County, David P.
Downing, Judge. Reversed.
Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District
Attorney, for Plaintiff and Appellant.
Marylou Hilbert, under appointment by the Court of Appeal, for Defendant and
Respondent Stacy Robert Hochanadel.
James M. Crawford, under appointment by the Court of Appeal, for Defendant aod
Respondent John Reynold Bednar.
RJN P. 79
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Respondent James Thomas Campbell.
In this case we are presented with two questions regarding the legality of
storefront dispensaries that provide medical marij uana pursuant to [he Compassionate
Use Act (eUA). approved by voters in 1996 under Proposition 215, and its implementing
legislation, the Medical Marijuana Program Aot (MMP A).
First, did the MMP A unconstitutionally amend the CUA when it authorized
"cooperatives'l and "collectives" to cultivate and distribute medical marijuana?
Second, did the court err in quashing a search warrant for a storefront medical
marijuana dispensary called CannaHelp located in the City of Palm Desert, California,
and dismissing the criminal charges against the defendants Stacy Robert Hochanadel,
James Thomas Campbell and John Reynold Bednar (collectively, defendants), who
operated CannaHelp, based on its findings that (1) CannaHelp was a legal "primary
caregiver" under the CUA and MMPA; and (2) the detective that authored the search
warrant affidavit was not qualified to opine as to the legality of CannaHelp?
We conclude the MlvlP A's authorization of cooperatives and collectives did not
amend the eUA, but rather was a distinct statutory scheme intended to faciJjtate the
transfer of medical marijuana to qualified medical marijuana patients under the CUA that
the CUA did not specifically authorize or prohibit. We also conclude that storefront
dispensaries that qualify as "cooperatives" or "collectives" under the eUA and MMPA,
and otherwise comply with those laws. may operat.e legally, and defendants may have a
2
RJN P. 80
defense at trial to the charges in this case based upon the CUA and MMPA. We further
conclude, however, that the court erred in finding that CannaHelp qualified as a primary
caregiver under the CUA and MMP A and in finding that the detective who authored the
search warrant affidavit was not qualified to opine as to the legality of CannaHelp's
activities. We conclude the facts stated in the search warrant affidavit provided probable
cause the defendants were engaged in criminal activity, and, even if the search warrant
lacked probable cause, the author of the search warrant affidavit acted in reasonable
reliance on its validity. Accordingly, the court erred in quashing the search warrant and
dismissing the charges against defendants. Finally, we conclude that, contrary to the
People's contention, defendants Campbell and Bednar had standing to challenge the
validity of the search warrant.
INTRODUCTION
Based upon evidence obtained from a search pursuant to a court-authorized
warrant, the Riverside County District Attorney's Office charged defendants with
possession of marijuana for sale (Health & Saf. Code,1 11359: count 1); transportation
of marijuana ( 11360, subd. (a): count 2); and maintaining a business for the purpose of
sell ing maTi juana ( 11366: count 3).
Defendants brought a motion to quash the search warrant. The court granted the
motion finding (1) the detective who authored the affidavit in support of the search
warrant was not qualified as an expert on the CVA and MMP A; (2) the dispensary the
All further statutory references are to the Health and Safety Code unless otherwise
specified.
3
RJN P. 81
defendants operated qualified as a "primary caregiver" under the CUA and thus they did
not violate the law; and (3) the warrant and resulting evidence were therefore illegal. The
court thereafter dismissed the case based upon a lack of evidence.
The People appeal, asserting the court erred in quashing the search warrant
because (1) the MMPA, which implemented the CUA, unconstitutionally amended the
CUA by authorizing marijuana cooperatives as primary caregivers; (2) the defendants'
storefront dispensary did not qualify as a primary caregiver under the MMPA; (3) the
"collective knowledge" doctrine established probable cause for the warrant; (4) the
detective who authored the search warrant provided competent expert evidence to support
a finding of probable cause; (5) the good faith exception to the exclusionary rules applies
even if the search warrant was invalid; and (6) defendants Bednar and Campbell did not
have standing to challenge the search warrant as they were not owners of CannaHelp.
FACTUALANDPROCEDURALBACKGROUND2
A. The invesligalion
In October 2005 Hochanadel opened a marijuana dispensary named "Hempies" in
the City of Palm Desert. Hochanadel later changed the name to "CannaHelp. II
Hachanadel fi led a certi ficate of use statement with the State of California, id entifying it
as a dispensary for medical marijuana. CannaHelp obtained a business license from the
City of Palm Desert to operate a medical marijuana dispensary and operated it in a
transparent fashion. Access to the business was controlled by employees, who allowed
2 Because this matter was dismissed prior to trial, we take the facts from the
preliminary hearing transcript and the search warrant affidavit.
4
RJN P. 82
customers to enter a room where their medical marijuana prescription was verified. Once
it was verified the customer had a valid prescription, the customer was allowed access to
a second room where various types of marijuana were on display. Employees received
weekly training on the different strains of marijuana and offered advice to patients on
what strains were effective for different ailments. Prior to making a purchase, customers
completed paperwork designating CannaHelp as their primary caregiver. All the patients
of CannaHelp had valid doctor's statements, and CannaHelp contacted authorities when
someone tried to illegally purchase marijuana. CannaHelp operated like any other
business, with financial records, employee records, and policies and procedures.
Campbell and Bednar were the managers and co-owners of CannaHelp. All truee
defendants had medical referrals for marijuana and were qualified medical marijuana
patients under the CUA.
Riverside County Sheriffs Detective Robert Garcia investigated CannaHelp.
Under his direction, police conducted surveillance of CannaHelp. They observed a
significant amount of buying activity. The customers were mostly young, without any
observable health conditions. Detective Garcia saw Gary and Krista Silva arrive in a van.
lt was detennined Gary Silva was a manufacturer and supplier of marijuana to
CannaHelp.
On March 14,2006, federal agents executed a search warrant at Gary Silva's
home. While executing the search warrant, officers observed a fully operational growing
operation in a sectioned-off portion of the garage, with 69 marijuana plants and growing
equipment. Agents found "numerous" loaded fireanns in Silva's residence. They also
5
RJN P. 83
discovered several canisters of dried marijuana for sale, and marijuana on drying racks in
the master bedroom.
Detective Garcia sent an undercover officer into CannaHelp with a manufactured
physician's statement produced by the sheriffs department. That officer was denied entry
when CannaHelp employees could not verify the physician's statement was legitimate.
A second officer then went to a physician in Los Angeles and complained of
chronic back pain. He obtained a statement from that doctor allowing him to purchase
medical marijuana. He presented it to CannaHelp and was allowed to purchase
marijuana. Prior to purchasing the marijuana, he was given advice as to which strain
would be most helpful for his back pain and signed a document designating CannaHelp
as his primary caregiver.
While inside CannaHelp, the undercover agent observed an ATM machine and
three display boards listing prices for different quantities of marijuana. The agent also
observed plastic containers of marijuana inside a glass counter. An employee
recommended a specific type of marijuana for his back pain, and he purchased one ounce
of marijuana for $290. The same agent later conducted another undercover buy, this time
purchasing one-half an ounce for $290.
B. Search Warrant Affidavit
Detective Garcia executed an affidavit in support of a search warrant for
Hochanadel's residences and CannaHelp. Detective Garcia related his experience in
narcotics investigations, noting that he was assigned to the Special Investigations Bureau
charged with narcotics investigations. He stated that during his employment with the
6
RJN P. 84
Riverside County Sheriffs Department he "participated in several narcotics training and
education courses dealing with the sales, packaging, recognition, preparation,
paraphernalia, and use of narcotics, dangerous drugs and controlled substances. This
training also included instruction of the types of financial records maintained by
persons(s) who traffic in controlled substances." He also "received approximately 20
hours of instruction on narcotics, dangerous drugs, and controlled substances" while
attending the sheriffs academy. He attended an undercover operations course and a
criminal interdiction course. He also detailed his experience in narcotics arrests and
search warrants, as well as investigations of marijuana grow operations.
The affidavit then detailed the investigation of CannaHelp, discussed, ante. Based
upon that investigation, Detective Garcia concluded that CannaHelp was operating
illegally because it was "selling marijuana, which is a violation of [sections] 11359 and
11360. In California, there is no authority for the existence of storefront marijuana
businesses. The [MMP A] allows patients and primary caregivers to grow and cultivate
marijuana, no one else. A primary caregiver is defined as an 'individual' who has
consistently assumed responsibility for the housing, health or safety of a patient. A
storefront marijuana business cannot, under the law, be a primary caregiver." Detective
Garcia further opined CannaHelp was operating illegally because it was a for-profit
enterprise: "Additionally, given this is a 'cash only' business, the presence of an ATM
machine, high prices charged for small amounts of marijuana, it is also my opinion that
this criminal enterprise is 'for profit' which is outside of any of the guidelines in the
medical marijuana exceptions." Specifically, Detective Garcia opined the price for
7
RJN P. 85
marijuana at CannaHelp was approximately twice the price of "mid-grade" marijuana
available on the streets.
Based upon Detective Garcia's affidavit, the court granted the search warrant.
C. Detective Garcia's Preliminary Hearing Testimony
At the preliminary hearing, Detective Garcia admitted he had no formal training in
medical marijuana laws. He was "[j]ust given a pamphlet or some paperwork, just given
the laws just to read over."
He further admitted that based upon his review of CannaHelp's fmancial records, it
was losing money, with annual revenues of $1.7 million, and expenses of $2.6 million,
not including rent, utilities or other expenses. He admitted the business was "upside
down."
D. Motion To Quash
The defendants brought motions to quash the search warrant. Defendants argued
(1) CannaHelp qualified as a primary caregiver under the eUA and MNJPA, and
therefore the motion should be quashed based upon a lack of probable cause; and (2) the
search warrant was invalid as Detective Garcia was not qualified to execute it.
After reading the affidavit in support of the search warrant, the transcript of the
preliminary hearing, and the pleadings in the file, the court granted defendants' motion to
quash. The court first determined Detective Garcia was not qualified to author the search
warrant as he had no training or understanding of medical marijuana laws. The court
further found CannaHelp was a valid primary caregiver. In doing so, the court first noted
Detective Garcia was incorrect in his conclusion it was operating at a profit. The court
8
RJN P. 86
also noted CannaHelp operated in the open, in compliance with city and state regulations,
and only sold to persons holding legitimate medical marijuana cards. Based upon these
facts, the court found CannaHelp was a "legal primary caregiver'! and was in compliance
with the medical marijuana laws. The court thus found there was no probable cause for a
search warrant and granted the motion to quash. The court thereafter dismissed the case
based upon a lack of evidence.
DISCUSSION
1. APPLICABLE AUTHORiTY
A. The eUA
The CUA was approved by California voters as Proposition 215 in 1996 and is
codified at section 11362.5. (People v. Trippet (1997) 56 Cal.AppAth 1532, 1546;
People v. Tilehkooh (2003) 113 Cal.AppAth 1433,1436.) Subdivision (d) of section
11362.5 provides: "Section 11357, relating to the possession of marijuana, and Section
11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or approval of a
physician." The CUA directed the Legislature to "implement a plan to provide for the
safe and affordable distribution of marijuana to all patients in medical need of
marijuana." ( 11362.5, subd. (b)(l)(C).)
Under the CUA, a "primary caregiver" is defined as "the individual designated by
the person exempted under this section who has consistently assumed responsibility for
the housing, health, or safety of that person." ( 11362.5, subd. (e).) The California
9
RJN P. 87
Supreme Court has recently held that to be a primary caregiver under this section, an
individual must show that "he or she (l) consistently provided caregiving, (2)
independent of any assistance in tak.jng medical marijuana, (3) at or before the time he or
she assumed responsibility for assisting with medical marijuana." (People v. Menlch
(2008) 45 CalAth 274, 283 (MenLch).) The high court in Mentch concluded that a person
does not qualify as a primary caregiver merely by having a patient designate him or her
as such or by the provision of medical marijuana itself. (Jd. at pp. 283-285.) Rather, the
person must show "a caretak.jng relationship directed at the core survival needs of a
seriously ill patient, not just one single phannaceutical need." (Jd. at p. 286.)
B. TheMMPA
In 2003 the Legislature enacted the MMPA, effective January 1, 2004, adding
sections 11362.5 through 1 [362.83 to the Health and Safety Code. (People v. Wright
(2006) 40 Ca1.4th 81,93.) The express intent of the Legislature was to: "(1) Clarify the
scope of the application of the [CUA] and facilitate the prompt identification of qualified
patients and their designated primary caregivers in order to avoid unnecessary arrest and
prosecution of these individuals and provide needed guidance to law enforcement
officers. [ ~ ] (2) Promote unifonn and consistent application of the [CUA] among the
counties within the state. [,-r] (3) Enhance the access of patients and caregivers to
medical marijuana through colleclive, cooperative cultivation projects. [ ~ ] (c) It is also
the intent of the Legislature to address additional issues that were not included within the
[CUA], and that must be resolved in order to promote the fair and orderly implementation
o[the [CUA]." (Stats. 2003, ch. 875, 1, subd. (b)(1)-(3), (c), jtalics added.) The
10
RJN P. 88
legislative history further states, "Nothing in [the MJv1PA] shall amend or change
Proposition 215, nor prevent patients from providing a defense under Proposition
215 . . .. The limits set forth in [the MMP A] only seYVe to provide immunity from orres t
for patients taking part in the voluntary JD card program, they do not change Section
11362.5 (Proposition 215) .... " (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis
of Sen. Bill No. 420 (2003 Reg. Sess.) as amended Sept. 9, 2003. p. 6, italics added.)
Of relevance to this appeat the MMPA added section 11362.775, which provides:
"Qualified patients, persons with valid identification cards, and the
designated primary caregivers of qualified patients and persons with
identification cards, who associate within the State of California in
order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject to state
criminal sanctions under Section 11357 [possession of marijuana],
11358 [cultivation of marijuana}, 11359 [possession for sale], 11360
[transportation]. 11366 [maintaining a place for the sale, giving
away or use of marijuana], 11366.5 [making available premises for
the manu facture, storage or distribution of controlled substances], or
11570 [abatement of nuisance created by premises used for
manufacture, storage or distribution of controlled substance]."
The Court of Appeal in People v. Urziceanu (2005) 132 Cal.App.4th 747, 785
(Urziceanu) noted that n[t]his new law represents a dramatic change in the prohibitions
on tbe use, distribution, and cultivation of marijuana for persons who are qualified
patients or primary caregivers . ... Its specific itemization of the marijuana sales law
indicates it contemplates the fonnation and operation of medicinal malijuana
cooperatives that would receive reimbursement for marijuana and the services provided
in conjunction with the provision of that marijuana."
11
RJN P. 89
The MMPA also elaborates on the definition of primary caregiver in the eUA. It
first retains the defmition of a primary caregiver contalned in the eUA: lithe individual,
designated by a qualified patient ... who has consistently assumed responsibility for the
housing, health, or safety 0 f that patient or person .... " ( 11362.7, subd . (d).) The
subdivision goes on to provide three examples of persons who would qualify as primary
caregivers under this definition: (1) Owners and operators of clinics or care facilities; (2)
"An individual who has been designated as a primary caregiver by more than one
qualified patient or person with an identification card, if every qualified patient or person
with an identification card who has designated that individual as a primary caregiver
resides in the same city or county as the primary caregiver"; and (3) "An individual who
has been designated as a primary caregiver by a qualified patient or person with an
identification card who resides in a city or county other than that of the primary
caregiver, if the individual has not been designated as a primary caregiver by any other
qualified patient or person with an identification card." ( 11362.7, subd. (d)(l-3).)
The MMPA also specifies that collectives, cooperatives or other groups shall not
profit from the sale of marijuana. ( 11362.765, subd. (a) ["nothing in this section shall
authorize ... any ... group to cultivate or distribute marijuana for profie'].)
C. Attorney General Guidelines
Section 11362.81 , subdivision (d) provides: tI[T]he Attorney General shall
develop and adopt appropriate guidelines to e n s ~ u r e the security and nondiversion of
marijuana grown for medical use by patients qualified under the [eVA]. "
l2
RJN P. 90
On August 25,2008, the California Attorney General issued "Guidelines for the
SeclJrity and Non-Diversion of Marijuana Grown for Medical Use!! (A.G. Guidelines)
<hrtp://ag.ea.gov/cms_attachments/press/ pdfs/ n 160 , _ medicalma rijl1anagu idel ines. pdf>
(as of Aug. 5, 2009). The A.G. Guidelines' stated purpose is to "( J) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or
illicit markets, (2) help law enforcement agencies perfonn their duties effectively and in
accordance with California law, and (3) help patients and primary caregivers understand
how they may cultivate, transport, possess, and use medical marijuana under California
law." (ld. at p. 1.)
Severa' of the guidelines are helpful to our analysis. First, the A.G. Guidelines
reiterate the IIconsistency" element of the defmition of primary caregiver contained in
both the CUA and MMPA: "Although a 'primary caregiver who consistently grows and
supplies ... medicinal marijuana for a section 11362.5 patient is serving a health need of
a patient,' someone who merely maintains a source of marijuana does not automatically
become the party 'who has consistently assumed responsibility for the housing, health, or
safety' oithat purchaser." (A.G. Guidelines, p. 4.)
Further, the A.G. Guidelines provide a definition of "cooperatives
ll
and
"collectives.
1I
A cooperative "must file articles of incorporation with the state and
conduct its business for the mutual benefit of its members. [Citation.] No business may
call itself a 'cooperative' (or 'co-op') unless it is properly organized and registered as such
a corporation under the Corporations or Food and Agriculture Code. [Citation.]
Cooperative corporations are 'democratically controlled and are not orgaruzed to make a
13
RJN P. 91
profit for themselves, as such, or for their members, as such, but primarily for their
members as patrons.' [Citation.]11 (Jd. at p. 8.) Further, "[c]ooperatives must follow
strict rules on organization, articles, elections, and distributions of eamings, and must
report individual transactions from individual members each year." (Ibid.)
A collective is" 'a business, fann, etc., jointly owned and operated by the
members of a group.' [Citation.]" (A.G Guidelines, supra, at p. 8.) Thus, "a collective
should be an organization that merely facilitates the collaborative efforts ofpalient and
caregiver members-including the allocation of costs and revenues." (Ibid.) Further, the
A.G. Guidelines opine, liThe collective should not purchase marijuana from> or sell t.o,
non-members; instead, it should only provide a means for facilitat ing or coordinating
transactions between members. " (Ibid.)
The A.G Guidelines further provide guidelines for the lawful operation of
cooperatives and collectives. They must be nonprofit operations. (A.G. Guidelines,
supra, at p. 9.) They may "acquire marijuana only from their constituent members,
because only marijuana grown by a qualified pat1ent or his or her primary caregiver may
be lawfully transported by, or distributed to, other members of a collective OJ
cooperative .... Nothing allows marijuana 10 be purchased/rom outside the collective
or cooperative Jor distribution to its members. [he cycle should be a closed-
circuit of marijuana cul tivation and consumption with no purchases or sales to or from
non-members. To help prevent diversion of medical marijuana to non-medical markets,
collectives and cooperatives should document each member's contribution of labor,
14
RJN P. 92
resources, or money to the enterprise. They should also track and record the source of
their marijuana.
1I
(Jd. at p. to, italics added.)
Distribution and sales to nomnembers is prohibited: "State law allows primary
caregivers to be reimbursed for certain services (including marijuana cultivation), but
nothing allows individuals or groups to sell or distribute marijuana to non-members.
Accordingly, a collective or cooperative may not distribute medical marijuana to any
person who is not a member in good standing of the organization. A dispensing
collective or cooperative may credit its members for marijuana they provide to the
collective, which it then may allocate to other members. [Citation.] Members may also
reimburse the collective or cooperative for marijuana that has been allocated to them.
Any monetary reimbursement that members provi de to the co llective or cooperative
should only be an amount necessary to cover overhead costs and operating expenses."
(A.G. Guidelines, supra, at p. 10.)
Finally, the A.G. Guidelines provide guidance to law enforcement as to whether
activities comply with the CUA and MMP A. 1n this regard, the guidelines specifically
address "Storefront Dispensaries." (A.G. Guidelines, supra, at p. II.) The At torney
General is of the opinion that while "dispensaries, as such, are not recognized under the
\aw/ t "a properly organized and operated collective or cooperative that dispenses medical
ma.rijuana through a storefront may be lawful under California law. but 0 dispensaries
that do not substantial I y comp I y with the guidel ines [covering co Ilectives and
cooperatives] are likely operating outside the protections of [the CUA] and the MMP[ A])
and [] the individuals operating such entities may be subject to arrest and crimjnal
l5
RJN P. 93
prosecution under California law. For example, dispensaries that merely require patients
to complete aform summarily designating the business owner as their primary
caregiver-and then offering marijuana in exchange for cash 'donations'-are likely
unlawful. II (A.G. Guidelines, supra, at p. 11, italics added.)
" 'While the Attorney General' s views do not bind us [citat.ion], they are entitled to
considerable weight [citation] .' II (Freedom Newspapers. Inc. v. Orange County
Employees Retirement System ( 1993) 6 Ca lAth 821, 829.)
n. CONSTITUTIONAL CHALLENGE
The People assert that section 11362.775, which exempts medical marijuana
patients, persons with valid medical marijuana identification cards and their primary
caregivers who form collectives or cooperatives to cultivate marijuana from prosecution
for several drug-related crimes, constituted an unconstitutional amendment of the CUA.
This contention is unavailing.
Article II, section 10, subdivision (c) ofthe California Constitution prohibits the
Legislature from amending an initiative measure unless the initiative measure itself
authorizes legislative amendment. (CaL Const., art. IT, 10, subd. (c); People v. Cooper
(2002) 27 Cal.4th 3 8 ~ 44.) Here, it is undisputed the CUA does not allow legislative
amendments to its provisions. Thus, if the MMP A in any manner amended the CUA, the
amendment would be unconstitutional. (Cooper, supra, 27 Ca1.4th at p. 44.) However,
as we shall explain, section 11362.775 does not amend the CUA.
"An amendment is ' ... any change of the scope or effect of an existing statute)
whether by addition, orrtission, or substitution of provisions, which does not wholly
16
RJN P. 94
terminate its existence, whether by an act purporting to amend, repeal, revise, or
supplement, or by an act independent and original in form, ... ' [Citation.] A statute
which adds to or takes away from an existing statute is considered an amendment. It
(Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776; Knight v. Superior Court
(2005) 128 Cal.App.4th 14,22.)
As we recently stated in Coumy of San Diego v. San Diego NORML (2008) 165
Cal.App.4th 798, 829-830 (County of San Diego), It[t] he proscription embodied in article
II, section 10, subdivision (c) of the California Constitution is designed to' "protect the
people's initiative powers by precluding the Legislature from undoing what the people
have done, without the electorate's consent." I [Citation.] '[L]egis\ative enactments
related to the subject of an initiative statute may be allowed' when they involve a 'related
but distinct area' [ citation] or relate to a subject of the initiative that the initiative 'does
not specifically authorize or prohibit.' [Citation.]"
In County of San Diego, San Diego and San Bernardino Counties (together, the
Counties) contested the MMP A's requirement that they implement and administer the
identification card system related to qualified patients and primary caregivers. (County of
San Diego, supra, 165 Cal.AppAth at p. 808.) Among other things, the Counties asserted
the MMP A's mandate requiring implementation of an identification card system was an
unconstitutional amendment to the CUA. (ld at p. 829.) This court held that the MMP A
did not amend the CUA. In doing so, we reasoned that the MNlPA did not add to the
CUA as it was a separate legislative scheme, CUA protections remained intact, and the
identification card system did not impact the CUA's protections: "The MMP[A]'s
17
RJN P. 95
identification card system, by specifying participation in that system is voluntary and a
person may 'claim the protections of [the CUA]' without possessing a card [citation],
demonstrates the MMP[A]'s identification card system is a discrete set of laws designed
to confer distinct protections under California law that the CUA does not provide without
limiting the protections the CUA does provide. For example, unlike the CUA (which did
not immunize medical marijuana users from arrest but instead provided a limited
'immunity' defense to prosecution under state law for cultivation or possession of
marijuana [citation], the MMP[A]'s identification card system is designed to protect
against uIU1ecessary arrest. [Citation.] Additionally, the fvl1v1P[A] exempts the bearer of
an identification card (as well as qualified patients as defined by the MMP[AJ) from
liability for other controlled substance offenses not expressly made available to medical
marijuana users under the CUA." (County of San Diego, supra, 165 Cal.App.4th at p.
830.)
As we further held, "Here, although the legislation that enacted the MMP[AJ
added statutes regarding California's treatment of those who use medical marijuana or
who aid such users, it did not add statutes or standards to the eVA. Instead, the
MMP[A]'s identification card is a part of a separate legislative scheme providing separate
protections for persons engaged in the medical marijuana programs, and the MMP[AJ
carefully declared that the protections provided by the CUA were preserved without the
necessity of complying with the identification card provisions. [Citation.] The MMP[A],
in effect, amended provisions of the Health and Safety Code regarding regulation of
drugs adopted by the Legislature, not provisions of the CUA. Because the MMP[ A]'s
18
RJN P. 96
identification card program has no impact on the protections provided by the CUA, we
reject Counties' claim that those provisions are invalidated by article II, section 10,
subdivision (c), of the California Constitution." (County of San Diego, supra, 165
Cal.AppAth at p. 831.)3
As with the identification card provisions of the MMPA addressed in County 0/
San Diego, section 11362.775, relating to cooperatives and collectives, did not constitute
an amendment of the CUA as it was not intended to, and did not, alter the rights provided
by the CUA. Rather, it identifies groups that may lawfully distribute medical marijuana
to patients under the CUA. Thus, it was designed to implement, not amend the CUA.
Like the identification card provisions, the defense against arrest and prosecution given to
qualified individuals who establish cooperatives and collectives to deliver medical
marijuana under the CUA "amended provisions of the Health and Safety Code regarding
regulation of drugs adopted by the Legislature, not provisions of the CUA. Because the
MMP A IS [cooperative and collecti ve] program has no impact on the protections provided
by the CUA, we reject [the People's] claim that those provisions are invalidated by
Article II, section 10, subdivision (c), of the California Constitution." (County o/San
Diego, supra, 165 Cal.AppAth at p. 831.)
3 The California Supreme Court has recently granted review in two cases that held
section 11363.77 of the MMPA, which limits the amount of marijuana a qualified patient
may legally possess, unconstitutionally amended the eUA because the CUA only stated
that qualified patients could possess a "reasonable" amount consistent with a patient's
needs. (See People v. Ph 0 mphakdy, review granted Oct. 28, 2008, S 166565 & People v.
Kelly, review granted Aug. 13, 2008, S 164830.) That issue is not before us on this
appeal.
19
RJN P. 97
Indeed, the CUA itself directed the state to create a statutory plan to provide for
the safe and affordable distribution of medical marijuana to qualified patients.
( 11362.5, subd. (b)(I)(C).) Thus, in enacting section 11362.775 the Legislature created
what the CVA expressly contemplated and did not unconstitutionally amend the CVA.
III. MOTION TO QUASH
The People assert the court erred in granting the motion to quash the search
warrant, and in suppressing the evidence seized pursuant thereto, because (1) CannaHelp
did not qualify as a primary caregiver under the CVA; (2) it was not a collective or
cooperative under the eVA; (3) the collective knowledge doctrine rendered Detective
Garcia qualified to author the search warrant affidavit; (4) the good faith exception to the
exclusionary rule applied; and (5) defendants Bednar and Campbell lacked standing to
contest the search warrant as they were only employees of Canna Help.
We conclude that the court erred in finding that CannaHelp qualified as a primary
caregiver under the eUA and MMP A and in finding that Detective Garcia was not
qualified to author the search warrant affidavit. We further conclude that while those
who operate storefront dispensaries that qualify as true cooperatives or collectives may be
immune from prosecution for the offenses listed in section 11362.775, and defendants
may have a defense at trial to the charges in this case based upon that section of the
MMP A, the facts stated in Officer Garcia's search warrant affidavit provided probable
cause the defendants were engaged in criminal activity. Moreover, to the extent the
search warrant lacked probable cause, the officers executing the search warrant acted in
20
RJN P. 98
reasonable reliance on its validity. Accordingly, the court erred in quashing the search
warrant and dismissing the charges against defendants.
A. Probable Cause Necessary for Search Warrants
"The Fourth Amendment provides that 'no Warrants shall issue, but upon probable
cause, supported by Oath or Affirmation ... .' California Constitution, article I, section
13, and Penal Code section 813 contain similar provisions. An arrest warrant which is
not supported by a showing of probable cause must fail, and an arrest made pursuant to it
is illegal." (People v. Campa (1984) 36 Cal.3d 870,879.) "In determining the
sufficiency of an affidavit for the issuance of a ... warrant the test of probable cause is
approximately the same as that applicable to an arrest without a warrant. ... namely,
whether the facts contained in the affidavit are such as would lead a man of ordinary
caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the
guilt of the accused." (Skelton v. Superior Court (1969)] Cal.3d ]44, ]50.) Stated
another way, the issuing magistrate's task is to make a practical and commonsense
determination whether, given all the infonnation in the affidavit, "there is a fair
probability that contraband or evidence of a crime will be found in a particular place."
(Illinois v. Gates (1983) 462 U.S. 213,238.)
However, "[ e]vidence seized pursuant to a warrant unsupported by probable cause
need not necessarily be excluded. The Fourth Amendment exclusionary rule does not bar
the use in the prosecution's case-in-chief of evidence obtained by officers acting in
reasonable reliance on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause. [Citations.]" (People v. Lim
21
RJN P. 99
(2000) 85 Cal.AppAth 1289, 1296 (Lim).) In United States v. Leon (1984) 468 U.S. 897,
the Supreme Court concluded "the marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of exclusion." (ld. at p.
922.) Accordingly, the court held the exclusionary rule should not be applied when the
officer conducting a search acted in objectively reasonable reliance on a warrant issued
by a detached and neutral magistrate, which warrant is subsequently determined to be
invalid. (ld. at pp. 922-923.) In considering that question, we apply the objective test of
"whether a reasonably well trained officer would have known that the search was illegal
despite the magistrate's authorization." (fd. at p. 922, fn. 23.) Moreover, "the objective
reasonableness of an officer's decision to apply for a warrant must be judged based on the
affidavit and the evidence of probable cause contained therein and known to the officer,
'and without consideration of the fact that the magistrate accepted the affidavit. t
[Citation.]" (People v. Camarella (1991) 54 Cal.3d 592,605, fn. omitted.)
Finally, we resolve doubtful or marginal cases in favor of upholding the search
warrant as it is the duty of a reviewing court "to save the warrant if it can in good
conscience do so .... " (Caligari v. Superior Court (1979) 98 CaJ.App.3d 725, 729-730.)
B. CannaHelp And Its Operators Are Not Primary Caregivers
As discussed, ante, even after the enactment of the MMP A, a primary caregiver is
required to be someone who (1) has been designated as such by one exempted under the
eUA and MMPA; and (2) "has consistently assumed responsibility for the housing,
health, or safety of that patient or person." ( 11362.7, subd. (d) ; Men/ch, supra, 45
22
RJN P. 100
Ca1.4th at p. 283; A.G. Guidelines, p. 4.) While the MMPA identifies certain individuals
who can be valid primary caregivers, i.e., persons designated by more than one person,
all of whom reside in the same city or county, the person (or entity) must still meet the
requirement of "consistently" assuming responsibility for the housing, health or safety of
that person. ( 11362.7, subd. (d); Mentch, supra, at p. 283; A.G. Guidelines, supra, at p.
4.) As our high court recently explained, this entails an "existing, established
relationship," distinct from the provision of medical marijuana itself. (Mentch, supra, at
pp.283-284.) Individuals operating a marijuana-buying cooperative do not, by providing
medical patients with medicinal marijuana, consistently assume responsibility for the
health of those patients. (People ex reI. Lungren v. Peron (1997) 59 Cal.App.4th 1383,
1390; Mentch, supra, 45 Cal.4th at p. 284 [citing People ex reI. Lungren v. Peron with
approval] .)
Thus, a storefront dispensary and its operators do not qualify as primary caregivers
simply because a qualified medical marijuana patient has so designated them. Moreover,
the provision of medical marijuana, even if done on a "consistent" basis, does not make
one a "primary caregiver." There must be evidence of an existing, established
relationship, providing for housing, health or safety "independent of the administration of
medical marijuana." (Mentch, supra, 45 Cal.4th at p. 284.) There is no evidence
CannaHelp or the defendants had such a relationship with the customers who purchased
medical marijuana from them. A storefront dispensary that merely provides walk-in
customers with medical marijuana does not possess the type of "consistent" relationship
23
RJN P. 101
necessary to achieve primary caregiver status. Accordingly, the court erred in finding
CannaHelp qualified as a primary caregiver under the CUA and MMPA.
However, that conclusion does not end our inquiry, as we must analyze whether
other facts show there was probable cause to issue the search warrant. Specifically, we
must examine (I) whether the facts showed defendants were operating CannaHelp as a
cooperative or collective; (2) whether the "good faith" exception to the exclusionary rule
applies; and (3) whether Detective Garcia was qualified to author the search warrant.
C. CannaHelp as Cooperative or Collective
As noted, ante, in enacting section 11362.775, the Legislature "exempted those
qualifying patients and primary caregivers who collectively or cooperatively cultivate
marijuana for medical purposes from criminal sanctions for possession for sale,
transportation or furnishing marijuana, maintaining a location for unlawfully selling,
giving away, or using controlled substances, managing a location for the storage,
distribution of any controlled substance for sale, and the laws declaring the use of
property for these purposes a nuisance. [ ~ ] ... its specific itemization of the marijuana
sales law indicates it contemplates the formation and operation of medicinal marijuana
cooperatives that would receive reimbursement/or marijuana and the services provided
in conjunction with the provision of that marijuana." (Urziceanu, supra, 132
Cal.AppAth at p. 785, italics added.) Thus cooperatives and collectives operated by
primary caregivers andior medical marijuana patients may have a defense to certain
narcotics offenses, including those charged against the defendants in this case.
24
RJN P. 102
In Urziceanu, the defendant was charged with conspiracy to sell marijuana. The
defendant sought to present evidence that he had established a medical marijuana
cooperative called "FloraCare" and could legally distribute marijuana to individuals who
had medical certificates for marijuana. The trial court sustained objections to the
evidence, and the Court of Appeal reversed. In doing so, the court noted "defendant
produced substantial evidence that suggests he would fall within the purview of section
11362.775. He presented the court with evidence that he was a qualified patient, that is,
he had a qualifying medical condition and a recommendation or approval from a
physician. His codefendant ... submitted that same evidence as to herself. Defendant
further presented evidence of the policies and procedures FloraCare used in providing
marijuana for the people who came to him, including the verification of their
prescriptions and identities, the fact that these people paid membership fees and
reimbursed the defendant for costs incurred in the cultivation through donations. Further,
he presented evidence that members volunteered at the cooperative. II (Urziceanu, supra,
132 Cal.AppAth at p. 786.) In Urziceanu, the collective operated openly with fonnal,
documented practices and procedures for signing up and verifying the eligibility of
cooperative members. (Jd. at pp. 763-766, 786.)
The Court of Appeal in Urziceanu concluded these facts presented "substantial
evidence that suggests [the defendant] would fall within the purview of section
11362.775." (Urziceanu, supra, 132 Cal.AppAth at p. 786.) Accordingly, the Court of
Appeal reversed, holding the court erred in not allowing the defendant to use section
25
RJN P. 103
11362.775 as a defense to the charge of conspiracy to sell marijuana. (Urziceanu, supra,
at p. 786.)
Here, however, we are not charged with determining whether the facts are
sufficient to allow defendants to raise section 11362.775 as a defense at trial. Rather, we
must determine if the facts stated in Detective Garcia's search warrant affidavit gave
probable cause to believe defendants were not operating within the confines of the eUA
and MMP A. We conclude that Detective Garcia's search warrant affidavit provided
probable cause defendants were not operating within the law. We further conclude that
even if it did not, a reasonable person would have believed probable cause ex.isted, and
therefore the good faith exception to the ex.clusionary rule applies.
We find persuasive the A.G. Guidelines' opinion that if a storefront dispensary
managed by primary caregivers or medical marijuana patients is truly operating as a
cooperative or collective, it and its operators might have a defense to arrest and
prosecution under section 11362.775. Not.hing in section 11362.775, or any other law,
prohibits cooperatives and collectives from maintaining places of business. If defendants
ca.n produce facts sufficient to show they were operating a true cooperative or collective,
and that they were otherwise in substantial compJiance with the CUA and MMPA, they
may be able to raise section 11362.775 as a defense at trial. However, our analysis is
confined to the facts as described in the search warrant affidavit. Those facts and
application of relevant law, including the A.G. Guidelines, provide a reasonable
suspicion to believe defendants were not operating within the eUA and MMPA.
26
RJN P. 104
First, it appears that purchasers were merely required to "complete a form
summarily designating the business owner as their primary caregiver .... " (A.G.
Guidelines, supra, at p. 11.) There was no evidence purchasers had any other
relationship with CannaHelp or that they were actual members of a cooperative or
collective. These facts are a strong indication of unlawful activity. (ibid.) Moreover, the
evidence showed at least some of the marijuana CanoaHelp offered for sale was
purchased from an outside source, Silva, as opposed to from one or more of its own
members. (Jd. at p. 10.) Further, although it was determined after the fact that
CannaHelp was operating at a loss, the large number of transactions, the price of the
marijuana, and the cash-only nature of the business provided reasonable grounds for
Detective Garcia to believe CannaHelp was not operating as a nonprofit enterprise, also a
requirement for operation of cooperatives and collectives. (id. at p. 9; 11362.765, subd.
(a).) Thus, even if facts discovered after the warrant was issued showed a lack of
probable cause, Detective Garcia and the executing officers had reasonable grounds to
believe they had probable cause at the time the search warrant issued, and the "good
faith" exception to the exclusionary rule applies. (United States v. Leon, supra, 468 U.S.
at pp. 922-923.)
We express no opinion as to whether defendants were in substantial compliance
with section 11362.775 and the A.G. Guidelines, and whether, as in Urziceanu, there is
sufficient evidence for defendants to raise section 11362.775 as a defense at trial. Rather,
our only task is to detennine whether the facts, as known to Detective Garcia at the time
the search warrant issued, demonstrated probable cause to believe defendants were not in
27
RJN P. 105
compliance with the eUA and MMP A. Because we give great deference to the
magistrate's decision to issue a search warrant (Illinois v. Gates, supra, 462 U.S. at p.
238) and it is our duty "to save the warrant if [we] can in good conscience do so ... ."
(Caligari v. Superior Court, supra, 98 Cal.App.3d at pp. 729-730), we conclude the court
erred in quashing the search warrant and dismissing the charges against defendants.
D. Detective Garcia's Qualifications
We also conclude the court erred in concluding Detective Garcia was not qualified
to author the search warrant. The court's conclusion was based upon its belief that, in
opining CannaHelp could not be a primary caregiver, Detective Garcia demonstrated his
misunderstanding of the CUA and the MMPA. However, as we have detailed, ante,
Detective Garcia's conclusion in this regard was correct. Moreover, in the search warrant
he detailed his experience in narcotics investigations and accurately defined the term
"primary caregiver," thus demonstrating a familiarity with the medical marijuana laws.
That experience and knowledge was sufficient to make Detective Garcia competent to
author the search warrant affidavit. (See People v. Superior Court (Moore) (1980) 104
Cal.App.3d 1001, 10 I 0 [officer entitled to consider, in interpreting defendant's telephone
conversation with informant, officer's investigation of informant and experience in
narcotics investigation]; People v. Cleland (1990) 225 CaLApp.3d 388,393 [seizure of
significant amount of marijuana and cash from suspect's person, combined with police
officer's opinion that sellers of marijuana often keep additional contraband at home,
justified issuance of search warrant for residence].)
28
RJN P. 106
Further, Detective Garcia's erroneous conclusion that store front dispensaries
could never operate legally did not render him incompetent to author the search warrant.
That conclusion was reasonable, given the uncertainties in the law concerning medical
marijuana and the fact that, at that time, there was no California authority expressly
authorizing such operations. The A.G. Guidelines. opining that storefront dispensaries
may be valid under the CUA and MMP A if they qualify as cooperatives or collectives,
were not issued until August of 2008, nearly two years after the investigation and search
warrant affidavit. Thus, given the uncertainties in the law at the time Detective Garcia
authored the search warrant affidavit,lhis erroneous conclusion that storefront I
I dispensaries oan never be ill compliance with tbe CU A and MMP AI does not require an
exclusion of the evidence obtained with the earch warrant. (See People v. Garcia (2003)
111 Cal.App.4th 715, 724 [reliance on search warrant reasonable \-..,here there was no
controlling California authority at the time of the search]; People v. Pressey (2002) 102
CaI. App.4t.h 1178, 1191 [same].)
In asserting Detective Garcia did not have the experience necessary to author the
search warrant affidavit, defendants (as did the court below) rely on People v. Chakos
(2007) 158 Cal.AppAth 357. In that case, a deputy sheriff testified at trial that marijuana
possessed by an individual with a prescription for medical marijuana was possessed for
sale. (Jd. at pp. 361-362.) However, the officer admitted that he had no knowledge of the
CUA and had never before arrested an individual who was a qualified medical marijuana
patient. The Court of Appeal held he therefore did not qualify to testify at trial as an
expert on the subject and reversed the defendant's conviction. (Jd. at pp. 365,367-368.)
29
RJN P. 107
Here, however, we are not presented with the question of whether Detective
Garcia would have been qualified to testify as an expert witness at trial. Rather, we are
only concerned with his competence to author a search warrant affidavit. Moreover, as
we have explained, his affidavit did show he was familiar with the CVA and MMPA.
Accordingly, Chakos is inapposite.
N. STANDING
The People contend Campbell and Bednar had no standing to contest the search
warrant because they had no reasonable expectation of privacy as they were only
managers, not owners, of CannaHelp. We reject this contention.
To invoke Fourth Amendment protection, an appellant must have both a subjective
and an objectively reasonable expectation of privacy, such that society is prepared to
recognize that expectation as legitimate. (California v. Ciraolo (1986) 476 U.S. 207,
211; Katz v. United States (I 967) 389 U.S. 347, 361; People v. Reyes (I998) 19 Cal.4th
743, 751.) The "reasonableness of a claimed expectation of privacy depends on the
totality of clrcumstances presented in each case." (In re Baraka H. (1992) 6 Cal.AppAth
1039, 1044.) The defendant bears the burden of showing he had a legitimate expectation
of privacy. (People v. McPeters (1992) 2 Cal.4th 1148, 1172.)
Contrary to the People's unsupported assertion, Campbell and Bednar were owners
of CannaHelp, each having a 25 percent interest in the operation. Accordingly, they had
standing to contest the search warrant.
30
RJN P. 108
DISPOSITION
The judgment is reversed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McfNTYRE, J.
31
RJN P. 109
EXHIBIT 17
RJN P. 110
187 Cal.App.4th 734 (2010)
QUALIFIED PATIENTS ASSOCIATION et aI., Plaintiffs and Appellants,
v.
CITY OF ANAHEIM, Defendant and Respondent.
No. G040077.
Court of Appeals of California, Fourth District, Division Three.
August 18, 2010.
740*740 Anthony Curiale for Plaintiffs and Appellants.
Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf of Plaintiffs and
Appellants.
Mark Leno, in pro. per., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Jack L. White, City Attorney, Cristina Talley, Acting City Attorney, and Moses W. Johnson IV,
Assistanu City Attorney, for Defendant and Respondent.
Jones & Mayer, Martin J. Mayer, Jamaar Boyd-Weatherby and Krista MacNevin Jee for
California State Sheriffs' Association , California Police Chiefs' Association and California
Peace Officers' Association as Amici Curiae on behalf of Defendant and Respondent.
Meyers, Nave, Riback, Silver & Wilson, Chrystal B. James and Ellin Davtyan for Cities of
Adelanto, Bakersfield, Burbank, Calipatria, Camarillo, Carson, Chino, Compton, Costa Mesa,
Cypress, Fairfield, Fountain Valley, Fullerton, Garden Grove, Kerman, Livingston, Newport
Beach, Orange, Oakley, Palmdale, Placentia, Plymouth, Ripon, Roseville, San Marcos, Santa
Clara, Santa Clarita, Torrance, Tustin, Ukiah, Westminster and Town of Apple Valley as Amici
Curiae on behalf of Defendant and Respondent.
741*741 William James Murphy, County Counsel (Tehama) and Arthur J. Wylene, Assistant
County Counsel, for California State Association of Counties as Amicus Curiae on behalf of
Defendant and Respondent.
Edmund G. Brown, Jr., Attorney General, and Peter A. Krause, Deputy Attorney General, as
Amici Curiae upon the request of the Court of Appeal.
OPINION
ARONSON, J.
Plaintiffs Qualrified Patients Association (OPA) and Lance Mowdy appeal from a judgment of
dismissal entered after the trial court sustained, without leave to amend,
the City of Anahei m' s demurrer to plaintiffs' complaint. Asserting the primacy of state law over
local law under constitutional and statutory authority (Cal. Cons!., art. XI, 7; Gov. Code,
37100). plaintiffs' first cause of action sought a declaratory judgment that the city's ordinance
imposing criminal penalties for the operation of a medical marijuana dispensary was preempted
by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, 11362.5)L1l and the
Medical Marijuana Program Act (MMPA) ( 11362.7-11362.83). In their second cause of
RJN P. 111
action, plaintiffs asserted the city'sordinance violated the Unruh Civil Rights Act (Civ. Code,
51 ).
We agree with plaintiffs the trial court erred as a matter of law in concluding federal regulation of
marijuana in the Controlled Substances Act (21 U.S.C. 812 et seq.) preempted California's
decision in the CUA and the MMPA to decriminalize specific medical marijuana activities under
state law. We therefore reverse the judgment of dismissal and remand the matter to allow
plaintiffs to pursue their declaratory judgment cause of action. The trial court, however, correctly
concluded plaintiffs failed to state a cause of action under the Unruh Civil Rights Act, which is
aimed at "business establishments" (Civ. Code, 51, subd. (b)), not local government
legislative acts. We therefore affirm that portion of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In a provision entitled, "'Medical Marijuana Dispensary Prohibited,'" the city ordinance that
plaintiffs challenge provides: "'It shall be unlawful for any person or entity to own, manage,
conduct, or operate any Medical 742*742 Marijuana Dispensary or to participate as an
employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical
Marijuana Dispensary in the City of Anaheim.'" (Anaheim Ord. No. 6067, 1;
see Anaheim Mun. Code, 4.20.030.)
Anaheim Ordinance No. 6067, section 1 defines a ">"Medical marijuana dispensary or
dispensary'"'' as "'any facility or location wtlere medical marijuana is made available to and/or
distributed by or to three or more of the following: a qualifi'ed patient, a person with an
identification card, or a primary caregiver.'" (See Anaheim Mun. Code, 4.20.020.030.)
The ordinance provides, in section 5, for misdemeanor punishment for "any person who violates
any provision of this ordinance .... "
Plaintiffs' first cause of action sought a declaratory judgment that the state's medical marijuana
laws preempted the city's ordinance. Based on its conclusion federal law preempted the state's
medical marijuana laws, the trial court sustained the city'sdemurrer to plaintiffs' first cause of
action, without leave to amend. The trial court also sustained without leave to amend
the c i ~ y ' s demurrer to plaintiffs' second cause of action, which asserted the city's ordinance
discriminated against them on the basis of a "disability" or "medical condition" in violation of the
Unruh Civil Rights Act. (Civ. Code, 51.) The trial court observed, "Courts generally take a dim
view of the assertion or claim to a right to do something that is illegal." The trial court also
concluded the act did not apply to legislative bodies but rather only to "business
establishments." (Civ. Code, 51, subd. (b).) Plaintiffs now appeal.
II
DISCUSSION
A. Applicable Authority
1. The CUA
RJN P. 112
Californ ia voters approved Proposition 215 in 1996, codified as the Compassionate Use Act of
1996 at section 11362.5. (See People v. Trippel( 1997) 56 Cal.App.4th 1532, 1546 [66
Cal. Rptr.2d 559] (Trippet); People v. Tilehkooh (2003) 113 Cal. AppAth 1433, 1436 [7
Cal.Rptr. 3d 226] (Ti/ehkooh).) Subdivision (d) of section 11 362. 5 provides: "Section 11357,
relating to the possession of marijuana, and [s]ection 11358, relating to the cultivation of
marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or
cultivates marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician."
743*743 (1) Examining this language, People v. Urziceanu (2005) 132 Cal.AppAth 747, 772-
773 [33 Cal.Rplr.3d 859] (Urziceanu) , explained that "the Compassionate Use Act is a narrowly
drafted statute designed to allow a qualified patient and his or her primary caregiver to possess
and cultivate marijuana for the patient's personal use despite the penal laws that outlaw these
two acts for all others." The Urziceanu court observed that, apart from possession and
cultivation, "the Compassionate Use Act did not alter the other statutory prohibitions related to
marijuana, including those that bar the transportation, possession for sale, and sale of
marijuana." (Urziceanu, supra. 132 Cal.AppAth at p. 773; see also Trippel. supra. 56
Cal.AppAth at p. 1550 [recognizing the CUA's literal terms left primary caregivers vulnerable for
transporting marijuana down a hallway to their patients].) The court continued: "When the
people of this state passed [the CUAJ, they declined to decriminalize marijuana on a wholesale
basis. As a result, the courts have consistently resisted attempts by advocates of medical
marijuana to broaden the scope of these limited specific exceptions. We have repeatedly
directed the proponents of this approach back to the Legislature and the citizenry to address
their perceived shortcomings with this law." (Urziceanu, at p. 773.) Accordingly. Urziceanu held:
"A cooperative where two people grow, stockpile, and distribute marijuana to hundreds
of qualified patients or their primary caregivers. while receiving reimbursement for these
expenses, does nol fall within the scope of the language of the Compassionate Use Act or the
cases that construe it." (Ibid.) Later in its opinion, the Urziceanu court examined whether the
terms of the MMPA required a different conclusion, as we discuss below.
As noted in Urziceanu, the exemptions provided in the CUA for a qualified patient to possess
and cultivate medical marijuana also apply to his or her primary caregiver. The CUA defines a
"primary caregiver" as "the individual deSignated by the person exempted under this section
who has consistently assumed responsibility for the housing, health, or safety of that person." (
11362.5, subd. (e).)
(2) The California Supreme Court has explained that to be a primary caregiver under this
section, an individual must show that "he or she (1) consistently provided caregiving. (2)
independent of any assistance in taking medical marijuana. (3) at or before the time he or she
assumed responsibility for assisting with medical marijuana." (People v. Mentch (2008) 45
Cal.4th 274. 283 [85 Cal. Rptr. 3d 480. 195 P .3d 1061 J (Mentch ).) The high court
in Mentch concluded that a patient may not confer primary caregiver status merely by
designating a person as a primary caregiver. nor does a person qualify simply by providing
medical marijuana to the patient. (fd. at pp. 283-285.) Rather, the person must show "a
caretaking relationship directed at the core survival needs of a seriously ill patient. not just one
single pharmaceutical need." (fd.at p. 286.)
744*744 The electorate. in enacting the CUA. "directed the state to create a statutory plan to
provide for the safe and affordable distribution of medical marijuana to qualrfiedpatients."
(People v. Hochanadel (2009)176 Cal.App.4th 997, 1014 [98 Cal. Rptr.3d 347] (Hochanade/).)
The electorate's stated intent in enacting the CUA was three-fold: first, to "ensure that seriously
itt Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of marijuana in the treatment of
RJN P. 113
[designated illnesses] or any other illness for which marijuana provides relief'; second, to
"ensure that paNentsand their primary caregivers who obtain and use marijuana for medical
purposes under the recommendation of a physician are not subject to criminal prosecution or
sanction"; and third, to "encourage the federal and state governments to implement a plan to
provide for the safe and affordable distribution of marijuana to all patients in medical need of
marijuana." ( 11362.5. subd. (b )(1 )(A)-(C).)
2. The MMPA
In 2003, the Legislature enacted the Medical Marijuana Program Act, effective January 1, 2004,
adding sections 11362.7 through 11362.83 to the Health and Safety Code. (See People v.
Wright (2006) 40 Cal.4th 81, 93 [51 Cal.Rptr. 3d 80,146 P.3d 531] (Wright) .) The express intent
of the Legislature was to "(1 ) Clarify the scope of the application of the [CUA] and facilitate the
prompt identification of qual1ified patientsand their designated primary caregivers in order to
avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to
law enforcement officers. [111 (2) Promote uniform and consistent application of the act among
the counties within the state. [ffi (3) Enhance the access of patients and caregivers to medical
marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, 1 (b )(1 )-
(3), italics added.) The MMPA also expressly stated: "It is ... the intent of the Legislature to
address additional issues that were not included within the [CUA), and that must be resolved in
order to promote the fair and orderly implementation of the [CUA]." (Stats. 2003, Ch. 875,
1 (c).) According to the act's legislative history, "Nothing in [the MMPA] shafl amend or change
Proposition 215, nor prevent patients from providing a defense under Proposition 215 .... The
limits set forth in [the MMPA] only serve to provide immunity from arrest for patients taking part
in the voluntary 10 card program, they do not change [sJection 11362.5(Proposition 215) .... "
(Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No.
420 (2003-2004 Reg. Sess.) as amended Sept. 9,2003, pp. 6-7, italics added.)
I n section 11362.71, the MMPA established a program to facilitate the ". prompt identification
of qualified patients and their designated primary 745*745 caregivers'" (Wright, supra. 40
Cal.4th at p. 93) via a voluntary identification card program, which the Legislature required
counties to implement ( 11362.71, subd. (b), 11362.72; seeCountv of San Diego v. San Diego
NORML (2008) 165 Cal.AppAth 798, 811, 818, 825-828 [81 Cal.Rptr. 3d 461 ] (County of San
Diego) [holding federal law making marijuana illegal did not preempt the MMPA's identification
card program]).
Particularly relevant to this appeal, the MMPA also added section 11362.775, which provides:
"Qualified patients, persons with valid identification cards, and the designated primary
caregivers of qualified patients and persons with identification cards, who associate within the
State of California in order collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under
Section 11357 [(possession of marijuana)], 11358 [(cultivation of marijuana)], 11359
[(possession for sale)]. 11360 [(transportation)]. 11366 [(maintaining a place for the sale, giving
away or use of marijuana)], 11366.5 [(making available premises for the manufacture, storage
or distribution of controlled substances)], or 11570 [(abatement of nuisance created by premises
used for manufacture, storage or distribution of controlled substance)]." (Italics added.)
In Urziceanu, the court observed that "[t]his new law represents a dramatic change in the
prohibitions on the use, distribution, and cultivation of marijuana for persons who
are qualified patients or primary caregivers .... Its specific itemization of the marijuana sales
law indicates it contemplates the formation and operation of medicinal marijuana cooperatives
that would receive reimbursement for marijuana and the services provided in conjunction with
the provision of that marijuana." (Urziceanu, supra, 132 Cal.App.4th at p. 785.)
RJN P. 114
Adding detail to California's quilt of medical marijuana legislation, the MMPA, in section
11362.765, expressly immunizes from state criminal liability, in relation to lawful medical
marijuana use: "Any individual who provides assistance to a qualified patient or a person with
an identification card, or his or her designated primary caregiver, inadministering medical
marijuana to the quallified patient or person or acquiring the skills necessary to
cultivate or administer marijuana for medical purposes to thequalified patient or person." (
11362.765, subd. (b)(3), italics added; see {d., subd. (a) ["Subject to the requirements of this
article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to
criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570."]')
The MMPA also expressly immunizes "[a] qualified patient or a person with an identification
card who transports or processes marijuana for his or 746*746 her ownpersonal medical use."
( 11362.765, subd. (b)(1). italics added.) Section 11362.765, subdivision (b )(2), similarly
immunizes primary caregivers, specifically any "designatedprimal)l caregiver who transports,
processes, administers, delivers, or gives awaymarijuana for medical purposes ... only to
the qualified patient of the primary caregiver, or to the person with an identification card who
has designated the individual as a primary caregiver." (Italics added.) Su bdivision (c) of section
11362.765 addresses compensation. It mandates that "[a] primary caregiver who receives
compensation for actual expenses, including reasonable compensation incurred for services
provided to an eligible ql!Jalified patient or person with an identification card to enable that
person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in
providing those services, or both, shall not, on the sole basis of that fact, be subject to
prosecution or punishment under Section 11359 or 11360,"
The MMPA also "elaborates on" the definition of primary caregiver in the CUA (Hochanadel.
supra. 176 Cal.AppAth at p. 1008.) The MMPA reiterates the definition of a primary caregiver
contained in the CUA, i.e., "th.e individual, designated by aqualified patient ... who has
consistently assumed responsibility for the housing, health, or safety of that patient or person ..
. . " ( 11362.7. subd. (d).) The subdivision goes on to provide examples of the Legislature's
view of persons qualifying as primary caregivers under this definition: (1) Owners and operators
of clinics or care facilities; (2) "An individual who has been designated as a primary caregiver by
more than onequalified patient or person with an identification card, if every qual if i ed patient or
person with an identification card who has deSignated that individual as a primary caregiver
resides in the same city or county as the primary caregiver"; and (3) "An individual who has
been designated as a primary caregiver by a qualified patient or person with an identification
card who resides in a city or county other than that of the primary caregiver, if the individual has
not been designated as a primary caregiver by any other qualified patient or person with an
identification card." ( 11362.7, subd. (d)(1 )-(3).)
The MMPA bars individuals and any collective. cooperative, or other group from transforming
medical marijuana projects authorized under the MMPA into for-profit enterprises. ( 11362.765,
subd. (a) ["nothing in this section shall authorize ... any individual or group to cultivate or
distribute marijuana for profit"].)
3. Attorney General Guidelines
Section 11362.81, subdivision (d), of the MMPA provides: "[T]he Attorney General shall develop
and adopt appropriate guidelines to ensure the security 747*747 and nondiversion of marijuana
grown for medical use by patients qualif ied under the [CUA]." On August 25, 2008. the
California Attorney General issued Guidel'i nes for the Security and Non-diversion of Marijuana
Grown for Medical Use (A.G. Guidelines, or Guidelines) (as of Aug. 18,2010). The AG.
Guidelines' stated purpose is to "(1) ensure that marijuana grown for medical purposes remains
secure and does not find its way to non-patients or illicit markets, (2) help law enforcement
RJN P. 115
agencies perform their duties effectively and in accordance with California law, and (3)
help patientsand primary caregivers understand how they may cultivate, transport, possess,
and use medical marijuana under California law," (Guidelines, supra, at p. 1.)
The A.G. Guidelines provide a definition of "cooperatives" and "collectives." The Guidelines
observe that "[n]o business may call itself a 'cooperative' (or' co-op') unless it is properly
organized and registered as such a corporation under the Corporations or Food and Agricultural
Code." (AG. Guidelines, at p. 8; see Corp. Code, 12201, 12300.) A cooperative "must file
articles of incorporation with the state and conduct its business for the mutual benefit of its
members. [Citation.] ... Cooperative corporations are 'democratically controlled and are not
organized to make a profit for themselves, as such, or for their members, as such, but primarily
for their members as patrons.' [Citation.]" (Guidelines, at p. 8, italics added.) Further,
"[c]ooperatives must follow strict rules on organization, articles, elections, anddistribution of
earnings, and must report individual transactions from individual members each year."
(Ibid., italics added.) Turning to the dictionary, the AG. Guidelines define a "collective" as "'a
business, farm, etc., jointly owned and operatedby the members of a group.' [Citation.]"
(Ibid., italics added.) Given this joint ownership and operation requirement, "a collective should
be an organization that merely facilitates the collaborative efforts of patient and caregiver
members-including the allocation of costs and revenues." (Ibid.)
Pursuant to these definitions, the Attorney General concludes in the Guidelines that a
cooperative or collective "should not purchase marijuana from, or sell to, non-members; instead,
it should only provide a means for facilitating or coordinating transactions between members."
(AG. Guidelines, supra, at p. 8.)
The A.G. Guidelines articulate additional requirements for the lawful operation of cooperatives
and collectives, including that they must be nonprofit operations. (A.G. Guidelines, supra, at p.
9.) They may "acquire marijuana only from their constituent members, because only marijuana
grown by a quallifliled patient or his or her primary caregiver may lawfully
be 748*748 transported by, or distributed to, other members of a collective or cooperative.
[Citations.] ... Nothing allows marijuana to be purchased from outside the collective or
cooperative for distribution to its members. Instead, the cycle should be a closed-circuit of
marijuana cultivation and consumption with no purchases or sales to or from non-members. To
help prevent diversion of medical marijuana to non-medical markets, collectives and
cooperatives should document each member's contribution of labor, resources, or money to the
enterprise. They should also track and record the source of their marijuana." (ld. at p. 10, italics
added.)
Distribution or sale to nonmembers is prohibited: "State law allows primary caregivers to be
reimbursed for certain services (including marijuana cultivation), but nothing allows individuals
or groups to sell or distribute marijuana to non-members. Accordingly, a collective or
cooperative may not distribute medical marijuana to any person who is not a member in good
standing of the organization. A dispensing collective or cooperative may credit its members for
marijuana they provide to the collective, which it may then allocate to other members. [Citation.]
Members also may reimburse the collective or cooperative for marijuana that has been
allocated to them. Any monetary reimbursement that members provide to the collective or
cooperative should only be an amount necessary to cover overhead costs and operating
expenses." (A.G. Guidelines, supra, at p. 10.)
Finally, to aid law enforcement in determining whether marijuana-related activities comply with
the CUA and MMPA, the A.G. Guidelines specifically address "Storefront Dispensaries." (A.G.
Guidelines, supra, at p. 11.) The Attorney General concludes in the Guidelines that while
"dispensaries, as such, are not recognized under the law," "a properly organized and operated
collective or cooperative that dispenses medical marijuana through a storefront may be lawful
RJN P. 116
under California law, but ... dispensaries that do not substantially comply with the guidelines
[covering collectives and cooperatives] are likely operating outside the protections of [the CUA]
and the MMP[A], and ... the individuals operating such entities may be subject to arrest and
criminal prosecution under California law. For example, dispensaries that merely
require patients to complete a form summarily designating the business owner as their primary
caregiver-and then offering marijuana in exchange for cash 'donations'-are likely unlawful."
(AG. Guidelines, supra, at p. 11, italics added.)
(3) "While the Attorney General' s views do not bind us [citation], they are entitled to
considerable weight [citation]." (Freedom Newspapers, Inc. v. Orange County Emplovees
Retirement SYstem (1993) 6 CalAth 821,829 [25 Cal.Rptr.2d 148, 863 P.2d 2181- )
749*749 B. The MMPA Does Not Unconstitutionally
Amend the eUA
(4) The city asserts the MMPA unconstitutionally amends the CUA The California Constitution
bars the Legislature from amending an initiative measure unless the measure itself authorizes
amendment. (Cal. Const., art . II, 10, subd. (c); People v. Cooper (2002) 27 CalAth 38, 44 [ 115
Cal. Rptr.2d 21 9, 37 P.3d 403]. ) It is undisputed the CUA does not provide for legislative
amendment. The city's chall enge fails, however, because the MMPA does not amend the CUA,
as the court in Hochanadef. supra, 176 Cal.AppAth 997 explained.
Hochanadel rejected the same amendment argument the city advances. There, "[t]he People
assert[ed] that section 11362.775, which exempts medical marijuana patients, persons with
valid medical marijuana identification cards and their primary caregivers who form collectives or
cooperatives to cultivate marijuana from prosecution for several drug-related crimes, constituted
an unconstitutional amendment of the CUA." (Hochanadel, supra, 176 Cal.AppAth at p. 101 1.)
Here, the city contends that section 11362.775 of the MMPA, "by dramatically changing the
CUA[,] has unconstitutionally amended it."
(5) In Hochanadel, the court explained this line of attack is "unavailing" because the MMPA
"'amended provisions of the Health and Safety Code regarding regulation of drugs adopted by
the Legislature, not provisions of the CUA.'" (Hochanadel, supra, 176 Cal.App.4th at pp. 1011,
1013, italics added.) The court concluded: II' Because the MMP[A)'s [cooperative and collective]
program has no impact on the protections provided by the CUA, we reject [the] claim that those
provisions are invalidated by ... the California Constitution. '" (Jd. at p. 1013, second brackets
added.) Elaborating, the court observed that section 11362.775 "did not constitute an
amendment of the CUA as it was not intended to, and did not, alter the rights provided by the
CUA Rather, it identifies groups that may lawfully distribute medical marijuana
to patients under the CUA. Thus, it was designed to implement, not amend the CUA."
(Hochanadel, at p. 1013, original italics.) "Indeed," the court noted, "the CUA itself directed the
state to create a statutory plan to provide for the safe and affordable distribution of medical
marijuana to qual ified patients. ( 11362.5, subd. (b)(1 )(C).) Thus, in enacting section
11362.775 the Legislature created what the CUA expressly contemplated and did not
unconstitutionally amend the CUA." (Hochanade/, at p. 1014.)
We agree with Hochanadel. The city relies on language in Urziceanu stating that the MMPA
"represents a dramatic change in the prohibitions on the use, distribution, and cultivation of
marijuana .... Its specific itemization 750*750 of the marijuana sales law indicates it
contemplates the formation and operation of medicinal marijuana cooperatives .... "
(Urziceanu, supra, 132 Cal. AppAth at p. 785, italics added.) The initiative may have prompted
the Legislature to add or change other laws, but this does not mean it amended the initiative.
RJN P. 117
(6) The purpose of the Constitution's ban on legislative amendments is to "''''jealously guard"""
the electorate's initiative power from intermeddling by the Legislature. (People v. Kelly (2010) 47
Cal.4th 1008, 1025, 1030 [103 Cal. Rptr.3d 733, 222 P.3d 186J ["'No other state in the nation
carries the concept of initiatives as "written in stone" to such lengths ... '" as California].)
Accordingly, "amendments which may conflict with the subject matter of initiative measures
must be accomplished by popular vote, as opposed to legislative[] enact[ment] .... "
(Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal. AppAth 1473, 1486 [76
Cal.Rptr.2d 3421. original italics.) Contrary to the city's position, however, the purpose of the
constituti onal ban on amendments is not implicated here. As the Supreme Court
in Kelly observed, "(O]espite the strict bar on the Legislature's authority to amend initiative
statutes, judicial decisions have observed that this body is not thereby precluded from enacting
laws addressi ng the general su bject matter of an initiative." (Kelly, at p. 1025.)
(7) Hochanadel explained that the MMPA did not amend the CUA. Rather, the MMPA amended,
consistent with the CUA, the Health and Safety Code provisions barring the transportation,
distribution and cooperative or collective cultivation of marijuana. (SeeHochanadel, supra, 176
Cal.AppAth at p. 101 3.) By providing immunity from prosecution for those activities when
conducted in compli ance with state law, the MMPA changed the Health and Safety Code.
Because the CUA did not touch on these topics (see 11362.5, subd. (d) [affording immunity
only for personal possession and cultivation of medicinal marijuana]), it necessarily follows that
the MMPA did not expand or restrict the CUA in the manner necessary to constitute an
amendment (seeFranchise Tax Bd. v. Cory (1978) 80 Ca1.ApD.3d 772, 776 [145 Cal.Rptr.
819] ["A statute which adds to or takes away from an existing statute is considered an
amendment."]). Rather, without treading on the electorate's superior power, the Legislature
properly acted within its sphere to define specific transportation, distribution, and collective or
cooperative activities as noncriminal. (See People v. Mills (1978) 81 Cal.App.3d 171, 176- 177
[146 Cal.Rptr. 411] ["The definition of crime and the determi nation of punishment are foremost
among those matters that fall within the legislative domain."].) Consequently, we reject the
argument the MMPA constitutes an amendment of the CUA.
751*751 C. Whether State Law Preempts
the City's Ordinance
1. Standing
(8) Plaintiffs' first cause of action sought a declaratory judgment that the c:ity'sordinance is
preempted by state medical marijuana law embodied in the CUA and MMPA. The city contends
plaintiffs lack standing to obtain declaratory relief. The citydid not demur to plaintiffs' complaint
on this ground, but lack of standing constitutes a jurisdi"ctional defect and therefore may be
raised at any time, even for the first time on appeal. (Common Cause v. Board of
Supervisors (1989) 49 Cal. 3d 432, 438 [261 Cal.Rptr. 574, 777 P.2d 61 01; Color-Vue. Inc. v.
Abrams (1996) 44 Cal.App.4th 1599, 1603-1604 [52 Cal.Rptr.2d 443] .) (9) Plaintiffs' declaratory
j udgment action requires an "actual controversy relating to the legal rights and duties of the
respective parties." (Code Civ. Proc., 1060.) "Courts will decline to resolve lawsuits that do not
present a justiciable controversy, and justiciability 'involves the intertwined criteria of ripeness
and standing.'" (County of San Diego, supra, 165 Cal. AppAth at p. 813.) The standing issue
here consists of whether, simply put, plaintiffs have "incurred an injury capable of redress."
(New York Times Co. v. Superior Court ( 1990) 51 Cal. 3d 453, 466 [273 Cal. Rptr. 98, 796 P.2d
811] .)
(10) The city argues plaintiffs can obtain no redress from a preemption determination because
they cannot show they fall within the CUA's and MMPA's protection. Bul "[a] general demurrer is
RJN P. 118
usually not an appropriate method for testing the merits of a declaratory relief action, because
the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest."
(Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2d ed. 2008) Attacks on
Pleadings, 12.83, p. 52 (hereafter Judges Benchbook).) This is particularly true here because
factual issues abound on whether plaintiffs' activities place them in the category of a lawful
"cooperative" or "collective" under the MMPA. and whether plaintiffs are in fact
"qualified patients" or "primary caregivers" under the act. (See Cal. Judges
Benchbook, supra, 12.83, p. 52 [demurrer inappropriate where factual issues remain].)
The city's oft-repeated, pejorative characterization of QPA as a "storefront dispensary," rather
than a "cooperative" or "collective," is not persuasive. The cityseems to suggest that any
medical marijuana outlet it deSignates as a "dispensary" affronts California medical marijuana
law.ill The city's argument 752*752 fails for two reasons. First, we are here after demurrer, and
QPA is identified nowhere in the complaint or any judicially noticeable material as a "storefront
dispensary." Second, the "dispensary" label-even assuming it is apt-is not dispositive. As the
Attorney General observes in the A.G. Guidelines: while "dispensaries, as such, are not
recognized under the law," "a properly organized and operated collective or cooperative that
dispenses medical marijuana through a storefront may be lawful under California law .... "
(A.G. Guidelines, supra, p. 11.) We perceive no reason at this juncture to disagree with the
Attorney General's assessment.
The city points to Mowdy's claim in the complaint that he is the "designated primary caregiver
for the members of the Association," which consists of "more than fiftyqualified patients"
(italics added), as facts disqualifying him, OPA, and its members from state law protection.
Relying on Mentch, the dty observes "the many customers of a marijuana 'association,' here
the Qlialified Patients Ass'n (OPA), cannot execute pro forma designations of the OPA (or
Mowdy) as their primary caregiver." (Original brackets.) The city concludes: "The QPA [or
Mowdy) cannot qualify as a primary caregiver in these circumstances. A person purchasing
marijuana for medicinal purposes cannot simply designate seriatim, and on an ad hoc basis,
sales centers such as the QPA [or Mowdy] as the patient's 'primary caregiver.'" (Original
brackets.) (See Mentch, supra, 45 CalAth at p. 284.)
(11) But nothing in the complaint, nor any judicially noticeable material, discloses that Mowdy's
relationship with OPA patients is one of mere pro forma des.ignation. True, Mowdy's assertion
he is a "primary caregiver" does not, by itself, establish he qualifies for that legal status under
the CUA and the MMPA, for we do not credit mere conclusions of law stated in the complaint.
(Blank v. Kirwan (1985) 39 Cal.3d 311,318 [216 Cal.Rptr. 718. 703 P.2d 58J.) But neither may
we prejudge, as the city would have us do, that Mowdy is not a legitimate "primary caregiver"
absent facts that disqualify him. Nor, similarly, may we simply conclude QPA is not a collective
or cooperative or that it is not comprised' of qualified patients. A demurrer lies for lack of
standing when the defect appears on the face of the pleading or from judicially noticeable
matters. (See, e.g., Carsten v. Psvchologv Examining Com. (1980) 27 Cal.3d 793, 796 [166
Cal.Rptr. 844. 61 4 P.2d 276]: K/opstock v. Superior Court(1941) 17 Cal.2d 13,19 [108 P.2d
906]; Q'Flaherlv v. Belgum (2004) 115 Cal.App.4th 1044, 1095 [9 Cal.Rptr.3d 2861.) As
discussed, that is not the case here. A summary judgment motion, not demurrer as
the city would have it, may be deployed to "cut through the ... pleadings" (Aguilar v. Atlantic
Richfield Co. (2001) 25 CalAth 826, 843 [107 Cai.Rptr.2d 841, 24 P .3d 4931) on whether
Mowdy in fact qualifies as a primary caregiver and whether QPA is a collective, a cooperative or
comprised of qualified patients. As we explain below, we do not reach the issue of whether
state law preempts the city's ordinance. But at this stage of 753*753 the proceedings,
the ci,ty'sattempt on appeal to torpedo plaintiffs' preemption claim on grounds the CUA and the
MMPA do not apply to them is premature. (See Chemerinsky, Constitutional Law, Principles and
Policies (2d ed. 2002) 2.5, p. 78 [criticizing redressability determinations made prematurely on
the basis of the pleadings].)
RJN P. 119
2. The State Law Preemption Issue Is Not Ripe for Our
Review
We do not decide whether the CUA or the MMPA preempts the city's ordinance because we
conclude the issue is not properly before us. Plaintiffs did not appeal the trial court's order
denying their request for a preliminary injunction restraining enforcement of the ordinance on
preemption grounds. (Code Civ. Proc., 904.1, subd. (a)(6) [an order granting or denying an
injunction is appealable]; Socialist Workers etc. Committee v. Brown (1975) 53 Ca1.ApR.3d 879,
885, rn. 4 [125 Cal.RRtr. 915] [same].) Plaintiffs provide no authority and make no argument
concerning the legal standards for a preliminary injunction. Accordingly, we express no opinion
on whether their request for a preliminary injunction should have been granted, or whether state
law preempts the ci ty's ordinance. The only issue before us is the trial court's ruling, founded
on the preemptive power of federal law, sustaining the city'sdemurrer to the complaint without
leave to amend.
True, the trial court expressed skepticism concerning plaintiffs' claim that state law preempts
the city's ordinance. But the trial court's demurrer ruling refers specifically only to the CUA and
the Unruh Civil Rights Act, not the MMPA. The authorities cited in the trial court's order,
including Ross v. RagingWire Telecommunications, Inc. (2008) 42 CalAth 920 [70 Cal.Rptr.3d
382, 174 P.3d 200] (Ross), did not involve the MMPA.I1l (See Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 680 [36 Cal.Rptr. 3d 495, 123 P.3d 931] ["'An opinion is not authority for
propositions not considered."'].)
The trial court apparently did not consider whether the MMPA's provisions that are distinct from
the C UA, including sections 11362.765 and 11362.775, preempt thecity's ord inance. The cou rt
in People ex rei. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1390 [70 Cal.Rptr.2d 20), held
that the "general availability of injunctive relief under section 11570 against buildings and drug
houses used to sell controlled substances is not affected by" the CUA. The Legislature
subsequently enacted the MMPA. Sections 11362.765 and 11362.775 of the MMPA immunize
operators of medical marijuana dispensaries-provided they are qualified patie'nts, possess
valid medical marijuana identification cards, or are primary caregivers-from prosecution under
state 754 *754 nuisance abatement law ( 11570) "solely on the basis" that they use any
"building or place ... for the purpose of unlawfully selling, serving, storing, keeping,
manufactu ring, or giving away any controlled substance .... " Sections 11362.765 and
11362.775 also provide qualifying persons immunity from nonfederal criminal sanctions
imposed "solely on the basis" of "open[ing] or maintain[ingj any place for the purpose of
unlawfully selling, giving away, or using any controlled substance .... " ( 11366) or for
"rent[ing], leas[ing], or mak[ing] available for use ... [a] building, room, space, or enclosure for
the purpose of unlawfully manufacturing, storing, or distributing any controlled substance .. ," (
11366.5).
Whether the MMPA bars local governments from using nuisance abatement law and penal
legislation to prohibit the use of property for medical marijuana purposes remains to be
determined.
w
Unlike in Ross, where the Supreme Court observed that "[t]he operative
provisions of the [CUAj do not speak to employment law" (Ross, supra,42 Cal. 4th at p. 928), the
MMPA explicitly touches on land use law by proscribing in sections 11362.765 and 11362.775
the application of sections 11570, 11366, and 11366.5 to uses of property involving medical
marijuana. Here, viewing the allegations of the complaint most favorably to plaintiffs, as is
required on demurrer, it appears incongruous at first glance to conclude a city may criminalize
as a misdemeanor a particular use of property the state expressly has exempted from "criminal
liability" in sections 11362.765 and 11362.775, Put another way, it seems odd the Legislature
would disagree with federal policymakers about including medical marijuana in penal and drug
house abatement legislation (compare 21 U.S.C. 812, 856 with Health & Saf. Code,
RJN P. 120
11362.765, 11362.775), but intend that local legislators could side with their federal- instead of
state-counterparts in prohibiting and cri minalizing property uses "solely on the basis" of
medical marijuana activities. ( 11362.765, 11362.775.) After all, local entities are creatures of
the state, not the federal, government.
But in supplemental briefing at our invitation, the city and its amici curiae demonstrate the issue
of state preemption under the MMPA is by no means clear cut or easily resolved on first
impressions. They argue with much 755*755 appeal, for example, that if the immunity from
"criminal liability" provided in sections 11362.765 and 11362.775 a pplies to "the well-recognized
quasi-criminal nature of [s)ection 11570," the "careful phrasing of the MMPA provides no
suggestion that this narrow exclusion was intended to wholly eliminate any remedy for activities
determined to be an ordinary nuisance under ... legal authority" apart from section
11570.19.J (Original italics; see also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, 70, p. 144
[noting 11570 qualifies as "civil in nature," but also "quasi-criminal in effect" and "character")')
We do not decide these issues.
As anxious as we, the parties, and amici curiae are to reach this important and interesting
question of state preemption, this case in its present posture is not the occasion to do so.
Because it appears the trial court, apart from the asserted fundamental defect of federal
preemption, did not address or determine that plaintiffs failed to state a claim for declaratory
relief under the MMPA, as opposed to the CUA or Unruh Civil Rights Act, it is not our province
to do so in the first instance. Moreover, as noted, factual issues that we may not resolve on
appeal remain, including whether plaintiffs qualify as primary caregivers or otherwise for the
MMPA's asserted protection against 756*756 an ordinance imposing criminal punishment for
operating a dispensary, and the manner in which plaintiffs intend to conduct their medical
marijuana activities.
(12) In our common law tradition, the "legal rules that emerge from judicial opinions are
'precepts attaching a definite detailed legal consequence to a definite, detailed state of facts.'"
(Aid isert, Max Rosenn: An Ideal Appeffate Judge (2006) 154 U.Pa. L.Rev. 1025, 1030-1031,
quoting Pound, Hierarchy of Sources and Forms in Different Systems of Law (1933) 7 Tul.
L.Rev. 475,482.) Here, we have precious few facts concerning plaintiffs' planned medical
marijuana activities. At demurrer. on the few facts known about the manner in which QPA
intends to operate, we cannot say plaintiffs have failed to state a cause of action to obtain
declaratory judgment on whether the MMPA preempts the city's ordinance.
(13) In sum, demurrer is not the proper context to reach and resolve the merits of plaintiffs' claim
for declaratory judgment. "When," as here, "the complaint sets forth facts showing the existence
of an actual controversy between the parties relating to their respective legal rights and duties
and requests that these rights and duties be adjudged, the plaintiff has stated a legally sufficient
complaint for declaratory relief. It is an abuse of discretion for a judge to sustain a demurrer to
such a complaint and to dismiss the action, even if the judge concludes that the plaintiff is not
entitled to a favorable declaration." (Judges Benchbook, supra, 12.83, p. 52.) As noted, "the
plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiffs interest." (Ibid.)
We express no opinion on the merits of the parties' positions, but instead remand to allow the
parties and the trial court to address these issues in further proceedings, including summary
judgment or trial, if triable issues of fact remain unresolved.]
We now turn to the trial court's conclusion the city was entitled to prevail on demurrer based on
federal preemption.
D. Federal Law Does Not Preempt the CUA or the
MMPA
RJN P. 121
The city asserts, and the trial court agreed, that plaintiffs' complaint fails to state a cause of
action for declaratory relief under the CUA and the MMPA because federal law preempts those
enactments. Noting that the Controlled Substances Act (CSA) continues to prohibit the
possession of marijuana even for medical users (see 21 U.S.C. 812, 844(a); Gonzales v.
Raich (2005) 545 U.S. 1.26-29 (162 L.Ed.2d 1, 125 S.Ct. 2195)
(Gonzales); United 757*757 States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S.
483,491-495 [149 L.Ed.2d 722, 121 S.Ct. 17111 (Oakland Cannabis)) , the trial court viewed the
CUA and the MMPA as an attempted "stateD override of federal law to make the drug marijuana
legal, or ... to make legal the sale of marijuana through medical marijuana dispensaries."
In Gonzales, the high court held intrastate growth and use of medical marijuana under the CUA
did not place the defendants there beyond the CSA's reach, since Congress's plenary
commerce power extends to these activities. (Gonzales. supra. 545 U.S. at PQ. 17, 26-29.) And
in Oakland Cannibis. the court held the CSA did not authorize an implied defense to its penal
provisions based on medical necessity, even where a state strictly controlled access to medical
marijuana. (Oakland Cannibis, supra, 532 U.S. at p. 491 .) To the contrary. the terms of the CSA
reflect Congress's conclusion that marijuana seNes no medical purpose. (Oakland Cannibis, at
p. 491.) Relying on Gonzales and Oakland Can nib is and reasoning that states do not have
authority to override federal law, the trial court found that federal law preempted the CUA and
the MMPA. Accordingly, the trial court sustained without leave to amend the city'sdemurrer to
plaintiffs' first cause of action for a declaratory judgment that state law preempted
the ci t y's ordinance.
Whether federal law preempts state law is a legal issue that we review de novo. (Spielholz v.
Superior Court (2001) 86 Cal.App.4th 1366, 1371 [104 Cal.Rptr.2d 197] (Spielholz) .) As we
explain below. California's decision in the CUA and the MMPA to decriminalize for purposes of
state law certain conduct related to medical marijuana does nothing to "override" or attempt to
override federal law, which remains in force. (See, e.g., Gonzales and Oakland Cannibis.) To
the contrary, because the CUA and the MMPA do not mandate conduct that federal law
prohibits, nor pose an obstacle to federal enforcement of federal law, the enactments'
decriminalization provisions are not preempted by federal law.
(14) Congress has the power to preempt state law under the Constitution's supremacy clause.
(U.S. Const., art. VI, cI. 2; see, e.g., Crosbv v. National Foreign Trade Council( 2000) 530 U. S.
363, 372-374 [147 L.Ed.2d 352, 120 S.Ct. 2288] (Crosby); Gibbons v. Ogden (1824) 22 U.S. 1,
211 [6 L.Ed. 23]; McCufloch v. Mary/and (1819) 17 U.S. 316,427 [4 L.Ed. 5791.) "[T]here is, "
however, "a strong presumption against federal preemption when it comes to the exercise of
historic police powers of the states. [Citations.] That presumption will not be overcome absent a
clear and manifest congressional purpose." (People v. Boultinghouse (2005) 134 Cal.App.4th
619,625 [36 Cal.Rptr.3d 244] (Boultinghouse).) Because regulation of medical practices and
state criminal sanctions for drug possession are historically matters of state police power, we
must interpret any federal 758*758 preemption in these areas narrowly. (Countv of San Diego.
supra. 165 Cal.App.4th at pp. 822-823. )
(15) Our Supreme Court has identified "four species of federal preemption: express, conflict,
obstacle, and field. [Citation.] rm First, express preemption arises when Congress' define[s]
explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption
fundamentally is a question of congressional intent, [citation], and when Congress has made its
intent known through explicit statutory language. the courts' task is an easy one.' [Citations.]
Second, conflict preemption will be found when simultaneous compliance with both state and
federal directives is impossible. [Citations.] Third, obstacle preemption arises when '''under the
circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.'" [Citations.]
Finally, field preemption, i.e., 'Congress' intent to pre-empt all state law in a particular area,'
RJN P. 122
applies 'where the scheme of federal regulation is sufficiently comprehensive to make
reasonable the inference that Congress "left no room" for supplementary state regulation.'
[Citation.)" (Viva! Internal. Voice for Animals v. Adidas Promotional Retail Operations.
Inc. (2007) 41 Cal.4th 929, 935-936 [63 Cal. Rptr. 3d 50, 162 P.3d 5691, fn. omitted (Viva!).)
The first and the last of the foregoing categories do not apply here, given language in the CSA
"demonstrat[ing) Congress intended to reject express and field preemption of state laws
concerning controlled substances." (Countv ot San Diego. supra. 165 Cal.AppAth at p. 819.)
Specifically, section 903 of title 21 of the United States Code provides: "No provision of this
subchapter shall be construed as indicating an intent on the part of the Congress to occupy the
field in which that provision operates, including criminal penalties, to the exclusion of any State
law on the same subject matter which would otherwise be within the authority of the
State, unless there is a positive contlictbetween that provision of this subchapter and that State
law so that the two cannot consistently stand together." (Italics added.) With this language,
Congress declined to assert express preemption in the area of controlled substances and
directly foreswore field preemption (County of San Diego, at p. 819), leaving only conflict
preemption and obstacle preemption as potential bases supporting the trial court's preemption
ruling.
1. Conflict Preemption
Conflict preemption exists when "simultaneous compliance with both state and federal directives
is impossible." (Viva!. supra. 41 Cal.4th at p. 936.) The city does not explain how any of the
state law decriminalization provisions of the CUA or the MMPA create a positive conflict with
federal law, so that it is 759*759 impossible to comply with both federal and state laws. A claim
of positive conflict might gain more traction if the state required: instead of merely exempting
from state criminal prosecution, individuals to possess, cultivate, transport, possess for sale, or
sell medical marijuana in a manner that violated federal law. But because neither the CUA or
the MMPA require such conduct, there is no "positive conflict" with federal law, as contemplated
for preemption under the CSA. (21 U.S.C. 903.) In short, nothing in either state enactment
purports 10 make it impossible to comply simultaneously with both federal and state law.
(16) As we explained in City of Garden Grove v. Superior Court (2007) 157 Cal.AppAth 355,
385 [68 Cal.Rptr.3d 656] (Garden Grove), "no conflict" arises "based on the fact that Congress
has chosen to prohibit the possession of medical marijuana, while California has chosen not to."
Simply put, "California's statutory framework has no impact on the legality of medical marijuana
under federal law .... " (Ibid.; accord,Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977. 981 (state
law allowing felons to carry guns not preempted by contrary federal law since "there is no
conflict between" the two).) As we observed in Garden Grove, the high court's decision
in Gonzalesdemonstrated the absence of any conflict preventing coexistence of the federal and
state regimes since "'[elnforcement of the CSA can continue as it did prior to the [CUA1.'"
(Garden Grove, at p. 385.) No positive conflict exists because neither the CUA nor the MMPA
require anything the CSA forbids.
The city asserts, without explanation, that "[t]he requirement that cities, in effect, permit
storefront dispensaries to operate within their boundaries positively conflicts with the CSA." It is
true that California and the federal government have conflicting views of the potential health
benefits of marijuana. But that does not mean the application of state and federal laws are in
conflict. IJ slate law in fact preempts thecity's ordinance-a question we have noted is not yet
ripe in this proceeding, we discern nothinQl in the city's. compliance with state law that would
require the violation of federal law. The federal CSA does not direct local governments to
exercise their regulatory, licensing, zoning, or other power in any particular way. Consequently,
acHy's compliance with state law in the exercise of its regulatory, licensing, zoning, or other
RJN P. 123
power with respect to the operation of medica! marijuana dispensaries that meet state law
requirements would not violate conflicting federal law. And we see no reason to suppose state
law preemption of the ordinance would require a city or its employees or agents to operate a
medical marijuana dispensary or otherwise engage in conduct prohibited by the CSA. The fact
that some individuals or collectives or cooperatives might choose to act in the absence of state
criminal law in a way that violates federal law does not implicate the city in any such violation.
As we observed in Garden Grove, governmental entities do not incur aider and abettor or direct
liability760*760 by complying with their obligations under the state medical marijuana laws.
(Garden Grove. supra. 157 Cal. ARRAth at RR. 389-390; accord, Countv of San Diego,
supra, 165 Cal.AppAth at p. 825, fn . 13.) Consequently, we conclude the city'spositive conflict
argument is without merit.
2. Obstacle Preemption
(17) Obstacle preemption does not support the trial court's preemption determination either. A
state enactment becomes a nullity under obstacle preemption when, "'''under the circumstances
of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress. '" [Citations.]" (Viva!. supra, 41
Cal. 4th at R. 936.) If the purpose of the federal act'" cannot otherwise be accomplished-if its
operation within its chosen field else must be frustrated and its provisions be refused their
natural effect-the state law must yield to the regulation of Congress within the sphere of its
delegated power.'" (Crosby, supra, 530 U.S. at p. 373. italics added.)
In County of San Diego, the court concluded the MMPA's "identification card laws do not pose a
significant impediment to specific federal objectives embodied in the CSA" because the CSA's
purpose "is to combat recreational drug use, not to regulate a state's medical practices."
(County of San Diego, supra, 165 Cal.ApR .4th at RR. 826-827) citing Gonzales v. Oregon (2006)
546 U.S. 243, 272-273 [163 L.Ed.2d 748, 126 S.Ct. 904] [construing CSA as a "statute
combating recreational drug abuse" rather than as an "expansive" interposition of "federal
authority to regulate medicine"].)
Here, the city identifies section 11362.775, enacted by the MMPA, as the specific state
statutory obstacle triggering federal preemption. According to the city, this section "poses a
significant impediment" to the CSA's purpose of combating recreational drug use because it
"is being abused by persons and groups to open storefront d ispensa ries for profit." (Italics
added.) As noted ante, however, the MMPA bars individuals and any collective, cooperative, or
other group from transforming medical marijuana projects authorized under the MMPA into
profiteering enterprises. ( 11362.765, subd. (a) ["nothing in this section shall authorize ... any
individual or group to cultivate or distribute marijuana for profit"].)
(18) The c i ~ t y further explains "[t]he 'obstacle' to federal goals presented by Section 11362,775
is the creation of the exemption for collectives," which is "being abused" "by allowing the
diversion of 'medical' marijuana to those not qualified to use it." But thecity's complaint is
thus not that state law amounts to an obstacle to federal law, but that "abuseD" or violation of
state law does. These circumstances call for enforcement of the state law, not
its 761 *761 abrogation. Upholding the law respects the state's authority to legislate in matters
historically committed to its purview. (Boultinghouse, supra, 134 Cal.App.4th at p. 625.)
(19) In any event, obstacle preemption only applies if the state enactment undermines or
conflicts with federal law to such an extent that its purposes ,,' cannot otherwise be
accomplished .... '" (Crosby, supra, 530 U.S. at RR. 373-374 [holding Mass. law restricting
purchase of goods or services from companies doing business in Burma conflicted with federal
legislation delegating control of economic sanctions to the President).) Preem ption theory,
RJN P. 124
however, is not a license to commandeer state or local resources to achieve federal objectives.
As Judge Kozinski has explained: "Thatpatients may be more likely to violate federal law if the
additional deterrent of state liability is removed may worry the federal government, but the
proper response-according to New York and Printz-is to ratchet up the federal regulatory
regime, notto commandeer that of the state." (Conant v. Walters (9th Cir. 2002) 309 F.3d 629,
646 (conc. oon. of Kozinski , J.), original italics.)
On the facts presented in County of San Diego, the court noted "the unstated predicate" of the
obstacle preemption argument was "that the federal government is entitled to conscript a state's
law enforcement officers into enforcing federal enactments, over the objection of that state, and
this entitlement will be obstructed to the extent the identification card precludes California's law
enforcement officers from arresting medical marijuana users." (Countv of San Diego, supra, 165
Cal.AppAth at p. 827.) The court rejected the argument, as follows: "The argument falters on its
own predicate because Congress does not have the authority to compel the states to direct their
law enforcement personnel to enforce federal laws. In Printz v. United States(1997) 521 U.S.
898 [138 L. Ed.2d 914, 117 S.Ct. 2365] , the federal Brady Act purported to compel local law
enforcement officials to conduct background checks on prospective handgun purchasers. The
United States Supreme Court held the 10th Amendment to the United States Constitution
deprived Congress of the authority to enact that legislation, concluding that 'in [New York v.
United States (1992) 505 U.S. 144 [120 L.Ed.2d 120, 112 S.Ct. 2408] we ruled] that Congress
cannot compel the States to enact or enforce a federal regulatory program. Today we hold that
Congress cannot circumvent that prohibition by conscripting the State's officers directly. The
Federal Government may neither issue directives requiring the States to address particular
problems, nor command the States' officers, or those of their political subdivisions, to administer
or enforce a federal regu latory program.' [Citation.]" (County of San Diego, at pp. 827 -828.)
Just as the federal government may not commandeer state officials for federal purposes,
a city may not stand in for the federal government and rely 762*762 on purported federal
preemption to implement federal legislative policy that differs from corresponding, express state
legislation concerning medical marijuana. Tilehkooh, supra, 113 Cal.AopAth 1433 is instructive.
There. the court held the CUA "provides a defense to a probation revocati on based on
marijuana possession or use." (1 13 Cal.AppAth at p. 1445.) The People argued the defendant
could not raise the CUA as a defense to revocation of his probation based on marijuana
possession, citing the probation condition that the defendant obey not only the laws of
California, but also the laws of the United States. The court, however, was not persuaded. It
explained, liThe People have misunderstood the role that the federal law plays in the state
system. The California courts long ago recognized that state courts do not enforce the federal
criminal statutes. 'The State tribunals have no power to punish crimes against the laws of the
United States, as such. The same act may, in some instances, be an offense against the laws of
both, and it is only as an offense against the State laws that it can be punished by the State, in
any even!.' [Citations.]" (113 Cal.ARRAth at RR. 1445-1446, fn. omitted.)
Continuing, the Tilehkooh court reasoned, "Since the state does not punish a violation of the
federal law 'as such,' it can only reach conduct subject to the federal criminal law by
incorporating the conduct into the state law.ill The People do not claim they are enforcing a
federal criminal sanction attached to the federal marijuana law. Rather, they seek to enforce the
state sanc1ion of probation revocation which is solely a creature of state law. [Citation.]"
(Tilehkooh. supra. 113 Cal.App Ath at o. 1446.) But as Tilehkooh explained, "The state cannot
do indirectly what it cannot do directly. That is what it seeks to do in revoking probation when it
cannot punish the defendant under the criminal law. [11] ... [11] California courts do not enforce
the federal marijuana possession laws when defendants prosecuted for marijuana possession
have aqualified immunity under [the CUA]. Similarly, California courts should not enforce
federal marijuana law for probationers who qualify for the immunity provided by [the CUA)."
(Jd. at pp. 1446-1447.)
RJN P. 125
(20) These principles apply a fortiori to a city-a creature of the state. As we explained
in Garden Grove, the city there could not "invoke and rely solely on federal law to justify a
particular sanction (i.e., the destruction of Kha's [medical marijuana]) when Kha's conduct was
consistent with, and indeed sanctioned under, state law." (Garden Grove. supra. 157
Cal.ApoAth at p. 380.) "Applying the reason[ing] of Tilehkooh, " we concluded that "judicial
enforcement of federal drug policy is precluded in this case because the act in question-
possession of medical marijuana-does not constitute an offense against the laws of both the
state and the federal governments." (Ibid.) 763 *763 Quoting Tilehkooh, we explained that
"[b]ecause the act is strictly a federal offense," the city had "'''no power to punish [it] as such."'"
(Garden Grove, at p. 380, original italics.)
The same is true here. The city may not justify its ordinance solely under federal law (Garden
Grove. supra. 157 Cal.AppAth at p. 380; Tilehkooh. supra. 113 Cal.AppAth at pp. 1445-1446),
nor in doing so invoke federal preemption of state law that may invalidate
the city's ordinance.ll!l The city's obstacle preemption argument therefore fails.
(21) Thus, the trial court erred when it sustained the city's demurrer on the basis of federal
preemption. A petition for a declaratory judgment is itself a valid cause of action, and not merely
a request for relief on other grounds. (Code Civ. Proc., 1060.) Because the city has identified
no defect on the face of plaintiffs' complaint concerning their cause of action for declaratory
judgment that the city's ordinance is preempted by state law, the city's demurrer fails and we
therefore reverse and remand for proceedings consistent with this opinion.
E. The Trial Court Properly Sustained
the City'sDemurrer to Plaintiffs' Unruh Civil Rights Act
Claim
Plaintiffs contend the trial court erred by sustaining the city's demurrer to their second cause of
action, in which they claimed the city's ordinance severely restricting or banning medical
marijuana dispensaries, under threat of criminal prosecution, violated civil rights protected by
the Unruh Civil Rights Act. (See Civ. Code, 51, subd. (b); see generally 8 Witkin, Summary of
Cal. Law (10th ed. 2005) Constitutional Law, 898(2), p. 376.) The act's purpose "is to compel
recognition of the equality of all persons in the right to the particular service offered by an
organization or entity covered by the act." (Curran v. Mount Diablo Council of the Bov
Scouts (1983) 147 CaLApo.3d 712.733 [195 Cal.Rptr. 325].) "Emanating from and modeled
upon traditional 'public accommodations' legislation, the Unruh Act expanded the reach of such
statutes from common carriers and places of public accommodation and recreation, e.g.,
railroads, hotels, restaurants, theaters and the like, to 764*764 include' all business
establishments of every kind whatsoever.'" (Marina Point. Ltd, v. Wo/fson(1982) 30 Cal.3d 721.
731 [180 Cal.Rptr. 496, 640 P.2d 1151.)
Specifically, the act's operative provision, Civil Code section 51, subdivision (b), provides: "All
persons within the jurisdiction of this state are free and equal, and no matter what their sex,
race, color. religion, ancestry, national origin, disability, medical condition, marital status, or
sexual orientation are entitled to the full and equal accommodations. advantages, facilities,
privileges, or services in all business establishments of every kind Whatsoever."
(22) Our task in examining any enactment "is to ascertain and effectuate legislative intent.
[Citations.] We turn first to the words of the statute themselves, recognizing that 'they generally
provide the most reliable indicator of legislative intent.' [Citations.] When the language of a
statute is 'clear and unambiguous' and thus not reasonably susceptible of more than one
RJN P. 126
meaning, ''''''there is no need for construction, and courts should not indul ge in it.""" [Citations.]"
(People v. Gardeley (1996) 14 CalAth 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 7131.)
(23) The trial court correctly concluded the Unruh Civil Rights Act does not apply to
the city's enactment of legislation. In Burnett v. San Francisco Police Department(1995) 36
Cal.App.4th 1177 [42 Cal. Rptr. 2d 879] (Burne/f) , the court observed: "By its plain language, the
Act bars discrimination based on ' sex, race, color, religion, ancestry, national origin, or disability'
by 'business establishments.' [Citation.] Nothing in the Act precludes legislative bodies from
enacting ordinances which make age distinctions among adults." (ld. at pp. 1191-1192, original
italics.) Because a cityenacting legislation is not functioning as a "business establishmentO," we
conclude the act does not embrace plaintiffs' claims against the city for discrimination based on
a disability or medical condition calling for the use of medical marijuana.
(24) A federal district court, in Gibson v, County of Riverside (C.D,Cal. 2002) 181 F.Supp,2d
1057,1093 (Gibson), has disagreed with Burnell on grounds that the Unruh Civil Rights Act
forbids discrimination "'in all business establishments'" and not just by "'business
establishments.'" We are not persuaded. First, the decisions of the lower federal courts are not
binding precedent (Meta/clad Corp. v. Ventana Environmental Organizational
Partnership (2003) 109 Cal.App.4th 1705, 1715 [1 Cal.Rptr.3d 3281), particularly on issues of
state law. Second, while it is true that legislation may not immunize a business from Unruh Civil
Rights Act claims for discrimination that occurs in that establi shment (see Gibson, at p. 1093,
relying on Orloff v. Los Angeles Turf Club (1 951) 36 Cal.2d 734, 737 [227 P.2d 4491), it does
not765*765 follow that enacting legislation, as here, transforms the governmental entity into a
"business establishmentO" that is subject to a lawsuit under the express terms of the act.
Because the terms of the Unruh Civil Rights Act expressly apply to "business establishments,"
we see no room for its application to the city's legislative action here. Accordingly, we agree
with Burnett and disagree with Gibson. The act does not apply to the city in the circumstances
here, and the trial court therefore properly sustained the city's demurrer to plaintiffs' second
cause of action.
III
DISPOSITION
We affirm the trial court's order concluding plaintiffs failed to state an Unruh Civil Rights Act civil
rights cause of action, but reverse the judgment of dismissal and reinstate plaintiffs' cause of
action seeking declaratory judgment on whether the CUA or the MMPA preempt
the city's ordinance. Each side shall bear its own costs for this appeal.
Rylaarsdam, Acting P. J., and Fybel, J., concurred.
ill All further statutory references are to the Health and Safety Code untess otherwise specified.
W As noted in Men/ch, Catifomia is not atone, nor an outlier among the states in decriminatizing medical marijuana; at least
12 states have done so despite the continuing federal ban, and the majority of those states have established a more lenient
threshold for creating an authorized primary caregiver relationship. (See Menlch. supra, 45 CalAth at p. 287. tn. 8.)
ruin Ross. the Supreme Court concluded the CUA did not prohibit an employer from terminating an employee for using
medical marijuana.
ill City of Claremont v. Kruse (2009) 177 Cal.AppAth 1153 1100 Cal. Rolf. 3d 1), on which the city relies, did not involve an
ordinance like Anahei m's, which potentially contradicts sections 11362.765 and 11362.775 by making the use of property a
crime "solely on the basis" of otherwise lawful medical marijuana actiVity. Thecity also relies on City of Corona v.
Naulls (2008) 166 Cal.ApQAth 418 [83 Cal.Rptr.3d 11, which dd not involve or discuss section 11362.765 or
section 11366, 11366.5, or 11570. Additionally, unlike the scenario here, both Kruse and Naulls involved plaintiffs that
ignored or circumvented established procedures for obtaining ::I business license, instead of seeking a declaratory judgment.
And both cases involved temporary moratoriums rather than the permanent dispensary ban alleged here. Again, cases are
not determinative for issues not considered.
ll Observing that section 11570 "deems' {e]very building or place used for the purpose of unlawfully selling, serving,
storinQ, keepinQ, manufacturin[1, or QivinQ away any controlled substance' to be a public nuisance," counsel for Tehama
County, as amicus cUriae for the city, argues: "At very most. the MMPA's exclusion of qualified persons from [s)ectlon
11570 would preempt an ordinance that similarly attempted to proscribe every premises upon which qualified medical
marijuana activities take place," (OriQinal italics.) According to counsel, "Anaheim's Ordinance No, 6067 does no such
thing. Rather, the Ordinance prohibits a certainmannerof conducting such activities within City limits, specifically by
regulating the number of persons that may engage in such activity upon a single premises. (See Anaheim Mun. Code,
4.20.020 (defining a regulated dispensary as a 'facllity or location where medical marijuana is made available to andlor
distributed by or to three or more' qualified personsl.)" (Original italics.)
The city views its ordinance as a complete ban on typical medical marijuana dispensaries. A ban accomplished by local
legislation is lawful. according to the city. because "(t]he Legislature. in adopting the MMP[A). did not
exempt qualified persons from a[IIJ Criminal or civil liability. on:y specified criminal statutes." The city also argues that the
immunities provided in section 11362.775 apply, by the terms of the statute, only to collective or cooperative "cultivat(ion]" of
medical marijuana. Conceivably, the agricultural and group nalure of such an undertaking might heighten a local
government's interest in regulating or banning such uses, particular1y in a dense urban environment. If the city is correct,
however, that the MMPA authorizes combined efforts only for cultivating marijuana and not for activities such as storing or
dispensing it away from the cultivation site (compare 11362.775 with 11362.765). the absence of a collective or
cooperative means to distribute medical marijuana to qualified persons may suggest the Legislature intended nearby
access through widespread cultivation locations. On this view, local authorities would have grounds to ban typical
dispensaries If they lack a role in the actual cultivabon process, but perhaps not bar altogether, for example, cooperative
marijuana gardens or collective cultivation sites where qualified patients or their primary caregivers could obtain their
medication.
ll Accordingly, we must deny as moot in this appeal plaintiffs' request for judicial notice conceming the legislative history of
the MMPA
ill We note such incorporation is still subject to analysis under the Constitution's Supremacy Clause.
llln PeDDie v. Morel (2009) 180 CalAppAth 839 [104 CalRplr.3d 11. a concurring justice distinguishedTilehkooh based on
the Legislature's subsequent enactment of section 11362.795, amending the MMPA. Section 11362.795, by specifying a
defendant may seek confirmation from the trial court that he or she is allowed to use medical marijuana on probation,
suggests the trial court may impose a no-use probation condition, despite the CUA and MMPA and independent of federal
law. (Morel, at pp. 853-857.) This conclusion, however, does not undermine the rationale of Tilehkooh, but instead
demonstrates that section 11362.795 operates as a matter of state law and not federal preemption. Section 11362.795 has
no bearing on the city's reliance on federal preemption to obtain demurrer.
RJN P. 128
EXHIBIT 18
RJN P. 129
No.: G048303
TN THE
qcourt of
ST ATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARTIN MODIANO, an individual; HELAINE JONES,
an individual; KEVIN BUTCHER, an individual; MARLA
JAMES, an individual; and PATIENT MED-AID,
a non-profit group of patients associated together under
Ca. Health & Safety Code 11362.775,
Plain t{ff.-'\/Appellan ts,
vs.
CITY OF ANAHEIM, a CalifOIllia municipal
TOM T AlT, in his capacity as Mayor of Anaheim; HENRY W.
STERN, in his capacity as City Treasurer of Anaheim,
DejendantslRe5pondenls.
Hon. David Chaffee, Judge
Superior Court of Orange County
Judgment entered March 14,2013
No.30-2012-00601853-CU-CR-CJC
APPELLANTS' OPENING BRIEF
Matthew Pappas, SBN: 171860
Lee Durst, SBN: 69704
22762 Aspan Street, #202-107
Lake Forest, CA 92630
Telephone: (949) 382-1486
Facsimile: (949) 242-2605
RJN P. 130
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................... III
ISSUES PRESENTED ....... ... ..... .... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ............ VIII
INTRODUCTION .............................................................................................. 1
STANDARD OF REVIEW ............................................................................... 2
DISCUSSION ..................................................................................................... 2
I. A LAW THAT DISCRIMINATES AGAINST PATIENTS VIOLATES
THE STATE'S DISABLED PERSONS ACT ................................................. 2
A. THEDPA PROHIBITS DISCRlMINATION. ........................................................ 3
B. THE PLAINTIFFS/APPELLANTS ARE QUALrFIED PROTECTED INDIVIDUALS
UNDER CA. Gov 'T CODE 12926 AND 12926. 1 ............................................. 5
C. CALIFORNIA LA W INCORPORATES, STRENGTHENS, AND REINFORCES
PROTECTIONS THAT PROHIBIT CITY AND STATE LAWS THAT F ACIALL Y OR BY
OPERATION DISCRIMINATE AGAINST THE DISABLED ......................................... 8
1. Both the DPA and the Unruh Civil Righls Acl prohibit ciry laws Ihat
discriminate against the disabled .. .. ... ............. ........... .. ... ................ ..... .. .. .... 9
2. California law integrates the proteclions ofrights included in the ADA
and overrides Ihal federal law 's definitions of disabWly and "unlawful"
drug use . ...................................................................................................... 11
D. CALIFORNIA'S MEDICAL MARlJUANA LAWS WERE ENACTED FOR
INDIVIDUALS WHO ARE PROTECTED BY THE DPA ........................................... 12
1. The MMPA refers directly to disabiliry law. ........................................ 13
2. The collective at issue here has slanding 10 asserl a DPA
discrimination claim ................................................................................... 14
3. The MMPA decriminalizes dislribution of medical marUuana solely for
people independently protectedfrom discrimination by the DPA and Unruh.
15
E. THE ACTIONS TAKEN AGAINST THE PATIENTS IMPROPERLY DISCRIMINATE
AGAINST THEM AS WELL AS OTHER DISABLED INDIVIDUALS ........ ... ... .. .......... 16
1. The law at issue in this case only targets people who use marijuana
with a doctor's prescription to treal their disabilities . ........ ...... 17
RJN P. 131
2. The law at issue targets medical marijuana collectives and dispensaries
but does NOT larget medical clinics, methadone clinics, and pharmacies,
all of which are comparable uses . ............................................................... 18
3. The Plaintiffs/Appellants alleged evidence ofper se discrimination by
Anaheim . ...................................................................................................... 19
4. Medical marijuana patients are protected at least as much as
methadone patients are protected under the DPA . ..................................... 21
5. Through "disparate impact, " a state or local law can discriminate
against disabled individuals . ....................................................................... 22
F. WHILE STATE MEDICAL MARJJUANA LAW DOES NOT GRANT PATIENTS THE
RIGHT TO BE ACCOMMODATED, THEY ARE NONETHELESS PROTECTED FROM
DISCRIMINATION BY THE DP A ........................................................................ 24
G. THE CLAIMS IN THIS CASE DO NOT INVOLVE ACCOMODA TION. .... . .. .. . .. . .... 26
H. ZONING LAWS ARE A "PROGRAM OR ACTIVITY" FOR PURPOSES OF THE
DPA .... ..... ... ....... ... ..... ... ..... ... ..... .... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ........ ....... 28
1. STATE LA W APPROVING OR REGULATING AN ACTIVITY IS NOT REQUlRED
FOR THE DPA'S ANTI-DISCRIMINATION PROVISIONS TO APPLY ...................... 31
II. STATE COURTS ARE NOT BOUND BY DECISIONS OF THE
LOWER FEDERAL COURTS ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ....... 33
III. IN CALIFORNIA COURTS, THE ADA APPLIES BECAUSE
MEDICAL MARIJUANA USE IS NOT THE "ILLEGAL USE OF
DRUGS." ........................................................................................................... 36
IV. STATE DISABILITY LA W IS INDEPENDENT AND OVERRIDES
MORE RESTRICTIVE FEDERAL LAW ...... .. .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. ..... 40
V. THE CITY CANNOT USE TAXPAYER DOLLARS TO CALL THE
FEDERAL GOVERNMENT IN TO ELIMINATE STATE COMPLIANT
MEDICAL MARIJUANA COLLECTIVES .... ... ... ..... ... ..... ... ..... ... ..... .... ...... 41
CONCLUSION ................................................................................................. 42
CERTIFICATE OF COUNSEL ..................................................................... 43
PROOF OF SERVICE BY MAlL .................................................................. 44
ii
RJN P. 132
TABLE OF AUTHORJTIES
CASES
A Helping Hand, L.L.c. v. Baltimore Cnty. (4th Cir. 2008)
515 F.3d 356 ..... ........... ................................. ... ................................ ..... .... ...... 20
Addiction Specialists, Inc. v. Township of Hamplon (3d Cir.2005)
411 F.3d 399 ................................................................................................... 15
Baba v. Board ojSupervisors (2004)
124 Ca1.App.4th 504 .... .. ... .. .................. .... ............................... .. ....................... 2
Bay Area Addiction Research and Trealment, Inc. v. Cily oj Antioch (9th Cir.
1999) 179 F.3d 725 ................................................................................... 21, 22
Bay Area Addiction Research and Trea/ment, Inc. v. City of Antioch (N.D. Ca.
March 16, 2000) No. C 98-2651 Sl, 2000 WL 33716782 .............................. 22
Birkenfleld v. City of Berkeley (1976)
17 Ca1.3d 129 .......... .. ...................... .. .. .. ....................... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..... 16
Burnett v. San Francisco Police Departmenl (1995)
36 Cal.App.4th 1177,42 Cal.Rptr.2d 879 ...................................................... 10
California Redevelopment Assn. v. Matosantos (2011)
53 Ca1.4th 231 ............. .. .. .. ...................... .. ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ...... .. ...... .... ... 41
Cipollone v. Liggett Group, inc. (1992)
505 U.S. 504 ................................................................................................... 11
City of Cleburne v. Cleburne Living Center (1985)
473 U.S. 432 ............................................................................................. 18, 19
City of EI Monte v. Commission on State Mandates (2000)
83 Cal.App.4th 266 .......................................... .. .. .. .. .. ........... .. ........... .. ........... 41
City of Riverside v. Inland Empire Patients Heallh and WelLness Center (Ca.
Supreme Court 2013) No. S198638 ................................................................ 13
Consolidated Rock Products v. City of Los Angeles (1962)
57 Ca1.2d 515 .................................................................................................. 16
iii
RJN P. 133
Crowder v. Kitagawa (9th Cir. 1996)
81 F .3d 1480 ............................................................................................ passim
Donald v Cafe Royale, Inc. (1990)
218 CaLApp.3d 168 ...................................... ... ..... ... ..... ... ..... ... ..... ... ..... .. .......... 2
Geier v. American Honda Motor Co. (2000)
529 U.S. 861 ................................................................................................... 11
Gibson v. County of Riverside (C.D.Ca. 2002)
181 F.Supp.2d 1057 ........................................................................................ 10
Gonzales v. Oregon (2006)
546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904 ........................................... 37
Horizon House Dev. Servs. Inc. v. Twp. of Upper Southampton (E.D. Pa. 1992)
804 F. Supp. 683 ............................................................................................. 20
Innovative Health Systems v. City of White Plains (1997)
117 F.3d 37 ..................................................................................................... 26
James v. City of Costa Mesa (9
th
Cir. 2012)
684 F. 3d 825 ................................................................................ 33,34,35,40
Melalclad Corp. v. Ventana Environmental Organizational Partnership (2003)
109 CaLApp.4th 1705 .............................. ..... ... ..... ..... ... ..... ... ..... ... ..... .. ........... 36
Miller v. Board of Public Works (1925)
1 9 5 Cal. 477 .................................................................................................... 16
Munson v. Del Taco, Inc. (2009)
46 Ca1.4th 661,94 Cal.Rptr.3d 685, 208 P.3d 623 ..................................... 9,10
Nebbia v. New York (1934)
291 U.S. 502, 537, 54 S.Ct. 505,78 L.Ed. 940 .................................... .... 17,18
New Directions Treatment Services v. City of Reading (3d Cir. 2006)
490 F.3d 293 ................................................................................................... 20
People v. Bradley (1969)
1 Ca1.3d 80 ...................................................................................................... 36
People v. Hochanadel (2009)
176 Ca1.App.4th 997 ....................................................................................... 16
iv
RJN P. 134
Project Life, Inc. v. Parris Glendening (2001)
139 F.Supp.2d 703 .................................................................................... 20,21
Qualified Patients Ass '/1 v. City of Anaheim (20 I 0)
187 Ca1.App.4th 734 ... .. .... .. .......... .. ........... ... ........................................... passim
Regional Economic Community Action Program, Inc. v. Cily of Middletown (2d
Cif. 2002) 294 F.3d 35 .............................................................................. 19,20
Ross v. Raginglvire Telecomms., Inc. (2008)
42 Ca1.4th 920 .......................................................................................... passim
Stubblefield Constr. Co. v. City of San Bernardino (1995)
32 Cal.App.4th 687 ......................................................................................... 17
Village of Willowbrook v. Olech (2000)
120 S.Ct. 1073 ........................................................................................... 17, 18
Wilson v. Costeo Wholesale Corporation (S.D.Ca.2006)
426 F. Supp. 2d 1115 ........................................................................................ 2
Zubarau v. City of Palmdale (2011)
192 Ca1.App.4th 289 ......................................................................................... 2
STATUTES
42 U.S.c. 12131(2) ......................................................................................... 10
42 U .S.C. 12132 ....................................................................................... passim
42 U.S.C. 12201(b) ................................................................................... 11,12
42 U.S.c. 12210 (d)(l) ..................................................................................... 3 4
Americans with Disabilities A ct of 1990, 42 U. S. C. 1210 1 , et seq. (P.L. 101-
336) .......................................................................................................... passim
Anaheim Municipal Code 4.20.300 .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ...... ... passim
Ca. Civil Code 51 (t) ........ .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ........... passim
Ca. Civil Code 54( c) ................................................................................. passim
Ca. Civil Code 54.3 ...... .... .... .... .. .. .... .... .... .... .... .... .... .... .... .... .... .... .... .... ... ...... .... 3
Ca. Civil Code 54(a) ........................................................................................... 2
Ca. Code of Civ. Proc. 526a ................................................................... vi, 1,42
v
RJN P. 135
Ca. Gov't Code 1 2926(j)(1 )(C) ...................................................... .. .. ... ..... ...... 6
Ca. Gov' t Code 12926(k)( 4) ........................................................................... 22
Ca. Gov't Code 12926(k)( 6) ................................................................. '" passim
Ca. Gov't Code 12926.1 ................................................................... .. .. .. .. ... .. 5, 8
Ca. Gov't Code 12926.1 (c) .............................................................. ...... .. ......... 8
Ca. Health & Safety Code 11362.5 .......................................................... passim
Ca. Health & Safety Code 11362.5(b)(I)(A) ...... .......................... .. ................ 13
Ca. Health & Safety Code 11362.5(B)(l )(a) .... ................... .. .. ... .... .......... 12, 15
Ca. Health & Safety Code 11362.7 ....................................... .. .. ...... 7, 14, 17, 27
Ca. Health & Safety Code 11362.7(h) .. .... .. ...... .. ........................... ... .............. 13
Ca. Health & Safety Code 1 1362.7(h)(l 1 ) ........................... .. .. .. .. .. .. .. .. ............. 8
Ca. Health & Safety Code 1 1362.7(h)(l2)(A) .......... ... ..... ... ..... .............. 7,8, 14
Ca. Health & Safety Code 11362.7(h)(6) .......................................................... 8
Ca. Health & Safety Code 11362.7(h)(9) ................ ...... .. ................ .................. R
Compassionate Use Act (Ca. Prop. 215, Appr. 1111996, Ca. H&S 11362.5)
.................................................................................................................. paSSlITl
Controlled Substances Act (21 V.S.c. 801, el seq.) .. ........ .. ... ............. 34,35,39
Disabled Persons Act, (Ca. Civil Code 54, el seq.) ........ .. .. .. .. ... .... ...... 2,3, 8, 9
Fair Employment and Housing Act, .Ca. Gov't Code 12940,12945, 12945.2
...... ............................................................................... ............ ............ 26,27,28
Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted 2003, effective
111/2004) .. ................................................................. .................... 13, 27, 32,33
Unnfh Civil Rights Act, Ca. Civil Code 5 I, et seq . ................................. 2, 9, 10
OTHER AUTHORITIES
Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1077 (1991-1992 Reg.
Sess.) as amended Jan. 6, 1992 ................ .. .. .. .. ................................................. 3
Assembly Bill No.1 077 (1991-1992 Reg. Sess.) ... .. .. .. ....................................... 3
Federalist #1 0 ..................................................................................................... 40
Federalist #14 .................................................... .. ... ............................................ 40
vi
RJN P. 136
Federalist #45 ............................................................................................... 36, 40
Federalist #46 ..................................................................................................... 40
Federalist #51 ..................................................................................................... 40
Market Discrimination and Groups. Mark Kelman, 53 Stan. L. Rev. 833, 880,
nole 24, 840 (2001) ...... ..... ... ..... .... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ..... ... ......... 4
REGULATIONS
2008 California Attorney General Guidelines for the SafelY and Non-Diversion
of Marijuana Grown for Medical Use ....... ... ... ..... ... ..... ... ..... ... ..... ... ............... 14
28 C.F.R. 35.130(g) ......................................................................................... 15
CONSTITUTIONAL PROVISIONS
Ca. Canst. art. XI, 7 ......................................................................................... 16
Tenth Amendment, U.S. Constitution ................................................................ 40
vii
RJN P. 137
ISSUES PRESENTED
1. Whether Anaheim Municipal Code 4.20.300, a ban of all
medical marijuana patient collectives, is a local rule, policy, or procedure that
impermissibly discriminates against protected individuals in violation of the
California Disabled Persons Act (DPA)?
2. Whether the California definition of a protected individual set
forth in Ca. Gov't Code 12926.1 requiring a condition "limit a major life
activity" or the federal definition requiring a condition "substantially limit a
major life activity" applies when determining DPA eligibility?
3. Whether the California definition of "unlawful" drug use set forth
in Ca. Gov't Code 12926(k)(6) or the federal definition set forth in 42 U.S.c.
1221 O( d) applies when determining DPA eligibility?
4. Whether the expenditure of taxpayer money by the City of
Anaheim to request assistance from the federal government to close all medical
marijuana collectives within its border violates Ca. Code of Civ. Proc. 526a?
viii
RJN P. 138
INTRODUCTION
Anaheim Municipal Code (AMC) 4.20.300 prohibits all medical
marijuana dispensaries. The Plaintiffs/Appellants are seriously ill and disabled
individuals who are members of Patient Med Aid, a group of patients operating
under Ca. Health & Safety Code 11362.775. Patient Med Aid applied for a
business license as a medical marijuana dispensary which was denied by the
city. In 2012, Anaheim contacted the United States Attorney for the Central
District of California and asked that the federal government assist it in closing
down all Anaheim dispensaries. Thereafter, in September, 2012, Patient Med
Aid and its landlord received cease and desist letters from Anaheim and the
federal government.
On October 1, 2012, Patient Med Aid and four of its patient members
filed suit against Anaheim, its mayor, and its city treasurer claiming, inter alia,
that AMC 4.20.300 violates provisions of the DPA prohibiting local laws that
discriminate against disabled persons and that Anaheim violated Ca. Code of
Civ. Proc. 526a by spending taxpayer money to call in the federal
government. In March, 2013, the trial court, without leave to amend, sustained
Anaheim's demurrer to the Plaintiffs' first amended complaint and judgment
was thereafter entered in favor of the city.
1
RJN P. 139
STANDARD OF REVIEW
Whether an ordinance is valid is a question of law. (Zubarau v. City of
Palmdale (2011) 192 Ca1.AppAth 289, 305; Raha v. Hoard of Supervisors
(2004) 124 Cal.App.4th 504, 512 [21 Ca1.Rptr.3d 428].) The trial COUl1
sustained the City's demurrer to the Plaintiff/Appellants' First Amended
Complaint without leave to amend based solely on legal detenninations.
Accordingly, in assessing the validity of AMC 4.20.300 (C.T. p.72), a de novo
standard of review applies.
DISCUSSION
I. A LAW THAT DISCRIMINATES AGAINST PATIENTS
VIOLATES THE STATE'S DISABLED PERSONS ACT.
The word disclimination comes from the Latin discriminare, which
means to "distinguish between." However, discrimination means more than
distinction or differentiation; it is action based on prejudice or stereotypes
resulting in unfair treatment of people with disabilities. In California, the
Disabled Persons Act!, Ca. Civil Code 54, e/ seq. (DPA), is state law that
protects the disabled and seriously ill from discrimination. (Ca. Civil Code
54(a); see Donald v Cafe Royale, Inc. (1990) 218 Ca1.App.3d 168, 176-181.)
The DPA protects seriously ill and disabled persons by incorporating
and strengthening the protections provided for in the federal Americans with
The title "California Disabled Persons Ac/" is used in various COUl1
decisions. See e.g., Wilson v. Costco Wholesale Corporation
(S.D.Ca.2006) 426 F. Supp. 2d 1115, 1123, [noting federal plaintiff had
filed ancillary jurisdiction claims under both "Unruh Civil Rights Act" and
"Disabled Persons Act"].
2
RJN P. 140
Disabilities Act of 1990, 42 U.S.c. 12101, et seq. (P.L. 101-336) [ADA].
(Ca. Civil Code 54(c)):
"It is the intent of the Legislature in enacting [the DPA] to strengthen
California law in areas where it is weaker than the Americans with
Disabilities Act of 1990 [citation] and to retain California law when it
provides more protection for individuals with disabilities than the
IADA}." (Stats. 1992, ch. 913, 1, p. 4282.) (emphasis added).
Established more than 20 years before the federal ADA (see Stats. 1968, Ch.
461), the DP A was amended after enactment of the ADA to provide additional
state protections. The amendments were but one part of a broad enactment,
originating as Assembly Bill No. 1077 (1991-1992 Reg. Sess.), that sought to
confonn many aspects of California law relating to disability discrimination (in
employment, government services, transportation, and communications, as
well as public accommodations) to the ADA. (See Assem. Com. on Judiciary,
Rep. on Assem. Bill No. 1077 [1991-1992 Reg. Sess.] as amended Jan. 6,
1992, pp. 1-4 [digest D. Part of California's law requires that certain
government entities and businesses positively accommodate the disabled.
However, at issue in this case are the palis of the DPA that prohibit
discrimination on the basis of disability.
A. The DPA prohibits discrimination.
Disclimination is different than accommodation. According to the
Merriam-Webster dictionary, the first definition of accommodation is
"something supplied for convenience or to satisfy a need." (underline added.)
That same dictionary defines discrimination as "prejudiced or prejudicial
outlook, action, or treatment."
3
RJN P. 141
Simple discrimination occurs when an entity treats an individual
differently from others despite the fact the person is equal in respect to all
"relevant" characteristics. (See Market Discrimination and Groups, Mark
Kelman, 53 Stan. L. Rev. 833, 880, note 24, 840 (200 I ).) A 'relevant'
characteristic is one that does not affect the entity's economic function
negatively, meaning that the entity experiences no additional costs from not
discriminating. (ld. at note 24, 841.) Hence, plaintiffs asserting the right to be
free from simple discrimination are asking only that entities treat them equally
in respect to others.
In contrast to an individual seeking relief from simpLe discrimination, an
individual who requests an accommodation is asking the entity to expend
money or to endure a cost to provide an affirmative change. (ld. at note 24,
835.) Accommodation requires more than simply not doing something.
Accommodation is a positive action that requires an expenditure or change.
For example, a person might say "we must accommodate that person by
widening the aisles" when using the word 'accommodate.' On the other hand,
when referring to discrimination, a person would say "we cannot discriminate
against her." Unlike accommodation, which requires a positive action,
discrimination means to not do something that adversely affects someone else.
By not taking action to ban medical marijuana collectives, a city does not
accommodate patients, but rather refrains from discriminating against them.
4
RJN P. 142
The OPA, through Ca. Civ. Code 54(c), includes a sweeping
prohibition of practices by local governments that discriminale against people
with disabilities by providing that "no qualified individual with a disability
shall ... be subjected to discrimination by any such entity.,,2 Here, the
patients are not seeking accommodation. Rather, they are challenging the
validity of laws, policies, or procedures that facially or through disparate
impact discriminate against them. This is so because a disabled person who
has been recommended medical cannabis by a doctor under state Jaw can only
receive such a recommendation when he or she suffers from a physical or
mental health condition. People who do not suffer from physical or mental
conditions are not eligible for a doctor's prescription for medical marijuana.
Only patients with medical marijuana prescriptions from licensed
doctors can participate in the medical marijuana collective program. It follows
that dispensaries can only be groups of patients or their authorized caregivers.
When a city bans or has a zoning law that effectively bans all dispensaries, it
can only be targeting patients with doctor prescriptions which means it is only
targeting people with physical or mental conditions.
B. The Plaintiffs/Appellants are qualified protected individuals under
Ca. Gov't Code 12926 and 12926.1.
In Ca. Gov't Code 12926.1(c), the Legislature provides that:
2 The OPA is independent of federal disability law. However, through Ca.
Civ. Code 54(c), it includes the protections of rights included in federal
law, specifically 42 U.S.c. 12132, part of Title II of the Americans with
Disabilities Act.
5
RJN P. 143
"Physical and mental disabilities include, but are not limited to, chronic
or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure
disorder, diabetes, clinical depression, bipolar disorder, multiple
sclerosis, and heart disease. In addition, the Legislature has
determined that the definitions of 'physical disability' and 'mental
disability' under the law of this state require a 'limitation' upon a
major life activity, but do not require, as does the Americans with
Disabilities Act of 1990, a 'substantial limitation.' This distinction is
intended to result in broader coverage under the law of this state
than under that federal act." (emphasis added).
Ca. Gov't Code 12926U)(1)(C) provides, "'[m]ajor life activities' shall be
broadly construed and shall include physical, mental, and social activities and
working." Under California law, a person is not qualified for DPA protection
for disabilities "resulting from the current unlawful use of controlled
substances or other drugs." (Ca. Gov't Code 12926(k)(6).)
The Legislature, in Health & Safety Code 1 I 362.7(h) enumerated the
physical and mental conditions for which a medical marijuana prescription is
appropriate. The "catch-all" part of that law, section 11362.7(h)(12)(a),
provides that medical cannabis may, in addition to the enumerated conditions,
be prescribed to a person suffering from a physical or mental condition that
"substantially limits a major life activity" as defined in the federal Americans
with Disabilities Act.
Since the "catch-all" in section 11362.7(h)(12)(a) is limited to people
with physical or mental conditions that "substantially limit" a major life
activity, the state's medical marijuana program law is more restrictive than the
completely separate DP A that provides protection for Californians with
conditions that simply limit a major life activity. The DPA requires only a
6
RJN P. 144
limit on a major life activity while the more restrictive state medical marijuana
program law requires a person have a condition that substantially limits a
major life activity in order to be prescribed medical marijuana under its catch-
all section. Accordingly, the group of people who can be prescribed medical
marijuana under the state's medical marijuana program law must be a subset of
people who are protected by the state's less restrictive DPA qualification
provision. It also means that actions taken by cities or counties against patient
dispensaries, which can only be a group of protected patients, must be analyzed
considering the DPA.
Appellant Marla James ("James") contracted necrotizing fasciitis. James
underwent multiple surgeries and was hospitalized for an extended period of
time. (C.T. p.15, 1l.15-19; p.16, 11.4-7; p.19, 11.24-28.) She has had a leg
amputated and suffers from chronic pain. She has diabetes. She is going blind.
Marla James suffers from a "serious medical condition" as defined in Ca.
Health & Safety Code 11 362.7(h)(6), 11362.7(h)(l2)(A) and her physician
recommended medical cannabis. (c.r. p.l5, 11.15-19; p.16, 11.4-7; p.19, 11.24-
28.) Likewise, she alleged that her conditions limit her ability to walk and see,
both abilities that are major life activities. (c.r. pp.21-22, 11.24-28,11.1-4.)
With a different but serious disability nonetheless, Appellant Martin
Modiano suffers from Acquired Immune Deficiency Syndrome (AIDS). He is
H.I.V. positive. (C.T. p.l5, 11.2-5.) Modiano regularly experiences nausea as
well as muscular pain. He must take a variety of prescribed drugs to prevent the
7
RJN P. 145
disease from killing him. (C.T. p.12I, 11.2-7; c.T. pp. 152-157.)
Consequently, Appellant Modiano suffers from serious medical conditions
included in Ca. Health & Safety Code 1 1362.7(h)(6), I 1 362.7(h)(9),
I I 362.7(h)(l I), and 11362.7(h)(l2)(A). Moreover, he meets the definition of
"physical disability" in Ca. Gov't Code 12926.1 ("Physical ... disabilities
include ... AIDS."). Under section 12926.1 of the Government Code, AIDS
automatically qualifies Modiano for protection without requiring specific
fachIal allegation regarding limits on major life activities. Accordingly, both
James and Modiano are qualified for the "broader coverage under the law of
this state than under the [ADA]" provided through the DPA. (Ca. Gov't Code
l2926.I(c)).
Butcher and Jones are likewise disabled. Butcher served in the United
States Anny and suffers from Post- Traumatic Stress Disorder (PTSD). Jones
suffers from severe pain and discomfort related to a medical condition. In their
Verified Complaint as well as in the F.A.C., both Butcher and Jones alleged
specific life activities that are limited by their conditions. (C.T. p.15, 11.6-14;
p.16, 11.4-7; p.19, 11.24-28.) As with James and Modiano, both Butcher and
Jones are qualified for protection under Ca. Gov't Code 12926.1.
C. California law incorporates, strengthens, and reinforces
protections that prohibit city and state laws that faciallv or by
operation discriminate against the disabled.
Ca. Civil Code 54(c), part of the DPA, provides that "(a] violation of
the right of an individual under the ADA, also constitutes a violation of this
8
RJN P. 146
section." (Emphasis and underline added noting the rights are incorporated, not
federal limitations.) The ADA provides that "no qualified individual with a
disability shall ... be subjected to discrimination by any" local or state
govemment. (42 V.S.c. 12132.)
1. Both the DPA and the Unruh Civil Rights Act prohibit city
laws that discriminate against the disabled.
In Munson v. Del Taco, Inc. (2009) 46 Ca1.4th 661, 94 Cal.Rptr.3d 685,
208 P.3d 623, the Califomia Supreme Court held:
"As to ADA violations, the overlap is plainly deliberate, the Legislature
having specified that ADA violations are also violations of both the
Unnth Civil Rights Act ( 51, subd. (f)) and the Disabled Persons Act (
54.1, subd. (c)). This acknowledged overlap, therefore, does not
require us to restrict, artificially and contrary to the statutory
language, the types of ADA violations remediable under the Unruh
Civil Rights Act." (Id. at 675) (emphasis added).
Thus, the state Supreme Court has held the plain language of sections
51 (f) and 54( c) include the 42 U .S.c. 12132 prohibitions against city laws that
discriminate against the disabled.
Ca. Civil Code 51 (f), part of the Unruh Civil Rights Acl [Unruh],
provides:
"A violation of the right of any individual under the federal Americans
with Disabilities Act of 1990 (P.L. 101-336) shall also constitute a
violation of this section." (Emphasis and underline added.)
In Qualified Patients Association v. City of Anaheim (20 I 0) 187
Cal.App.4th 734 [Qualified Patients], the Fourth District Ca. Court of Appeal
3 Unnlh Civil Rights Act, Ca. Civil Code 51, et seq.
9
RJN P. 147
held that because the "Unnlh Civil Righls Act expressly appl[ies] to 'business
establishments,' [there is] no room for its application to [a] city's legislative
action." (Id. at 765.) Instead of seeking relief under section 51(), the plaintiff
in Qualified Patients sought to invalidate a city ordinance under Ca. Civil
Code 51 (b)4. Disagreeing with the court in Gibson v. County of Riverside
(C.D.Ca. 2002) 181 F.Supp.2d 1057, 1093 [Gibson], the court instead
followed, e.g., Burnett v. San Francisco Police Depar/ment (1995) 36
Cal.App.4th 1177, 42 Cal.Rptr.2d 879, ("By its plain language, [Unruh] bars
discrimination based on 'sex, race, color, religion, ancestry, national origin, or
disability' by 'business establislunents. '" Id. at pp. 1191-1192).
Here, section 51 (t) of Unruh incorporates the protections of rights
included in the entire ADA, including title II. Title II of the ADA applies to
public entities - not to business establishments. (42 U.S.c. 12131(2)). In
Munson, supra, the state Supreme Court refused to "restrict, artificially and
contrary to the statutory language, the types of ADA violations remediable
under (Unnth section 51 (f)]." (Id. at 675). Given that title II applies to public
entities and not to business establishments, it follows that Unruh, through
section 51 C-f), protects against city discrimination.
4 See, e.g., Qualified Patients, 187 Cal.AppAth at 763 ["Plaintiffs contend
[the ordinance] violated civil rights protected by the Unmh Civil Rights Act.
(See Civ. Code, 51, subd. (b); see generally 8 Witkin, Summary of Ca.
Law (lOth ed. 2005) Constitutional Law, 898(2), p. 376.)" (emphasis
added).].
10
RJN P. 148
While substantial parts of the DPA provide that entities shall
accommodale disabled individuals and shall not discriminate against them,
Unnlh is more substantially focused on the elimination of discrimination. (Ca.
Civil Code 51 (t).) Accordingly, the integration of Title II protections into
both Unnlh and the DPA show the Legislature intended to provide broader
protections than the ADA and to ensure stronger protections prohibiting
discrimination than the federal law.
2. California law integrates the protections o(rights
included in the ADA and overrides that (ederallaw's
definitions ofdisabilitv and "unlawful" drug use.
The ADA creates a floor for disability access rights, expressly
authorizing the states to Impose equivalent or stricter disability access
obligations:
"Nothing in this Act shall be construed to invalidate or limit the
remedies, rights, and procedures of any Federal law or law of any State
or political subdivision of any State or jurisdiction that provides greater
or equal protection for the rights of individuals with disabi lities than are
afforded by this Act." (42 U.S.c. 12201(b).)
This "anti-preemption provision" repudiates any congressional interest In
national uniformity of disability discrimination standards. (Compare, e.g.,
Geier v. American Honda Motor Co. (2000) 529 U.S. 861; then Cipollone v.
Liggett Group, Inc. (1992) 505 U.S. 504). With this anti-preemption provision,
Congress explicitly stated that it did not intend to impose unifOlm disability
discrimination protections or to preclude the states from establishing more
inclusive and stringent protections.
11
RJN P. 149
Both sections 54(c) and 51 (f) refer specifically to violation of a right.
The sections do not incorporate the ADA's restrictions where California law is
more inclusive or protective. For example, California's definition of a
'disabled individual' omits the word "significantly" from the ADA's
"significantly limits a major life activity" phrase. The DPA uses the California
definition rather than the more restrictive meaning set forth in the ADA. This
compolis with the 42 U.S.c. 12201(b) provision that states may be more
protective and inclusive of disabled individuals.
D. California's medical marijuana laws were enacted for individuals
who are protected by the DP A.
Unlike Colorado and Washington citizens, Californians only approved
marijuana for medical purposes, not for recreational use. (Ca. Health & Safety
11362.5.) Indeed, the state's Compassionate Use Act (Ca. Prop. 215,
1111996, Ca. Health & Safety 11362.5) (CUA), provides its purpose is:
"[T]o ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who has
determined that the person"s health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for
which marijuana provides relief." (Ca. Health & Safety
11362.5(8)(1)(a) (emphasis added.))
At the most basic level, the CUA's purpose is to provide for people suffering
from illness, permanent injury, and disability. Moreover, under California law,
those disabled individuals must have prescriptions for marijuana from licensed
medical doctors. (Ca. Health & Safety 11362.5.) When they enacted the
12
RJN P. 150
CUA, the voters limited the operative provisions of their ballot initiative to
decriminalizing use, possession, and cultivation of medical marijuana. (Ross v.
Ragingwire Telecomms., Inc. (2008) 70 Cal.Rptr.3d 382, 42 Ca1.4th 920.)
While the voters did not intend to override local bans through separate and
distinct state law preemption mechanisms (City of Riverside v. Inland Empire
Patients Health and Wellness Center (Ca. Supreme Court 2013) No. S 198638),
the voters made clear they intended their law apply only to seriously ill and
disabled individuals with medical recommendations from licensed doctors.
(e.g. Ca. Health & Safety Code 11362 .5(b)(1)( A), ["To ensure that seriously
ill Californians have the right to obtain and use marijuana for medical purposes
where that medical use is deemed appropriate and has been recommended by a
physician who has determined that the person's health would benefit from the
use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for which
marijuana provides relief."].)
1. The MMPA refers directly to disability law.
At Ca. Health & Safety 11362.7(h) 5, et seq., the Legislature defined
the 'serious medical conditions' for which medical cannabis may be
recommended by a doctor:
'Serious medical condition' means all of the following medical conditions:
(1) Acquired immune deficiency syndrome (AIDS); (2) Anorexia; (3)
Arthritis; (4) Cachexia; (5) Cancer; (6) Chronic pain; (7) Glaucoma; (8)
5 P81i of the Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted
2003, effective 1/1/2004) [MMPA].
13
RJN P. 151
Migraine; (9) Persistent muscle spasms, including, but not limited to,
spasms associated with multiple sclerosis; (l0) Seizures, including, but
not limited to, seizures associated with epilepsy; (11) Severe nausea; (12)
Any other chronic or persistent medical symptom that ... :
(A) Substantially limits the ability of the person to conduct one or
more major life actiYities as defined in the Americans with
Disabilities Act of 1990 (Public Law 101-336). (Emphasis
added).
After enumerating specific ailments, all of which qualify a person for
protection under the DPA and Unrnh, the Legislature included a "catch-all"
directly referencing the ADA's more stringent "substantially limits" a major
life activity definition. (Ca. Health & Safety Code 12362.7(h)(l2)(A).) By
limiting the people who can be recommended medical marijuana to those who
suffer from conditions that substantially limit a major life activity, the
Legislature ensured that anyone with such a recommendation is necessarily
protected under the separate DPA and Unruh laws, which, in order to protect a
person from discrimination by local governments, require only a limit on major
life activities - not a substantial limitation. Given the group of people who are
eligible for medical marijuana is limited to what can only be a larger group
protected by the state's separate disability laws, medical marijuana patients
properly recommended cannabis by doctors - the only people who are covered
by the CUA and MMPA- are protected by the DPA and Unruh.
2. The collective at issue here has standing to assert a DPA
discrimination claim.
Section IV(A)(2) of the 2008 California Altorney General Guidelines
for the SafelY and Non-Diversion of Marijuana Grownfor Medical Use states a
14
RJN P. 152
"collective" IS a "business or farm jointly owned and operated by its
members." Under that same section, a "collective" may only consist of
members who are medical cannabis patients with doctor prescriptions or their
properly designated primary caregivers. Accordingly, in this case, Collective
serves a class of individuals with discrimination claims; the interests at issue
are germane to Collective's purpose; and no individual participation in a
lawsuit challenging the City's discriminatory laws is necessary. The DPA's
prohibition against discriminatory city laws flows from the Title n rights
protected under section 54( c) of the state's Civil Code. That section therefore
prohibits local governments from discriminating against not only individuals,
but entities like Collective. (28 C.F.R. 35.130(g).) Additionally, every
federal circuit that has considered the issue of whether a me/hadone clinic has
standing to bring a discrimination claim for the addicted people it selves has
held such clinics indeed have standing. (See Addie/ion Specialists. Inc. v.
Township of Hampton (3d Cir.2005) 411 F.3d 399,405-07.)
3. The MMPA decriminalizes distribution o(medical marijuana
soleII' (or people independent/v protected (rom ,liscrimination
bv the DPA and Unruh.
While the CVA is limited to decriminalizalion of marIjuana use,
possession, and cultivation (Ca. Health & Safety Code 11362.5(b)(1 )(A)-
(C)), the limits on what qualifies as a condition for those criminal law
exceptions to apply is more expansive than what is included in the MMP A. In
the CUA, California's voters asked the state government to create a system for
15
RJN P. 153
the affordable and safe distribution of medical cannabis to patients in medical
need thereof:
"Indeed, the CUA itself directed the state to create a statutory plan to
provide for the safe and affordable distribution of medical malijuana
to qualified patients. ( 11362.5, subd. (b)(l)(C).) Thus, in enacting
section 11362.775 the Legislature created what the eVA
expressly contemplated and did not unconstitutionally amend the
CUA." (People v. Hochanadel (2009) 176 Cal.AppAth 997,1014)
(emphasis added.)
The system for "safe and affordable distribution" that the CUA "directed the
state to create" was established by the Legislature in the independent collective
and cultivation provisions set forth in Ca. Health & Safety Code 11362.775 -
the criminal law exceptions for distribution, storage, and transp0I1ation of
medical cannabis. That section is limited to protecting a subset of people who
are necessarily and by definition qualified under the state's less restrictive
disability laws. (Ca. Health & Safety Code 11362.7(h).)
E. The actions taken against the patients improperly discriminate
against them as well as other disabled individuals.
The California State Constitution grants cities and counties the "police
power" to enact ordinances and regulations that protect the health, safety, and
welfare of their citizens. (See Ca. Const. art. XI, 7.) This police power is
broad in scope and elastic in nature. (Miller v. Board of Public Works (1925)
195 Cal. 477, 484; Birkenfield v. City of Berkeley (1976) 17 Ca1.3d 129; see
also, Consolidated Rock Products v. City of Los AngeLes (1962) 57 Ca1.2d 515,
522.) Generally, a local ordinance is legitimate so long as the police power
16
RJN P. 154
exercised has a rational relationship to a legitimate state purpose. (See
Stubblefield Conslr. Co. v. City of San Bernardino (1995) 32 Cal.AppAth 687,
712-13.) "If the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary Dor discriminatory, the
requirements of due process are satisfied, and judicial detennination to that
effect renders a courtfunctus officio." (Nebbia v. New York (1934) 291 U.S.
502, 537, 54 S.Ct. 505, 78 L.Ed. 940 (emphasis added); see also, e.g., Village
of Willowbrook v. O/ech (2000) 120 S.Ct. 1073 (arbitrary and discriminatory
zoning violates equal protection).)
1. The law at issue in this case onlv targets people who use
marijuana with a doctor's prescription to treat their respective
disabilities.
The offending law at issue in this case, AMC 4.20.300 targets what
can only be a group of people protected by the DPA. The law is targeted at
medical marijuana collectives. Collectives and dispensaries can only be and
therefore only provide for patients prescribed cannabis by a doctor. (Ca.
Health & Safety Code 11362.775; Guidelines at 4(A)(2).)
The patients in this case use medical marijuana because of their serious
disabilities. They would not use medical marijuana but for conditions that
limit a major life activity. AMC 4.20.300 targets dispensaries which can
only be collectives (a business or farm jointly owned and operated by its
members). Only patients and caregivers can be members of collectives thus
AMC 4.20.300 only impacts protected disabled individuals because it
17
RJN P. 155
discerns between them and individuals who are not disabled. Moreover, the
law does more than just discern between the patients and other citizens; it
treats the patients adversely by placing restrictions and conditions on them that
are not placed on comparable uses. Accordingly, the City's ban law fails when
the "neither arbitrary nor discriminatory" test is applied. (Nebia, supra,
291 U.S. at 537; Willowbrook, supra, 120 S.Ct. at 1073.)
2. The law at issue targets medical marijuana collectives and
dispensaries but does NOT target medical clinics. methadone
clinics. and pharmacies, all of which are comparable uses.
In City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432
[Cleybum], the Court was confronted with city council action that singled out
group homes for the mentally retarded, requiring that use to apply for and be
granted a special use pennit, which other residential users were not required to
obtain. The city defended both the separate procedure and its pennit denial on
the grounds they were rationally related to legitimate government purposes,
inter alia, controlling congestion, securing "serenity of the neighborhood,"
protecting safety of the residents.
Justice White, writing for the Court, set forth the appropriate mode of
analysis, asking: "May the city require the pennit for this facility when other
care and multiple-dwelling facilities are freely permitted?" The city could not
treat this facility differently, he said, ''unless [it] would threaten legitimate
interests of the city in a way that other permitted uses such as boarding
houses and hospitals would not." (473 U.S. at 448 (emphasis added).) The
18
RJN P. 156
Court then carefully examined each proffered reason, but did not merely ask jf
it were in some abstract way one of the issues a city could be concerned with,
but compared the impact of the excluded use to similar permitted uses. The
Court determined that the similar uses permitted in the zone could not be
distinguished by impact on the community. Accordingly, the Court held the
city's reasons "fail rationally to justify singling out [a group home for the
retarded] for the special use permit, yet imposing no such restrictions on the
many other uses freely permitted in the neighborhood." (Jd. at 450.)
In words which are directly applicable here, the Court held that
defening to the fears and concerns of the community in denying the permit
was not a defense, first stating "mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating" one use from another. It
went on to say " ... the city may not avoid the strictures" of the law by deferring
to the objections of some faction of the body politic. (Id. at 448.) The Court
held that denying a permit based on such vague, undifferentiated fears is again
permitting some portion of the community to validate discrimination. (Id. at
449.)
3. The Plaintiffs/Appellants alleged evidence of per se
discrimination by Anaheim.
In Regional Economic Community Action Program, Inc. v. City of
Middle/own (2d Cif. 2002) 294 F.3d 35 [RECAP], the court quoted several city
officials in support of its conclusion that the plaintiffs' disabilities were a
19
RJN P. 157
motivating factor behind a decision to deny a permit to a home for recovering
alcoholics. In that case, the Mayor said:
"And what I have tIied to convey to RECAP and through different
surrogates is that enough is enough ... Middletown is not the hub of
human services programs ... Do [this program} in some other
community that has not contributed to the extent, not even close to
what Middletown has contributed in regards to participation and
human service programs." (294 F.3d at 50.)
Additionally, a Planning Board member said, "why do we have to have all the
treatment facilities right here in Middletown?" (Id.) Another member said,
"there's an over-concentration of residential and social service facilities in the
City." Based on this evidence, the court concluded the statements, "more than
suffice to establish the plaintiffs' prima facie case." 6
In Project Life, Inc. v. Parris Glendening (2001) 139 F.Supp.2d 703, the
court found a Title n violation based on city officials' "illegal acquiescence to
[the] desire" not to have a program for recovering addicts "located in 'their
backyard. ", (1d. at 708.) Similarly, when considering a zoning discrimination
case under Title II, the court observed that, "[t]his case presents the familiar
conflict between the legal principle of non-discrimination and the political
principle of not-in-my-backyard." (New Directions Trealmenl Services v. City
of Reading (3d Cif. 2006) 490 F.3d 293, 295; A Helping Hand, L.L.C v.
Ballimore Cnty. (4th Cir. 2008) 515 F.3d 356, 367 at366.)
6 Horizon House Dev. Servs. Inc. v. Twp. of Upper SOUfhamplon (E. D. Pa.
1992) 804 F. Supp. 683 at 690; Sunrise Development, 62 F. Supp. 2d at 768-
76.
20
RJN P. 158
In this case, the patients, like the patients in Project Life, have been and
continue to be adversely impacted by government action motivated by
discriminatory animus. Likewise, that adverse impact has been, in-part, caused
by discriminatory statements made by government employees and elected
officials about medical marijuana patients, collectives, and dispensaries.
4. Medical marijuana patients are protected at least as much as
methadone patients are protected under the OP A.
Methadone is a substance used to help fonner heroin-addicts escape the
bonds of addiction and illegal drug use. It is an opiate and is also prescribed to
patients suffering from conditions that cause significant pain. A person who
begins methadone treatment and who no longer uses heroin is qualified for
Title II protection under the 0 P A. So are the patients in great pain prescribed
methadone. A cursory review of similar local laws banning methadone clinics
in Anaheim revealed no code section that references the word "methadone."
Moreover, a quick Web search for the words "methadone" in the subject area
revealed a number of addiction "medicine providers."
In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch
(9th Cir. 1999) J 79 F.3d 725, a me1hadone clinic sued the City of Antioch after
it adopted an ordinance prohibiting methadone clinics tlu-ough a spacing
requirement. (ld. at 727-28.) The court in that case concluded that the
ordinance was facially discriminatory and a per se violation of Title II because
it subjected methadone clinics, but not other medical clinics, to spacing
limitations. (ld. at 734-35.) Having reached this conclusion, the court said that
21
RJN P. 159
the only remammg mqUiry was whether the individuals treated at the
methadone clinic pose a significant risk to the health or safety of others. (ld. at
735, 737.) The case was remanded with instructions that the trial court
consider the significant risk test specifically as to the plaintiff methadone clinic
and its patients. (Jd. at 737.) The significant risk test is not a disconnected
statement by a city official that a use "causes crime." In fact, such a statement
is evidence of per se discrimination. Upon remand, the trial court found the
clinic did not pose a significant threat and enjoined the defendant city. (Bay
Area Addiction Research and Treatment, inc. v. City of Antioch (N.D. Ca.
March 16, 2000) No. C 98-2651 Sl, 2000 WL 33716782, at 11-12.) Also, in
Bay Area, the cOUli held that zoning is a program or activity for purposes of
discrimination analysis.
While the patients in this case do not use marijuana because they are
former drug addicts, they should be protected at Least as much as the
methadone patients in the Bay Area case. Moreover, although the medical
cannabis patients may not be former drug addicts, current societal animus
toward them makes them "regarded as" disabled or treated for a condition
likewise qualifying them for protection. (Ca. Gov't Code 12926(k)(4).)
5. Through "disparate impact, " a state or local law can
discriminate agaim.t db.abled individual.f;.
Facially neutral statutes that effectively discriminate against the
disabled also violate the DPA. (Crowder v. KiLagawa (9th Cif. 1996) 81 F.3d
1480.) In Crowder, the Court found that the State of Hawaii's mandatory
22
RJN P. 160
canine quarantine statute, although facially neutral, had a disparate impact on
the disabled:
"Although Hawaii's quarantine requirement applies equally to all
persons entering the state with a dog, its enforcement burdens
visually-impaired persons in a manner different and greater than it
burdens others." (Id. at 1483) (emphasis added.)
In Crowder, the blind plaintiff required a "seeing eye" dog in order to
meaningfully use public services such as "public transportation, public parks,
government buildings and facilities, and tourist attractions." (ld. 1484.) It was
not necessary for the state to provide the "seeing eye" dog for the disabled
individual. Rather, discrimination occurred when the operation of Hawaii's
law adversely impacted the disabled plaintiff. (Id.) The court concluded that
the "quarantine requirement is a policy, practice or procedure which
discriminates against visually-impaired individuals ... " (Jd. at 1485.) The
Court did not require the blind plaintiff to use an altemative treatment or aide
such as a human guide or walking stick in lieu of the "seeing eye" dog.
7
Instead, the public entity's offending law, whether facially neutral or
intentionally discriminatory, must be modified or stricken so as not to
adversely impact the disabled. Important in Crowder is the reference to
accommodation by the state through a faCially neu/ral law. Here, AMC
4.20.300 is not facially neutral and the issue is not accommodation, but rather
7 "Section 12132 of the ADA precludes (I) exclusion frorrJdenial of
benefits of public services, as well as (2) discrimination by a public entity.
(Crowder, 81 F.3d at 1483.)
23
RJN P. 161
is the elimination of a facially discriminatory law.
F. While state medical marijuana law does not 2rant patients the
right to be accommodated, they are nonetheless protected from
discrimination by the DP A.
In this case, the patients are not claiming any special right to marijuana
than they would if they were prescribed Arnbien. There is no state law
authorizing a variety of things that are used by people protected under the
DPA. There is no requirement the state "accommodate" or take positive action
here that is in any way similar to building a wheelchair ramp or widening a
door under the different and separate accommodation provisions of the DPA
that are not at issue in this case. Here, the patients are not arguing the
government must build covered marijuana smoking areas. Indeed, state and
local government entities have no obligation to provide, through
accommodation, the mitigation relied on by seriously ill or disabled citizens
(i.e. cultivation equipment, medical cannabis, or dispensaries) or, for example,
special chemotherapy rooms for people with cancer. However, the DPA
prohibits discriminatory laws that facially or by operation discriminate against
such entities that can only provide for patients.
Here, the offending law at issue facially operates to impose restrictions
on a protected class of individuals that can only be disabled. Those individuals
only use m31ijuana because they have a medical condition. They cannot do so
otherwise. In Crowder, the state of Hawaii actually discriminated against dogs
- not the disabled. Dogs are not a protected class under the discrimination
24
RJN P. 162
laws. It was the operation of the canine-quarantine law that, when applied,
discriminated against certain people who use dogs when they have a disability
that then required accommodation under the facially neutral law for the
adversely impacted patients. Here, the law is facially discriminatory and there
is no accommodation necessary. Instead, the law is invalid because it is
targeted only at people who have a condition that affects a major life activity -
patients prescribed medical marijuana by their respective doctors.
The court in Crowder detennined the state of Hawaii had addressed a
very important issue related to public safety when it enacted its canine-
quarantine law. Hypothetically, a state could proffer valid reasons for enacting
a law that prohibits just service-dogs. For instance, let's say the state was
confronting a widespread issue involving people mimicking the blind by
wearing sunglasses, walking a dog on a leash, and holding a cane or stick in
order to obtain disability benefits. The fact that someone who is not blind
pretends to be blind in an effort to obtain disability benefits does not cancel-out
discrimination law. If there was a huge problem with disability fraud, the
corrective measure cannot be a blanket ban of all service dogs. Rather, the
state can pass or enforce laws that prohibit the fraud.
Here, unlike in Crowder, the law only targets the disabled. Even if
some medical marijuana users are 110t truly sick or disabled, the government
has mechanisms for prosecuting those individuals and they cannot be deemed
the basis for banning all dispensaries. (See, e.g., Innovative Health Systems v.
25
RJN P. 163
City a/White Plains (J 997) 117 F.3d 37, 48, ("An inevitable, small percentage
of failures should not defeat the rights of the majority of participants in the
rehabilitation program who are drug-free and therefore disabled ... ")
Like the blind plaintiff in Crowder who was not required to hire a
temporary guide instead of using his own guide dog, the patients in this case
use a dispensary - they are members of a collective -- to obtain the medication
prescribed by their respective doctors. They are not required to use
Oxycontin and they do not have to cultivate on their own. Nor does the city or
state have to build dispensaries for them. Rather, government entities cannot
pass laws or engage policies that facially discriminate against what can only be
a class of disabled people.
G. The claims in this case do not involve accomodation.
Limited in scope and focused on rights to be accommodated that are not
present in the state's medical marijuana law is the Ross case, supra. Ross
involved an employee who sought redress after he was tenninated following
the results of an employment related drug screening test proved he was using
manJuana. The employee argued his employer had to accommodate his
medical marijuana use under the state's Fair Employment and Hal/sing Act,
.Ca. Gov't Code 12940,12945,12945.2 [FEHA].
The Court was unwilling to frnd an implied requirement that private
employers accommodate marijuana use in the Ross case. Indeed, a detailed
reading shows there is no mention of employment protections in either the
26
RJN P. 164
CUA or MMPA. A reading of FEHA shows it carefully details, in-part for
economic policy reasons, the burdens it places on employers. Much of the
Court's opinion in Ross focused on the lack of notice to employers of their
duty to accommodate marijuana use and the absence of employment
accommodation in the CUA.
Unlike the plaintiff In Ross, the patients here are not seeking
employment accommodation rights under FEHA. Indeed, the patients here are
not claiming any right of accommodation at all. Very different than FEHA, the
provisions of the DP A define broadly those who qualify under that section for
protection from discrimination. Specifically targeted at seriously ill and
disabled citizens, the law at issue here has nothing to do with forcing
employers to accommodate medical marijuana use. Also important is the fact
that employment rights and accommodation are mentioned nowhere in state
medical marijuana laws. However, those laws are rife with the terms
"medical," "patient," and the condition enumerations in the CUA and MMPA.
While the voters did not contemplate special employment accommodation,
they absolutely knew they were voting on a law that impacts only sick and
disabled people. So did the Legislature when it enacted the MMPA in 2003.
Nevertheless, the state's medical marijuana laws do not grant patients any
special right of accommodation -- nor does the DP A. Rather, the OPA
prohibits discriminatory laws, practices, policies, and actions by state and local
27
RJN P. 165
governments. Accordingly, the Ross holding limited to FEHA and
accommodalion is inapplicable.
H. Zoning laws are a "program or activity" for purposes of the
DPA.
To determine whether a law that impacts use and zonmg has
impermissibly discriminated against a person or group of people under the
DPA, the following test applies:
a) The person or people who make up the group must suffer from a
condition that limits a major life activity such as walking,
talking, hearing, seeing, sleeping, eating, or socializing;
b) The disabled person claiming discrimination must not be
engaged in the "current unlawful use of controlled substances or
other drugs" as set forth is Ca. Gov't Code 12926(k)(6);
c) The claimed discrimination must be the result of a city, county,
agency, or state or local zoning law, policy, procedure, or action
that facially targets something that provides services only for the
people who make-up or are a subset of the protected class;
d) The state or local zoning law, policy, procedure, or action at
issue must facially or through disparate impact treat comparable
uses differently;
e) The disabled person alleging discrimination must allege
threshold facts showing the state or local zoning law:
1) Is facially discriminatory by its plain language or uses
numeric "caps" to limit the subject use; or
2) Operates differently and in an adverse manner in respect
to comparable uses which is proven by evidence showing:
a) Statements by public officials or employees that the
use at issue leads to increased crime;
b) Statements by public officials or employees that the
use at issue is "proliferating" at an unacceptably
high rate; or
28
RJN P. 166
c) Statements by public officials or employees
evincing at "Not In My Back Yard" (N.I.M.B.Y.)
position;
f) The protected individuals do not pose a significant risk to the
surrounding community (i.e. does a medical marijuana collective
or methadone clinic or AIDS hospice pose more of a threat than a
pharmacy or medical clinic);
To illustrate the application of this test, let's say the City of Acme,
California, which has an ordinance allowing and regulating medical marijuana
dispensaries, enacts the following emergency legislation after several citizens
are seriously injured following intense media reports claiming pharmaceutical
companies and doctors are profiteering through intravenous chemotherapy
drugs:
"Ordinance 2013-005, the Acme Prevent Deafh and Serious Injury
Caused by Protests Near and Around Chemotherapy Centers
Ordinance: FINDINGS: 1) Recent protests near chemotherapy centers
have led to the serious injury of Acme citizens; 2) Attempts to prohibit
the protests were ruled unconstitutional recently by a state cOUli; and 3)
Unless action is taken to close-down and ban all chemotherapy centers,
the City's citizens are in imminent danger of being seriously injured or
killed. THEREFORE, pursuant to its powers under ali. XI, 7 of the
California constitution to provide for the health, safety, and welfare of
its citizens, the City of Acme enacts as follows: A) "Chemotherapy
Center" shall mean and refer to any medical clinic that exclusively or
non-exclusively provides intravenous chemotherapy services or that
exclusively sells or otherwise provides intravenous chemotherapy dmgs
to individuals; B) It shall be a misdemeanor punishable by up to six (6)
months in the city jail, $1,000.00 fine or both for any person to
establish, own, operate, work-for, or in any way assist in the
establishment or operation of any Chemotherapy Center within the city
limits of Acme; C) All Chemotherapy Centers presently operating
must 1) Close within 5-days of the passage of this law; or 2)
immediately stop providing all intravenous chemotherapy services; D)
29
RJN P. 167
this ordinance shall not prohibit a person from independently obtaining
intravenous chemotherapy drugs outside of Acme and thereafter
personally administeling those drugs in their home."
During the city council meeting held when the Acme ordinance was
passed, one of the city council members conunented, "We are, of course, all
concerned about people with cancer or AIDS or other illnesses. However, we
can't have these facilities in Acme because they have led to multiple violent
protests where people have gotten hurt. The people who need these drugs can
go to a neighboring city." Another council member noted that the
chemotherapy centers are causing crime because the price of chemotherapy
drugs had skyrocketed while inventories were in short-supply. She referred
specifically to numerous break-ins at existing chemotherapy centers where
drugs had been stolen.
Following enactment of the ordinance, an existing chemotherapy center
filed a lawsuit challenging the Acme ordinance solely on the basis that it
conflicts with state law. In a decision limited to that narrow issue, the state
Supreme Court refused to strike-down the Acme law holding there is no state
law prohibiting California cities from banning chemotherapy centers.
Thereafter, three (3) female residents of Acme each of whom had recently been
diagnosed with cancer and AIDS, were prescribed intravenous chemotherapy
drugs. After the females learned that all chemotherapy centers were banned in
Acme, they filed a lawsuit claiming the Acme law violated the DP A by
discriminating against them.
30
RJN P. 168
Applying the test set forth above, the three (3) female plaintiffs meet the
first requirement that they have conditions that limit a major life activity.
Next, none of the three are engaged in the current illegal use of drugs or
controlled substances that is prohibited through Ca. Gov't Code 1 2926(k)(6).
Next, intravenous chemotherapy drugs, under state and federal law, must be
prescribed by a licensed doctor to treat a medical condition. Accordingly, the
chemotherapy centers exist only for people who meet the California definition
of a "disabled person." Finally, the Acme law specifically targets and bans
chemotherapy centers, entities that only exist for patients who meet the
definition of "disabled person," and is therefore facially discriminatory. When
the Acme ordinance is analyzed in light of Acme ordinances governing
comparable uses - for instance, the Acme law that allows and regulates
medical marijuana dispensaries - it operates adversely and therefore
discriminates against the patients. Also, the N.I.M.B.Y. comments made by
one councilperson as well as the "these things cause crime" comments made by
another are evidence of per se discrimination that violates the DPA. It follows
that the Acme law contravenes the DPA's prohibition against discriminatory
city laws, policies, procedures, and actions.
I. State law approving or regulating an activity is not required for
the DPA's anti-discrimination provisions to apply.
Important in analyzing the hypothetical is the recognition that there
need be no state law that conveys any special right to use a "chemotherapy
center" for the DPA to apply. The right to be free from discrimination by
31
RJN P. 169
governmental entities flows independently from the DPA, not from any
ancillary state law. Before the CUA was enacted in 1996, there was no
protection for medical marijuana patients in respect to mitigation that involved
the illegal (any) use of cannabis. Indeed, under Ca. Gov't Code 12926(k)(6),
people engaged in the unlawful use of controlled substances or other drugs -
one of which was marijuana before 1996 - were disqualified from DPA
protection for conditions related to such use. In 2004, when the MMP A
became effective, patients could become members of and begin using medical
marijuana dispensaries. Again, their use of dispensaries prior to 2004 would
have been unlawful under state drug laws and therefore would operate to
trigger DPA disqualification. (Ca. Gov't Code 12926(k)(6).) However, after
1996, the use of marijuana for medical purposes pursuant to a doctor
recommendation was no longer unlawful under state law and thus a person
meeting the state definition of a disabled individual (anyone with a valid doctor
prescription, which requires a prerequisite serious medical condition) now
remains qualified. Likewise, purchase of medical marijuana by a qualified
patient member of a collective operating as a dispensary in conformance with
state law is no longer "unlawful." Accordingly, the provisions of Ca. Gov't
Code 12926(k)(6) that would have, prior to 2004, disqualified patients who
purchased marijuana absent the state law decriminalization provisions of the
MMPA do not operate to disqualify those same patients today.
32
RJN P. 170
Remembering that the state Supreme Court in Ross made clear
California's medical marijuana laws only "decriminalize" use, possession,
distribution, transportation, storage, and the sale of marijuana for qualified
patients (and properly operating patient collectives), it is likewise important to
recognize the DPA's "illegal drug use" prohibition uses the word "unlawful" to
characterize the types of drug-related uses or actions that will disqualify a
person for purposes of DPA protection from discrimination. It is axiomatic
that when something is "decriminalized," it is no longer unlawful. Indeed, it is
the criminal aspect of drug use - the unlawfulness of that use - that triggers
disqualification under the DPA. It follows that the decriminalization actions
taken by the voters and the Legislature in both the CUA and MMP A
respectively, were sufficient to remove the "unlawful" trigger included in the
DPA. More importantly, the non-medical, unlawful use of marijuana, even by
a qualified patient, remains effective even today and will operate to disqualify
those who do not comply with state law.
II. STATE COURTS ARE NOT BOUND BY DECISIONS OF
THE LOWER FEDERAL COURTS.
In its moving papers, the City cites James v. City of Costa Mesa (9!h Cif.
2012) 684 F. 3d 825 [James] to support its demurrer to the Plaintiffs' cause of
action for violation of the federal ADA. In that case, four (4) disabled
Californians who each used medical marijuana pursuant to state law sued the
cities of Costa Mesa and Lake Forest under Title II of the ADA. The Plaintiffs
in that case included a wheelchair confined veteran who died during the
33
RJN P. 171
litigation, an approximately fifty (50) year old female amputee likewise
restricted to a wheelchair (she is also a plaintiff in this case), a man who was
paralyzed and suffered brain injuries when he fel1 from a ladder, and an older
man who suffers from painful and debilitating brittle bone disease. Each
Plaintiff was recommended cannabis by a licensed physician to treat symptoms
caused by their disabilities.
Title II of the ADA prohibits city or state laws that facially or by
operation discriminate against qualified disabled individuals. (42 U.S.c.
12132.) Contrary to the City's attempted broad use of the James case beyond
its limited holding, the appellate court decided only whether the 42 U.S.c.
l2210(d)(J) exception to the illegal drug use prohibition in the ADA allowed
the Plaintiffs to remain qualified for protection. (James, supra.) In a split-
decision, the Ninth Circuit affirmed the trial court's finding that there is an
implied federal Controlled Substances Act (21 U .S.c. 80 I, et seq.) [CSA]
authorization requirement in 12210( d)(l) of the ADA. (Jd.) The court held
the patients did not remain qualified because they were engaged in the current
illegal use of drugs. Use of marijuana for medical purposes with a doctor
prescription is not illegal under California law and in California courts.
In James, the majority struggled to reach its conclusion. In a labored
effott, the majority applied various canons of construction it had to painfully
stretch to reach its admittedly "near-draw" conclusion that Congress intended
an implied federal CSA requirement in the ADA. On the other hand, without
34
RJN P. 172
any difficulty, the well-reasoned dissenting opinion showed Congress in-fact
did not intend to leave patients using marijuana for medical purposes without
protection:
"The statutory interpretation issue at the core of tbis case is an
unusually tougb one, as the majority opinion recognizes. Looking at
the language of 1221 O( d)( I) alone, I would come ou t where the
majority does - concluding that the statute is ambiguous. But unlike the
majority, I would not declare a near-draw. Instead, looking at the
words alone, I would conclude that the plaintiffs have much the better
reading, but not by enough to be comfortable that their interpretation is
surely correct. Turning then to the legislative history, I would again
declare the plaintiffs the winner, this time sufficiently, when combined
with the language considerations, to adopt their interpretation, absent
some very good reason otherwise. And I am decidedly not convinced
that the majority's facile "trump" via the Controlled Substances Act
('CSA ') works, because, among other reasons, the supposed tension
relied upon does not exist." (James, 684 F.3d at 836-837, Berzon, 1.,
dissenting) (emphasis added.)
As Justice Berzon notes in her dissent, the decision in James was a "near-draw."
(Id.) Even the two judge majority recognized the unusually difficult nature of
and "near-draw" in the case. (Jd.) Moreover, the majority's erroneous "facile
'trump'" that Justice Berzon refers to in her dissent is based on a manufactured
incongruence between the ADA and federal CSA - a law California courts have
said does not preempt the state's medical cannabis laws. Indeed, that same
federal law - the CSA - is a law that must take the proverbial "back seat" to
state law because state law is not preempted by it. (Qualified Patients, 187
Ca1.AppA
rJ1
at 754-55.) Correctly, the appellate court in the Qualified Patients
case deemed the City of Anaheim a "creature of the state." (Id. at 754.) The
35
RJN P. 173
City should not be calling in the federal government to assert federal law over
state law on the same subject.
III. IN CALIFORNIA COURTS, THE ADA APPLIES
BECAUSE MEDICAL MARIJUANA USE IS NOT THE
"ILLEGAL USE OF DRUGS."
For purposes of the ADA, this California state court is not bound by
decisions of the lower federal courts including U.S. District Courts or the
federal circuit courts of appeal. (See Metalclad Corp. v. Ventana Environmental
Organizational Partnership (2003) 109 Cal.App.4th 1705, 1715 [1 Cal.Rptr.3d
328] [Meta/clad).) At issue in Meta/clad was a question of first impression in
the state courts regarding the Federal Arbitration Act (9 U.S.c. 1, et seq.)
[FAA]:
"Even if [the Ninth Circuit or other federal courts had decided the issue],
because the United States Supreme Court has not accepted or rejected the
doctrine, we would remain free to reach our own conclusion,
consistent with our obligation to interpret and apply federal law. 'On a
federal question, the decisions of the United States Supreme Court
are binding on state courts. However, the decisions of the lower
federal courts, while persuasive, are not binding on us.' (People v.
Bradley (1969) 1 Ca1.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129)." (ld. at
1715) (emphasis added.)
Medical marijuana is not the unlawful use of drugs in California. While such
use is apparently illegal under federal1aw, California is a sovereign state. In
Federalist #45, James Madison wrote:
The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in the
State governments are numerous and indefinite. The former will be
exercised plincipally on external objects, as war, peace, negotiation, and
36
RJN P. 174
foreign commerce; with which last the power of taxation will, for the
most part, be connected. The powers reserved to the several States will
extend to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people, and the
intemal order, improvement, and prosperity of the State. (emphasis
added.)
Through its powers over all issues which concern the lives, liberties, and
properties of the People, California has always had the authority to legislate in
the area of health care and medicine. It has always had that power despite the
failure of the Article 2 and Article 3 branches of the federal sovereign to
prevent usurpation by Congress - the most powerful part of the "remote central
poweL"
In Gonzales v. Oregon (2006) 546 U.S. 243, 163 L. Ed. 2d 748, 126 S.
C1. 904, the Supreme COU1i concluded that Oregon's assisted suicide law was
not preempted by the federal Controlled Substances Act (CSA) because health
and weI fa re concerns h ist01ica 11 y have been regu la ted by the states (ld. at 271)
and Congress's purpose in enacting the CSA was to combat recreational drug
abuse. (ld. at 272,274.) "In connection to the CSA, however, we find only one
area in which Congress set general, uniform standards of medical practice.
[That area is the uniform national standard for the medical treatment of narcotic
addiction under 42 U.S.c. 290bb-2a.] This provision strengthens the
understanding of the CSA as a statute combating recreational drug abuse ... "
(ld. at 271.)
37
RJN P. 175
In addressing the majority opmlOn, Justice Scalia noted the Court's
holding in the case meant '''legitimate medical purpose' refers to all uses of
drugs unrelated to 'addiction and recreational abuse.' Ante, at 274." (Oregon,
546 U.S. at 287, Scalia, 1. dissenting.) Justice Thomas referred to the Court's
"newfound understanding of the CSA as a statute of limited reach" and wrote
that its change limiting the CSA to recreational drug activities "rests upon
constitutional principles that the majority of the Court [had earlier] rejected in
Raich ... " (Oregon, 546 U.S. at 300, Thomas, 1. dissenting). It follows that, in
the Oregon case, the Supreme Court has clarified: (1) the purpose of the CSA is
to regulate/prohibit recreational drug abuse; and (2) that Congress did not intend
to preempt states' traditional rights to regulate medicine. (ld. at 274 and 300.)
Considering the names of the state laws at issue here include the words
Compassionate and Medical Marijuana in conjunction with the requirement
that a patient be recommended cannabis by a licensed physician, there is
nothing in California's medical cannabis laws that allows, permits, or
decriminalizes anything having to do with the recreational use of marijuana.
Indeed, the sovereign state's laws are inexorably tied to the practice of medicine
because only doctors can provide for the use of marijuana. The practice of
medicine refers to "[t]he science and art dealing with the prevention, cure, or
alleviation of disease." It is illogical that a doctor would advise that medical
cannabis be used to treat the excruciating pain, discomfort, or other symptoms
of a patient knowing the patient cannot get the recornrnended medication.
38
RJN P. 176
Moreover, it makes no sense to prohibit medical use of cannabis through a
federal law enacted to combat the recreational abuse of drugs. More
importantly, the "illegal" use of drugs provision of the ADA is targeted at just
that - the illegal use of drugs. The federal CSA was not targeted at medical
drug use under state law and it is not unlawful under California for a patient
prescribed marijuana to use that medication. Accordingly, it makes sense that,
despite the decision of the lower federal court, the ADA should apply and
protect patients under California law.
The holding in Qualified Patients that subdivisions of the state must give
meaning and effect to state law considered in combination with and in light of
the holding in Metalclad that California courts are not bound by the decisions of
the lower federal coulis make clear seriously disabled patients who use medical
cannabis under a doctor's recommendation, including the Plaintiffs, remain
protected under the ADA in state court cases. Given the "near draw" decision
and the well-reasoned dissent in James, the proper interpretation, especially in
California, is one that includes the disabled Plaintiffs as Congress intended.
Additionally, the various state decisions like Qualified Patients that hold
California's medical cannabis laws are not preempted by the CSA demonstrate
those same state appellate courts would likely find, as Justice Berzon did in
James, there is no conflict between the ADA and CSA given the vastly different
purposes Congress had when it enacted those laws.
39
RJN P. 177
Of similar import, the usurpation of state power by the federal sovereign
has never granted the irresponsible co-equal Article 2 and Article 3 branches of
that supposedly limited sovereign the ability to wholly overtake areas originally
designated as belonging to the sovereign states. Indeed, the Framers of the
Constitution made clear the states are a critical and inexorable component of
our nation's system of federalism. It follows that the states - when dealing with
an issue traditionally belonging to them - are as impOitant in stopping improper
federal usurpation of their powers as the co-equal branches of the federal
sovereign. When those co-equal branches have failed to prevent the Article 1
branch from engaging in improper takings of state power, the states have a duty
to stand-up for the lights granted them at the time this country was formed.
(See Federalist #10, Federalist #14, Federalist #45, Federalist #46, and
Federalist #51; see also Tenth Amendment, U.S. Constitution.)
IV. ST ATE DISABILITY LAW IS INDEPENDENT AND
OVERRIDES MORE RESTRICTIVE FEDERAL LAW.
In respect to the independent state law DP A, the decision in James is not
applicable. Indeed, California's disability law includes its own "illegal drug
use" prohibition that is independent of and overrides section 12210(d) of the
ADA. Government Code section 12926(k)(6) includes California's "unlawful"
drug use prohibition that operates to exclude disability law eligibility. Those
sections refer to the "unlawful" use of a controlled substance or drug under state
law. Use of marij uana for medical reasons with a recommendation by a
licensed doctor is not unlawful in California. Thus, the decision in James in
40
RJN P. 178
inapplicable in tenns of the DPA. Given the Legislature made clear the DPA is
separate and independent from the ADA while incorporating the protections of
ADA rights, the DPA is more protective and thus applies to protect the
Plaintiffs/Appellants.
V. THE CITY CANNOT USE T AXPA YER DOLLARS TO
CALL THE FEDERAL GOVERNMENT IN TO
ELIMINATE STATE COMPLIANT MEDICAL
MARIJUANA COLLECTIVES.
Anaheim proffered that it can call-in the Federal government to
eliminate the patient collectives. At issue in the trial court was the City's
demurrer. The Verified Complaint as well as the First Amended Complaint
alleged the patients and the entity they fonned to represent themselves
collectively - Patient Med-Aid - operated in full-confonnance with state law.
Apparently, the trial court did not treat that allegation as true for purposes of
the two demuners. Anaheim is a non-sovereign subdivision of the State of
California. (California Redevelopment Assn. v. Matosanlos (2011) 53 Ca1.4th
231, 255; City of El Monle v. Commission on SIale Mandates (2000) 83
Ca1.AppAth 266, 279 [99 Cal.Rptr.2d 333].) It is a "creature of" state
government and must give meaning and effect to state law. (Qualified Patient,
supra.) The expenditure of its taxpayer dollars is illegal and improper because
Anaheim must give meaning and effect to state law, not to federal law that is
different on the same subject. Essentially, Anaheim has gone around the
holding in Qualified Patients by spending state/city tax dollars to call-in the
federal government to enforce federal law. Indeed, the City's letters sent to
41
RJN P. 179
collectives and landlords specifically refers to federal law in a manner
inapposite to the holding in Qualified Patients. Section 526a of the Code of
Civil Procedure prohibits this type of expenditure.
CONCLUSION
The Verified Complaint and First Amended Complaint filed by the
Plaintiffsl Appellants included sufficient factual allegations to withstand the
Defendants' IRespondents' demurrer to the causes of action seeking rei ief under
the DPA, Unruh, the ADA, and Code of Civ. Proc. 526a. The trial court's
decision sustaining the demurrer was based on issues of law. In respect to the
DPA, the trial court ened when it assumed accommodation and completely
overlooked the issue of discrimination. Likewise, the trial court ened when it
detennined the ADA is inapplicable and that the taxpayer expenditures of
Anaheim to call in the federal government and which violated the DPA were
not improper. Accordingly, the trial court's orders sustaining the demurrer to
Plaintiffs' Verified Complaint and First Amended Complaint should be
REVERSED.
Respectfully submitted on July 15, 2013:
Matthew Pappas, SBN: 171860
42
RJN P. 180
CERTIFICATE OF COUNSEL
Counsel for Appellants hereby certifies that, pursuant to Rule 14(c)(1) of
the Califomia Rules of Court, the enclosed OPENING BRIEF ON THE
MERITS was produced using I3-point Times New Roman proportional font
and contains approximately 10,817 words excluding the table of contents, table
of authorities, cover page, and this certificate. In arriving at this estimate,
counsel selected the parts of the document excluding the aforementioned tables
and cover page and retrieved the count of words provided by the Microsoft
Word 20 I 0 word processing software used to produce the document.
I hereby certify the aforementioned certification is true and conect under
penalty of perjury under the laws of the state of California.
DATED: July 15,2013:
Matthew Pappas
43
RJN P. 181
PROOF OF SERVICE BY MAIL
I, Victoria Pappas, am a citizen of the United States and resident of Mission
Viejo, California. My address is 22762 Aspan St., #202-107, California. On July 17,
2013, I served the Opening Brief of Plaintiffs/Appellants and Cert. of Interested
Parties on the interested parties in this case shown below by depositing separate
envelopes addressed to each of them in which the aforementioned documents were
enclosed and postage paid and affixed into the U.S. Mail at Lake Forest, California:
Moses Johnson, IV
Ass!. City Anomey
Anaheim City Allomey
200 S. Anaheim Blvd., Suite 356
Anaheim, CA 92805
Clerk of the Orange Counry Superior Coun
For: Hall. David Chaffee
700 Civic Center Drive West
Santa Ana, CA 92701
Ca. Supreme Court Via -Service (CRC 8.212(c)(2))
)50 McAllister Street
San Francisco, CA 94102-4797
Office ofille California Alloruey General
1300 "I" Street
P.O. Box 944255
SaCTamento, CA 94244-2550
I declare under penalty of perjury under the laws of the United States and the
laws of the state of California that the aforementioned is true and correct
EXECUTED this 17th day of July, 2013 at Lake Forest, CA, United States of
America.
VIctoria Pappas
44
RJN P. 182
EXHIBIT 19
RJN P. 183
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in Orange is a City Ill' approx i IIlillC Iy 7 :i.()OO in wughly IIdl square miks, Wt:
write to illftHlll ynu or the prcsent :;illl:llillil "illl lIlarijllall:1 saks within ( .. Ike FOfest nllu til .. '
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prescnll), of 12 operating slorL'- rront lllariju:lII:\ d withi 1\ the Cil y. 0 f these,
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from a MlIIW.:ssori scholll scrving II ,llId ki IIdc rgJrtl'!l SIUUCIIIS.
The City of I.ake Fun ..:sl h,IS in :tlltl cxrx:nsivc litigation 10 ahale
these \,hidl ill :luuillOliIJ hI tlll"l1 flagrant violation (If tt.'derat narcolics laws,
routinely ere;I": sectlillbry 1<1\\' .... nti)f\:lllIClll ;11I.J bJld IISl' iSSllCS for Ihe City. ThL" ('ity is
conccrned that Juc tn the I:trge ma:;:; (II' thesc busincsses and ' whal Wl' bel ieve' arc thc huge
receipts Ihcy ,kri\'e Irt'llll thcse illegal ;n.:li\ilil's, Ihey \\ill 1,'lI1llillliC (0 L'ulilluil vast resourccs tt)
nul' .( hl' !:intl}"I'..!s of thcsc have indicalcd Iha' thesc
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rhe lof LlkL' "U1\::;(" /tlllillt! r,,:!!"l:!llC\ll( .I" Ilol I'l' rmit lII;lrijll;ln:1 ill
Ihc l'ily ' s rn,hihih thaI \iol;tles eilhn stall' (lr Ictkrnl 1;1\\ .
,\.:.:orJingly, Ihe h,,!' \ltlcIllPk'<.l fC,'f 11C .. 1\\(1 )'''::Ir:-: Ill'\\' to rill tht.' Ihc . ..;e
shu'drollt dispcIIs:lrics by hrillg.ing 1l1lis;lIln'-:Ih:lk'llIl'lll 1;1\\o;lIils in cnurt City'"
ItlL,11 1:1I1(\\lSI: (llllsisll'llI \\ilh !;tw. :-'lay \H'rc :illccl'ssfu( in
1\111:> .. 1 tIl' Ih\.' ddi:ntianls ;lrrl!alcd,
h"wc\l' r. ,Illd Iht: (';llif,lrIli,1 (',Iurl lit' thl' l'1l/i,rct:llll'JII of
fill' ;Irl' .... al, h:l\ l' 1(1 h .... dL"L' J .. kd ,Ill IIK'i r 11K" il s . ,IO..! I h.: d iSrCII':Jril'S h;l\l'
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RJN P. 184
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MOSI r\:(clllly, Ihl! Cllifornia cnacll.'ll dkclin' January l. 1 Ihat
prohibils marijuana \\ i Ih ill 6U() Ji.,\.t of Sdh '0 1:;, Ihl' (' i J i S(\l\'creu thai 11 illl!
ur :lrc \\ ilbill diSI;1l1CL' OJ';1 schnol. we against :mJ llt'ttairll!d - <.l
tl!mpnrary n:slr;lining order fWIll st.lI\.' coun III c!lISL' Ihus\.' dispensaries. I hmc\ 'cr. bdorc 11lL'
ordl'r hi :-;hl"\ .:-aU:;l" rc pn:liminilry injullction c\lldd e\\.1\ hI.! hl!ard Oil thai mullet', thl.! C'alilornin
Court llf ,\pre .. l once stepped in 10 hl{lcl.. enlim:cllll!lll or the injullctilln, In short. Ihc City
has OI.'l'n at \.'wry 111m in ils dli'rl.'; hI deal \\'illl the.: rmhlclll or C0111 l1ll'rci a I
marijuan:\
\Vc arL' aWarl! "Ilhe U,S. l)cp"rlllh::111 ll( Iwsilillll. outlined in Ihl' 2009 OgJL'n
MemoranJullI rriori vis-a-vis II individuals \\'ho usc
U1::lrijuaIl3 part of a 1I1l:dicallr-rCClI1111ll\,l\lkc..l rcgill\c:1l in ClIlllpli:111CL' \\'ilh IJw.
as well as its pnl icy U(' Clllll i 1l\li III enfllrc..: I hl' ClIlllrl,llcd SUb:-:l,lI1Cl'S Acl \'igNl,usl y again51
inJiviJllab :md Qrgani"l.1liolls Ihill participalc ill unl.mful llIarlllfaclmillg :111\1 uislrihlllillll of
mari.juana. c .... \.1\ ir slIr.:h 'll:li\'ilies ;Irl! pcrlllilll'd 1I1ldl'r Sial\.' b\\' . We arc also aware Ihal your
il) Ihe Districi. Ms. (l'ilcr;lt.::d in a h:bn.tary I, 1 to
OaklanJ City "lhHlley (a ..:opy or which is cIH: ll,seu here for your rdcrcncc) thc Juslice:
pC1silion \hal il will Clltl)f(:C Ill..: CSA cspcl'i;1Ily \(1 prohibit the commen:ial
m;lIlUfaClllfC :mJ disl ri n\1lioll Ilrmarijuan:1.
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RJN P. 185
EXHIBIT 20
RJN P. 186
Amid Biro/Ie Jr.
United SIDtu Allorney
(213) 891-24J4 (telephone)
(2IJ) 8940141 (focslmlle)
October 7, 20 II
Scon C. Smith, Esq.
City Attorney
City of Lake Forest
Best, Besl, & Krieger, LLP
5 Park Plaza, Suite 1500
Irvine, California 92614
Dear Mr. Smith:
U. S. Depllrtment of Justice
United StaJes AIlOrlley
CeltJral DisJrict 0/ Cali/omia
Unlled SIDIU
312 North Spring Slreet
LosAngdCJ. California 90011
O' II.
I write to respond to your earlier letter seeking the assistance of my office with the
City of Lake Forest's efforts to combal commercial marijuana stores operating in violation of
local ordinances and regulations, and other laws. We have received similar requests from other
municipalities throughout the Central District of California (the District). As a result, in
conjunction with federalnnd local law enforcement agencies, we have carefully examined the
siluation in Lake Forest, and the problem of commercial morijuana operations in the District.
The Department of Justice has stated on many occasions thllt it is committed to the
enforcement of the Controlled Substances Act (CSA) in all States, including those like California
that have enacted some fonn of legislation relating to the medical use of marijuana. Congress
has determined that marijuana is a dangerolls drug Ilnd that the illegul distribution and sale of
marijuana is a serious crime that provides a significant source of revenue \0 large scale criminal
enterprises, gangs, and drug cartels. While it would not be an efficient or reasonable use of
federal resources to focus enforcement efforts on individunls with cancer or other serious
illnesses who use drugs as part of a recommended lreatment regime consistent with applicable
state law or advice [Tom their healthcare professionals, the prosecution of significant traffickers
of illegal drugs, including marijua.na, remains a core priority of the Department.
Persons who are in the business of cultivating, selling, or distributin mnri"u8lUl and
those who knowingly facilitate such activHics, arc in violation of the eSA re ardless of state law.
Such persons are subject to federal crim.inal and clivil enfo.rcement actions. These include, but
are not limited to, actions to enforce the crimi nal provisions o[ the eSA such as Title 21, United
Stales Code, Section 84 I, which makes it illegal to manufacture, distribute, or possess with intent
to distribute any controlled substance including marijuana; Tille 21, United States Code, Section
856, which makes it illegal to knowingly open, lease, rent, maintain. or use property for the
RJN P. 187
manufacturing, storing, or distribution of controlled substances including marijuana; and Title
21, United States Code, Section 846, which makes it illcgalto conspire to commit any of the
crimes set forth in the CSA. Federal money laundering and related statutes also prohibit a variety
of different types of financial activity involving the movement of drug proceeds, and the
goverrunent may also pursue civil injunctions or the forfeiture of drug proceeds, property
traceable to such proceeds, and property used to fllcilitate drug violations.
In recent years, commercial marijuana operations have proliferated in this District.
including in cities like yours that have vigorously opposed them. This expnnsion has been driven
primarily by the profits generated by marijuana snies. The intent behind California's medical
marijuana laws may have been a well-meaning desire to help the seriously ill. However, based
on federal investigations, discussions with district attorneys, municipalities, and numerous law
enforcement agencies, [t is clear that, in reality, and in direct vioilltion of these state laws.
virtually all the marijuana stores operating in the this District are profit-making enterprises. In
addition to the local problems posed by these stores thnt you have oUllined in your letter,
marijuana is being illegally grown on public and private lands to support the commercia!
distribution at stores, causing harm to the environment and surrounding communities. Moreover,
marijuana and marijuana profits associated with these operations travel frequently throughout the
state and are being moved between CaJifomia and other sllltes Ihroughout the country.
In response to this problem, my office is working with federal, slate, and local law
enforcement agencies to make renewed efforts to combat the commercial marijuana industry in
your city and throughout the District. In addition to undertaking criminal prosecutions and other
enforcement actions, this office is today sending out leiters 10 the property owners and landlords
of the marijuana stores in your city and nearby areas. These leHers provide formal notice that the
properties in question are being used to possess, distribute, or cultivale marijuanu in violation of
federal law, and that such activity may subject the property owners to criminal prosecution, fines,
and forfeiture of their properties as well as any money they receive from the distribution of
marijuana by the stores. At three proper1ies -located in Lake Forest, Wildomar, and Montclair -
where the government believes that the property owners were well aware of the marijuana
operations in their properties, my offICe is filing civil complaints in federal court seeking
forfeiture of the properties without a preliminary warning letter. We have also acted with the
help of I.R.S. to seize a bank account containing rent money from marijuana stores. These
actions are of course onJy the beginning of what will be on-going efforts to help remove (hese
operations.
In choosing to take theses actions in your city and ncarby conununities, we have noted the
substantial efforts your city has made on its own to combat commercial operations through both
civil and criminal enforcement. The commercial marijuana industry is illegal and subject to
federal enforcement wherever it is found. However, gillen the number of stores and other
operations in the District, in considering the efficient expenditure of federal resources, this office
wi'll continue to give extra consideration to communities like yours that have made it clear that
commercial marijuana operations are unwanted and Ihal have made, and continue to make, all
2
RJN P. 188

reasonable etIorts to identify and remove commercial marijuana operations. This office Mot
efficiently address this problem alone. We look forward to working together with your city and
our federal, state, and local law enforcement partners to uphold the law Ilnd help your
community.
ANDRE BIROITE JR.
United Slates Attorney
3
RJN P. 189
EXHIBIT 21
RJN P. 190
UNITED STATES DEPARTMENTrf"
THE UNITED STATe., 01+1(:1::
SEARCH THE SITE
CENTRAL lJISTIUCT c:7 CALI FORNI A Search
HOME ABOUT NEWS MEET THE U.S. ATTORNEY DIVISIONS PROGRAMS CONTACT US
f> Pres s Re(ease
NEWS A
,
,
Enforcement Actions Directed At Commercial Marijuana Operations
Across Southland Include Criminal Drug Trafficking Case, Property
Forfeiture Lawsuits And Warning Letters To Landlords
FOR IMMEDIATE RElASE Octo ber 7, 2011
LOS ANGELES - As part of a coordinated effort by California's four United States Attorneys, federal
prosecutors in Los Angeles have taken a series of actions against illegal commercial marijuana operations,
including a building in South Orange County that houses eight marijuana stores and a trafficking ring that
sold marijuana at its San Fernando Valley storefront, and sent marijuana to customers as far away as New
York state.
The coordinated enforcement actions that were announced today address a marijuana industry in
California that has swelled to include numerous drug-trafficking enterprises that operate commercial grow
operations, intricate distribution systems and hundreds of marijuana stores across the state - even though
the federal Controlled Substances Act prohibits the sale and distribution of marijuana.
"It is important to note that for-profit, commercial marijuana operations are illegal not only under federal
law, bUl also under Calj fot'nia law," said United S ates Attorney Andre Bi rotte Jr. "While California Jaw
pennits collective cLtltivation of marijuana ill limitec1 circumstances, it does not allow commercial
distribution through the store-front model we see across California.
The actions being announced today in the Central District of California include:
a criminal indictment that charges six people with marijuana trafficking that allegedly generated nearly
$15 million in profits in only eight months;
the filing of civil forfeiture lawsuits against three properties and a related seizure of more than $135,000
from the bank account of one property owner; and
warning letters sent to the operators and landlords of 38 marijuana stores.
The criminal case unsealed this week names six defendants linked to a now-defunct North Hollywood
marijuana store called NoHo Caregwers. The drug trafficking organization - which sold marijuana at
NoHo Caregivers, sold marijuana to other stores, and sent marijuana to affiliates in New York and
Pennsylvania - distributed approximately 600 to 700 pounds of marijuana per month, according to the
indictment.
The defendants used encrypted BlackBerry devices, but investigators were able to intercept email
communications that detailed the distribution of marijuana, as well as the payments for the drugs. That
indictment details one email exchange between the two lead defendants in which they "discussed the
amounts of marijuana they intended to distribute monthly over the coming year and estimated that they
would each receive over $194,000 in profits per month."
The defendants named in the NoHo Caregivers indictment are:
Paul A. Montoya, 37, of Arleta, a co-owner of NoHo, who was arrested on Wednesday;
Noah Joel Kleinman, 36, of Santa Clarita, a co-owner of NoHo, who has agreed to surrellder to federal
authorities on Tuesday;
Kathy Thabet, 25, of Los Angeles, a courier and bookkeeper for the organization, who was arrested on
www.juslice.gov/usaO/Ulc/Pressroom/2011/144.hlm(
Communi}, ()urre
Givi ng Back tlllh e
Commonily lhrnogh a
variety of Yen ues &
initat i ves.
VWA
V I C f I ,
W I T N ESS
ASSI STA CE
Making sure that victlms 0
crim es are treated with cor
fairness and respect.
Individuals who believe II
may have been victims o(
discrim ina tion by Cou n tr.
and have questions about
settlement may email the
Oepa rtm en t of Jusrice at
RJN P_ 191
2/25/12 USDOJ: US Morney's Office - CENTRAL DISTRICT OF CALI FORN IA - 144
Wedneday;
James Stanley. 33. of Grass Valley, California, an alleged marijuana grower, who is currently a fugitive;
Bryant Watson, 43, of Douglassville, Pennsylvania, a NoHo customer on the East Coast, who was arrested
in Pennsylvania on Wednesday and has agreed to appear in Urrited States District Court in Los Angeles on
Tuesday; and
Casey Wheat, 40. of Huntington Beach, who allegedly arranged to transport marijuana for NoHo, who is
currently a fugitive.
The indictment alleges drug traffIcking violations, as well as money laundering charges. The indictment
also seeks the forfeiture of $14.7 million - which is a conservative estimate of the value of the marijuana
allegedly trafficked by the organization from the summer of 2008 through the beginning of 2009.
In relation to the NoHo case, federal agents on Wednesday executed a search warrant at NoHo's former
location, which is now occupied by a marijuana store called the Green Camel Collective. During the search,
agents seized about 23
t
h pounds of marijuana and nearly a pound of hashish - and observed two 16-year-
old boys who were smoking marijuana inside the store.
"NoHo Caregivers was illegally operating an enormously profitable marijuana store, said Special Agent in
Charge Leslie P. DeMarco of IRS-Criminal Investigation's Los Angeles Field Office. "IRS-CI specializes in
following the money in illegal drug operations, enabling increased criminal prosecutions and the forfeiture
of assets. IRS-CI will continue to work with our law enforcement partners to restore the respect for
federal laws that has not been exhibited in the medical marijuana industry during the past several years."
Prosecutors on Thursday filed three forfeiture actions against properties where the owners knowingly
allowed marijuana stores to operate. The buildings named in the forfeiture lawsuits house:
the Wildomar Patients Compassionate Group in Wildomar, a city that expressly prohibits marijuana
stores and has spent more than $50,000 on legal fees in its efforts to close the store;
Montclair Caregivers in an unincorporated part of Montclair, which has repeatedJy received citations-
ignoring most of them - from San Bernardino County Code Enforcement personnel; and
eight stores located in a two-story strip mall at 26402 Raymond Way in Lake Forest.
The forfeiture complaint relating to the Lake Forest building alleges that eight of 11 suites on the second
floor of the building are occupied by marijuana storM, and that a prior owner of rhe property had
previously received a warning letter from the DRA. According to the complaint, the operator of one of the
stores at the property has previously been convicted on narcotics-related charges. Records show that the
Orange County District Attorney (OCDA) charged [hree people related to anotber store on the property in
March 2010, and that the OCDA convicted the owner and the manager of another store in the building,
both of whom were sentenced to state prison in April 2010. The property is across the street from a school
serving pre-school and kindergarten students. As part of forfeiture efforts. authorities on Wednesday
seized $136,686 from a bank account controlled by the owner of the building. The forfeiture lawsuit states
that the City of Lake Forest has spent approximately $585,000 in legal fees as part of its efforts to shut
down the marijuana stores operating in the building.
[n addition to the criminal case and the forfeiture actions, the United States Attorney's Office sent dozens
ofletters yesterday to people affiliated with 38 marijuana stores in selected cities across the Soutbland.
Those recei vi ng letters - the owners of the build ings where the stores are allowed to operate, as we 11 as
some owners of the illegal stores - are warned that the stores are operating in violation of federal law and
that they have two weeks to "take the necessary steps to discontinue the sale and/or distribution of
marijuana" at the stores.
All known marjjuana stores in the following areas are being sent letters warning that their operations are in
violation of federal law:
Orange County - the cities of Lake Forest, Dana Point. Laguna Hills, Laguna Niguel, and Rancho Santa
Margarita;
Riverside County - the cities of Murrieta, Wildomar, and Temecula; and
Inland Empire - the cities of Pomona, Claremont, Upland, Montclair, and Chino.
The letters note that the operation of a marijuana store "may result in criminal prosecution,
imprisonment, fines, and forfeiture of assets, including the real property on which the dispensary is
operating and any money you receive (or have received) from the dispensary operator. OJ
The areas in which the initial \ 'arnings have been sent are all areas where local offi cials have taken steps to
eli minate marij uftna stores and have asked the federal government for assi stance. The United States
Attorney's Office will continue to ,\lork wi th local municipali ties and local law nforcement Lhroughollt lhe
Distr ict to assist in ongoi ng efforts to combat ill egal commercial marijuana operat ions.
www.justice.gov/usao/cac/Pressroom/2011/144.html RJN P. 192
EXHIBIT 22
RJN P. 193
Nutritional Concepts
660 Baker St., #217
Costa Mesa, CA 92626
U. S. Department of Justice
Central District of California
US Courthouse, I iii Floor
312 North Spring Street
Los Angeles, California 90() 12
January 18, 2012
Re: Marijuana Dispensary Operating af
660 Baker St., #217, Costa Mesa, CA 92626
Dear Nutritional Concepts:
This office has been advised by the Drug Enforcement Administration (DEA) that there is (or
recently was) a marijuana dispensary operating under the name "Nutritional Concepts" at the real
property located at 660 Baker St., #217, Costa Mesa, CA 92626, which property you own or
have under your management or control. This letter serves as formal notice to you that the
marijuana dispensary's operations violate United States law and that the violations of United
States law relating to the marijuana dispensary's operations on your property may result in
criminal prosecution, imprisonment, fines, and forfeiture of assets, including the real property on
which the dispensary is operating and any money you receive (or have received) from the
dispensary operator.
Under United States law a dispensary's operations involving sales and distribution of marijuana
are illegal and subject to criminal prosecution and civil enforcement actions. Property involved
in such operations, including real property, is subject to seizure by and forfeiture to the United
States. These penalties and remedies apply regardless of the purported purpose of the dispensary
or the uses for whjch marijuana is purportedly sold and distributed. Specifically, Title 21, United
States Coce, Section 856(a) provides:
It shall be unlawful to knowingly and intentionally rent, Lease, or make available
[or use, with or without compensation, [a] building, room, or enclosure for the
purpose of unlawfully manufacturing, storing, distributing or using a controlled
substance.
Section 881 (a)(7) of TitLe 21 provides:
The following shall be subject to forfeiture to the United States and no property
right shall exist in them: All real property, including any right, title, and interest
(including any leasehold interest) in the whole of any lot or tract of land which is
RJN P. 194
used in any manner or part, to commit, or to facilitate the commission of, a
violation of this
United States law takes precedence over State law and applies regardless of the particular uses
for which a dispensary is selling and distributing marijuana. Accordingly, it is nota defense to
either the referenced crime or to the forfeiture of property that the dispensary is providing
"medical marijuana." Even under these circumstances, an owner of real property with
knowledge or reason to know of illegal marijuana distribution occurring on real property that he
owns or controls may have his interest in the property forfeited to the government without
compensation.
As noted above, this letter is formal notification to you that the DEA has determined there is (or
recently was) a marijuana operating on the above described property. You are further
advised that the violations of federal law relating to the marijuana dispensalY' operating on your
property may result in criminal prosecution, imprisonment, fines and forfeiture of assets,
including the real property on which the dispensary is operating. Any money you receive (or
have received) from the dispensary operator may also be subject to seizure and forfeiture. Your
prompt attention to this matter is strongly advised. Please take the necessary steps to discontinue
the sale and/or distribution of marij uana at the location wi (hin 14 days of this
letter.
You may wish to seek independent legal advice concerning this matier. Please direct any
inquiries to Claire Charron at (213) 894-0496. You may also submit inquiries to
USACAC,BlanketNotice@usdoj .gov.
Regards.
ANDRE BIROTTE JR.
Uniter tates Attorney

Assistant U.S. Attorney
Chief, Asset Forfeiture Section
RJN P. 195
EXHIBIT 23
RJN P. 196
DECLARA TION OF HOWARD WEITZBERG
I, Howard Weitzberg, am over the age of 18 and am a citizen of the United States
of America.
1. My wife, Joyce Weitzberg, is a medical marijuana patient. She suffers
from a health condition which substantially impairs life activities. Her doctor
recommended medical marijuana to her. As part of the collective process, she
compassionately helps other seriously ill patients learn how to cultivate medical cannabis
for medical use.
2. In late January, I learned that a patient collective group that my wife is a
member of received a letter from the United States Attorney for the Central District of
California ordering the collective to shut down wi thin 14-days. I asked for and was
provided a true and COlTect copy of the letter, which I provjded to Marla James. The
copy of the letter included as an exhibit with this motion is a true and COlTect copy of the
letter provided to me by the patient collective. The letter was dated January 18,2012.
3. Through our own investigation, my wife and I learned that letters with the
same content and demand as the letter that is included with this motion were sent to all
other patient collectives in Costa Mesa.
4. On January 26, 2012 at approximately 8:15 a.m., I called Assistant U.S.
Attorney Greg Parham, the person that had signed the letter demanding closure. In the
course of my call with Mr. Parham he said: 1) "there is no such thing as medical
1
RJN P. 197
marijuana"; and 2) patient classes on cultivation of medication are equivalent to
teaching people how to rob banks and is not allowed."
5. During my phone conversation with Mr. Parham, when I asked him where
patients will be able to access medicatiQn because he had told me his office was going to
shut down all collectives, he told me, CLthey can go back to the streets to the same i11icit
dealers where they used to get it."
6. Mr. Parham told me Joyce could not have any classes for seriously ill,
or permanently injilled patients or discuss medical marijuana cultivation with
them.
I declare under penalty of perjury under the laws of the United States of America
that the foregoing declaration is made of my own personal knowledge and is true and
correct.
DATED: January 30, 2012
Harold Weitzberg
2
RJN P. 198
EXHIBIT 24
RJN P. 199
1
2
3 1.
DECLARA TION OF TRACIE BUTCHER
I, Tracie Butcher, declare as follows:
4 2. I am a resident of Mission Viejo, CA. r work as the office manager for the Law Office of
5 Matthew Pappas.
6 3. On July 18, 2013, I traveled with Mr. Pappas from Orange County to Los Angeles,
7 California for a meeting with Assistant U.S. Attorney in-charge of Asset Forfeiture Steven Welk and
8 Assistant U.S. Attorney Jonathan Galatzan. We arrived at the Spring Street U.S. Courthouse in Los
9 Angeles at approximately 2:00 p.m.
10 4. After parking and walking to the courthouse, we went through security and then rode the
11 elevator to the fioor of the U.S. Attomey. We checked-in, were told to go to another Ooor, and used the
12 phone on that floor to contact Mr. Galatzan. We waited a bit and a woman met us outside the locked
13 doors of the U.S. Attorney's offices on that floor, took us inside, gave us sticker-tags to wear, and then
14 had us sign a visitor log. Thereafter, the woman escorted us to a conference room where Mr. Welk and
15 Mr. Galatzan were already waiting. After entering the conference room, the door was closed, we sat
16 down, and I remained in the room the entire duration of the meeting. Although I took notes during the
17 meeting, my declaration is based entirely on my memory of the meeting and was made within days of
18 when the meeting took place.
19 5. During the meeting, Mr. Pappas asked Mr. Welk why the federal government was taking
20 forfeiture action against the landlords of properties where state compliant medical marijuana patient
21 collectives were leasing space. Mr. Welk said that there "are no collectives that are in compliance with
22 state law" in the entire Central District of California, which comprises multiple southern California
23 counties including Los Angeles and Orange counties. Mr. Pappas asked Mr. Welk if the U.S. Attorney
24 even checks for state compliance to which Mr. Welk shook his head indicating "no." He then said
25 compliance with state law is irrelevant and that "we are closing all collectives in the Central District - it
26 does not matter if they're state compliant."
27 6. During the meeting, Mr. Pappas asked why documents from the City of Anaheim received
28 as part of the discovery process included emails from P. Greg Parham, the Assistant U.S. Attorney
DECLARATION OF TRACIE BUTCHER (712212013) - 1
RJN P. 200
1 originally handling all of the medical marijuana federal enforcement action cases but who had left
2 indefinitely because of a medical issue, stating the U.S. Attorney had "strategically" decided not to send
3 any notices to landlords by registered or certified mail. Mr. Welk smiled and replied that the government
4 sends no notices at.ill to landlords it believes will not cooperate to begin with. He said filing the actions
5 without any notice had a "shock" value.
6 7. During the meeting, Mr. Pappas began saying that he knew the U.S. Attorney was only
7 going after collectives in cities that had asked for the federal government's assistance but before he could
8 finish his question, Mr. Welk interrupted and said, "no" and explained he was not just enforcing in the
9 cities that had asked for heip, but that he was going ''to close every collective in the Central District." He
10 repeated this statement throughout the meeting.
11 8. Throughout the meeting, Mr. Pappas discussed issues faced by medical cannabis patients.
12 He specifically brought up Marla James, a client of the law office who is confined to a wheelchair and
13 who suffers from a number of debilitating conditions. Mr. Pappas asked what could be done to ensure
14 prosecution of those people not complying with state law but leave-alone patients and caregivers operating
15 fully in compliance with the state's law. Mr. Welk acknowledged he had read about Mr. Pappas'
16 daughter, who became a medical cannabis patient after being severely assaulted and almost killed in
17 Nevada but said the patients would have to wait until Congress changed the law. Mr. Pappas brought up
18 the statements made by President Obama during campaign speeches and in television interviews and also
19 the policy statements made by Attomey General Eric Holder. After a while, Mr. Welk, who had moved
20 back in his chair with his arms folded and who appeared to be getting tired of the discussion about
21 patients, moved forward, put one of his hands forward, and while counting off on his fingers said, "look,
22 we're closing all of them because it is ethically, morally, religiously, and spiritually the right thing to do."
23 9. When Mr. Pappas asked where the patients were supposed to go to get medical marijuana if
24 all of the collectives and cultivators were shut down, Mr. Welk said, "I don't know what they'll do, but
25 there were plenty of place to get marijuana before these state marijuana laws were passed."
26 10. During the meeting, Mr. Pappas asked Mr. Welk why he was not following the guidance
27 and public statements made by the President, Attorney General Holder, former Deputy Attorney General
28 Ogdens, and Deputy Attorney General James Cole that federal enforcement resources would not be
DECLARATION OF TRACIE BUTCHER (712212013)2
RJN P. 201
1 targeted at patients and caregivers, including properly operating cultivators and dispensaries, in full
2 compliance with state law. Mr. Welk said Mr. Pappas was "mistaken" -- that the guidance only applies to
3 patients. He then said the same guidance "gives me full discretion" and that he had decided to close all
4 collectives, dispensaries, and cultivation sites in the Central District of California. Me Pappas then
5 brought up, as an example, a press statement made by Attorney General Holder in New Mexico shortly
6 after the U.S. Attorneys in California began targeting patient collectives and Mr. Holder's recent
7 testimony before a committee of the House of Representatives. Me Pappas noted that Mr. Holder was
8 asked whether New Mexico dispensaries and cultivators would be targeted by the reporter asking the
9 question to which Mr. Holder explained the federal government was only targeting "drug traffickers" as
10 we think of that tenn and not cultivators or dispensaries or patients operating in full compliance with state
11 law. Mr. Welk appeared unfamiliar with the testimony of Mr. Holder before the House conunittee or the
12 various press statements Mr. Pappas had raised. Mr. Pappas raised Mr. Cole's June, 2011 memorandum
13 and statements Mr. Cole had made during a November, 2012 "60-Minutes" interview. Mr. Welk
14 responded simply that he was going to close all collectives in "his jurisdiction." Again ttying to discuss
15 resolution of the issues with Mr. Welk, Mr. Pappas asked why Mr. Birotte was allowing the policy of not
16 even looking at state compliance while Mr. John Walsh, the U.S. Attorney in Colorado, was not. Mr.
17 Welk then stated that he remembered when John Walsh "sat down that hall" (pointing) and he had no idea
18 why Mr. Walsh was doing what he was doing.
19 11. During the meeting, Mr. Welk asked Mr. Pappas first telling him "you do not have to
20 answer this if you don't want to" whether Mr. Pappas had been "advising" patients to keep their collective
21 groups open despite warning letters sent by the U.S. Attorney. Mr. Pappas said that he has not advised
22 patient groups to stay open that have received the federal letter and that he had in-fact, for example in
23 Long Beach and Santa Ana, told all of the collectives to close in those cities once it was reported to him
24 the U.S. Attorney had started sending letters to landlords. Mr. Pappas said that he had not advised
25 collectives in cities that had not received federal letters to close because he had believed, until that
26 meeting with Mr. Welk, that the federal government was only taking enforcement action in cities that had
27 asked for its assistance. Mr. Pappas also explained that, until the meeting that day, he believed Mr. Welk
28 was following the policy directives and statements issued by the Attorney General and his deputies. Mr.
RJN P. 202
1 Welk again reiterated that he was closing all collectives, regardless of state law compliance, in the Central
2 District.
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12. During the meeting, Mr. Welk stated several times that he was offended by the comparison
of Mr. Parham and him to the government of fran. f believe he may have said the comparison made to
both the governments ofIran and Syria. He clarified that he was referring to various press articles that
had been published about the case and specifically to a reference made in an editorial article written by
people working for the Institute for Justice, an organization helping on one of the forfeiture cases with Mr.
Pappas. Following Mr. Welk's reference to being a person with a family who should not be compared to
Iran, Mr. Pappas reminded him that the landowners, who Mr. Welk had just told him during the meeting
received no notice for "strategic" and "shock" purposes before being served with lis pendens and
forfeiture lawsuits, had been severely traumatized with at least one having to go to the hospital because of
the stress. Mr. Welk insisted the landlords had to know they were breaking federal law to which Mr.
Pappas responded they did not and explained that most citizens who are not lawyers do not understand the
differences between the different sovereigns - especially when states are reported as "legalizing" medical
marijuana and considering the public statements made by President Obama, Attorney General Holder and
the deputy attorney generals. Mr. Pappas also reminded Mr. Welk that the federal law Mr. Welk says is
being broken is one meant to combat recreational drug abuse, not a law meant to thwart the use of a
medicine prescribed by doctors that even the federal government's National Cancer Institute has reported
on its website combats various forms of cancer. He also told Mr. Welk that he was mistaken about the
landlords breaking federal law. Mr. Pappas reminded Mr. Welk it is not the landlords allegedly breaking a
federal law meant to combat recreational drug abuse, but rather the dispensaries -- that going after the
landlords showed the federal government simply wants to get to large sums of money.
I declare under penalty of perjury under the laws of the State of California and the United States
and America that the aforementioned statement represents my personal knowledge and is true and correct.
EXECUTED this 22
nd
day of July, 2013:
RJN P. 203
EXHIBIT 25
RJN P. 204
THE ORANGE COUNTY
REGISTER NEWS
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Published: Feb. 7, 2012 Updated: Feb. 8, 20t2 2:Oi p.m.
Costa Mesa asked feds for help in pot
crackdown
About a dozen medical marijuana patients and former collective owners protested the city's
involvement in federal crackdown outside City Hall Tuesday.
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By SEAN GREENE I FOR THE ORANGE COUNTY REGISTER
COSTA MES.A - Months before federal authorities shut dawn dozens of medical marijuana facilities, the city
ask.ed them for hel p.
Tangled In a web of lawsuits with several dispensar,ies, the City Council and the city attorney turned to the
United States Attorney's affice. requesting federal assistance in shutting down 27 known active meolcal
marijuana collectives - which are illegal under dty ordinance - according to an Oct. 26 letter obtained by
the Register.
Kandice Hawes. 30. dJredor of Orange County
NORML. holds up a sign before the start of the Costa
Mesa City Council meeting on Tuesday night. Costa
Mesa police officers Informed everyone attending the
council meeting that signs were not allowed in council
chambers.
LEON RD RTiZ THE R4 GE '"'.DUN-(
REG TEq
MORE PHOTOS
,tVe believe that by work.ing together 'with the
U.S. Department of Justice we can eradicate
these illegal businesses from our City, the letter,
signed by City Attorney Tom Duarte and sent on
behalf of the cOllneil. stated. -In our opinion,
twenty-seven dispensaries in a 16.8 square
mile area constitute mass cultivation and
distribution of marijuana.
Owners of the now-closed medical marijuana
collectives in Costa Mesa have expressed
frustration with the City Council for involving
federal authorities. About a doz.en former
collective owners and cannabis patients
protested before Tuesday's City Council meeting
and addressed the council in the meeting's
public comment section.
Among the speakers was Joyce Weitzberg, a 62-
year-old retired nurse and owner of Nutritional
Concepts Pain ReleafCenter, vvho said not ali
medicall1larijuana stores are created equal.
In an impassioned speech, Weltz.berg asked the
City Council to adopt an emergency ordinance
that would allow two or three collectives to re-
open so local patients could get their medidne.
Weitzberg opened her own non-profit collective
two 'fears ago alter becoming a patient of
medical marijuana - a last re sort to manage
the pain of her bone and lung diseases, she
said in an InteNiew early this weel<. She played
by all the rules and jumped through all the
hoops, she said.
RJN P. 205
Clone it1 00 percent right and I'm guilty by
association. There's no due process. - Weitrberg
said.
After the collectives were shut down, rumors in
the mecflcal marijuana community swirled that
the City Council called for both the federal
crackdown and Sunday's cancellation of local
radio station KOel LP-FM's "Cannabis Community- show Both the station's management and the city have
said there was no federal or local influence on the decision to cancel the show.
uCannabis Community," hosted by Robert Martinez, a veteran U.S. Army medic and president of medical
marijuana collective Newport Mesa Patients Association, recently broadcast a show from Mayor Gary
Monahan's bar, Skosh Monahans.
During the Jan. 15 show. Monailan joined a number of medical cannabis proponents in support of
regulating the business es, which are forbidden by federal law out allowed by California.
like the Wild. wild west out there,- he said on the show. "Everybody's doing whatever they want to do.
You've got some really good dispensaries; you've got some really bad dispensaries that are just out for a
quick buck. ... There'ra a lot of good ones that we want to support.u
Cannabis collective owners and activists questioned the timing oflhe appearance, out Monahan said he did
not know when federal authorities would come.
not happy with what Monahan said in an interview. ,., do believe that the dispensaries are
what the future is going to hold and I would like to support them in their efforts to get the businesses
regulated to some type of standard so they can operate.
u
Councilwoman Wendy Leece said she supports the crackdown, adding the city had too many medical
marijuana facilities.
-I believe the number of clinics in Costa Mesa has been harmful and the number has been out of
she salO.
The CitlS letter was sent in response to a Department of Justice announcement in early October that the four
California-ased U.S. Attorneys had begun a statewide enforcement effort targeting the state's commercial
marij uana industry.
The announcement came on the heels of the City' of Lake Forests public call for federal assistance in
shutting down a number of medical marijuana dispensaries in I',tay 2011 .
Costa Mesa's letter noted the high cost offighling dispensaries in court and rising complaints from
residents and business owners, who were especially concerned that the dispensaries were deterring
potential customers.
The city has spent $-457,612 in legal cases Involving marijuana dispensaries as of Jan. 31, city spoke sman
Bill LoMeli said.
RJN P. 206
EXHIBIT 26
RJN P. 207
US Attorney Hints Medical Marijuana Crackdown to Continue I Legal ... hltp:/!b logs. lawyers. com/20 l3/09/us-at torney-hints-medica l-marij uana-c ...
20f4
Lawyers.com > Legal News > -, Crime Marijuana '> US AttOfnay Hmh;: Medrcal Crackdown to Continue
US Attorney Hints Medical Marijuana Crackdown to Continue
POSTED SEPTEMBER 9. 2013 IN CRIME MARIJUANA BY JOSH CRANK 4 COMI.1ENTS
7 Unkedln 0
U.S. Attorney Melinda Haag, one of four federal
attorneys behind the nearly two-year crackdown on
medical marijuana in California. suggested her
enforcement will continue despite new drug policy
guidance from the Department of Justice.
Attorney General Eric Holder announced in late
August that the federal government won't sue to
block state laws legalizing marijuana in various
forms. including the legalization of recreational
marijuana in Colorado and Washington. An
accompanying memo issued by Deputy Attorney
General James M. Cole identified eight specific
enforcement priorities on which the U.S. Attorneys
should focus.
In the wake of the Justice Department memo, Haag
spokesperson Uli Arauzhaase made a brief
comment:
"At this time the US Attorney is nOI releasing any
public statements. The office is evaluating the new
iStockphotofThinkstock
guidelines and for the most part il appears thatlhe cases that have been brought in this district are
already in compliance with the guidelines. Therefore. we do not expect a significant change."
Memo Could Affect Critical Case
The fact that Arauzhaase hedged a bit by claiming Haag's enforcement cof'lplies with the new guidelines
-for me most part" could be good news for Oakland's Harborside Health Center. the world's largest
medical marijuana dispensary. Since July 2012, Haag has been trying to seize Harborside and its assets,
but the dispensary has remained open due in part to legal support from Oakland's City Attorney.
The Justice Department memo says that 'in exercising prosecutorial discretion.
prosecutors should not consider the size or commercial nature of a marijuana
operation alone as a proxy for assessing whether marijuana trafficking implicates
the Departmenl"s enforcement priorities."'
This directive may as well have mentioned Harborside by name. In announcing
her forfeiture action against Harborside, Haag said. 'the larger the operation. the
greater the likelihood lhat there will be abuse of the state's medical marijuana
laws, and marijuana in the hands of individuals who do not have a demonstrated
medical need:
U S.Attomey
Melinda Haag
To date. Harborside has not been accused of specific Violations of California's
medical marijuana laws. Time will tell if Haag will accept the Justice Department's
guidance and drop her forfeiture case against Harborside. But because federal law enforcement is still
left up to her personal discretion, Haag is at liberty to ignore the memo and proceed.
Federal Attorneys Go Their Own Way
The new Justice Department guidance elaborates on how U.S. Attorneys should assess threats to its
eight marijuana enforcement priorities. encouraging prosecutors to "continue to review marijuana cases
on a case-by-case basis and weigh all available information and evidence"' before deciding to snut
dispensaries down.
But Cole's presumption that U.S. Attorneys have been laking a case- by-case approach shows just how
easy it is for them to ignore this guidance altogether. In a 2012 interview with Lawyers.com, Thorn
Mrozek. spokesperson for U.S. Attorney Andre Birotte Jr. of Califomia's Central Distlict. said the state's
federal attorneys "are not examining each marijuana operation" since launci1ing their coordinated
crackdown in October 2011.
Mrozek broadly characterized California's medical marijuana dispensaries as being in violation of state
laws requiring them to operate as non-profit organizations and stressed that federal law gives the U.S.
Attorneys the right to shut down any marijuana operation without further explanation.
"We have yet to see a marijuana store that is operating as a true non-profit;' Mrozek said. "I'm not saying
that we have looked at every operation, nor am I saying that there isn't one out there, but I am saying
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RJN P. 208
9/9/20133:53 PM
EXHIBIT 27
RJN P. 209
aze of illogic on rna iju na
In city that hosts huge pot expo, feds target small-time landlord
STEVE LOPEZ
Marijuana
policy. like
immigratien
policy, is
something
thecOlmtry
just can't
seem to get
right.
For the
latest evidence of how con-
fusing pot laws can be, just
take a look atAnaheim,
where a property owner is
iighting a federal govern-
ment attempt to seize Ius
two-story commercial build-
ing, which is worth about
$15 million.
Tony Jalali's C11me?
On two occasions he
reJl.ted one ofllis 12 office
spaces to medical marijua-
na dispensaries. thinking
such operations were per-
fectly legal In California.
But the feds see thing'S
differently. After an under-
cover Anaheim police otl'icer
used a doctor's recom-
mendation card to pmchase
of marijuana from
the tenant., the U.S. Dmg
Enforcement Adminis-
tration swooped in. and
Jalali was notifi ed last ycar
that the federal government
had initiated proceedings to
seize the entire building in
which the sale had taken
place.
Its not hard to under-
stand why Jalali was con-
fused by mixed signals on
marijuana pollcy. or why he
was unaware of an Anaheim
ordinance prohibiting dis-
pensaries in the city. For one
thing. there were ot.her
dispensaries in town when
he rented space to an opera-
tor. And at its convention
center. Anaheim hosts an
annual event bOled as the
"the world's biggest mari-
juana festival. "
"1 saw banners on Ar-
tesiaBoulevard," said Jalal!.
"Kush Expo. City of Ana-
heinl."
That's 11ght. Anaheim is
home to a gigantic annual
pot emporium. wit.h more
smoke in the air than you
get from the average Califot'-
niawildllre.
Last mont.h's extrava-
ganza featured a "Hot Kush
Girl Contest" and awards
for the "best strains" in
Southern Oaliforrrla. Festi-
val attendees were infol1ned
they co dn't sample the
g{)ods without marijuana
recommendations fl'Om
doctors. but no wOlTies.
"Doctors will be on site!'"
After looking at photos of
the Kush ElI."])o. I'm guess-
ingthat nearby Disneyland
is only the second-happiest
place on earth. And I'm
wondering-why thefeds
didn' t just seize the conven-
tion center.
AddingtoJalali'sconfu-
sion is the fact that Califor-
nia voters approved medical
cannabis in 1996. Even the
U.S. attorney's office in
recent. years has sent (:on-
fusing Si&11als as to where it
stnnds.
"I had no idea I was
dOlllg anything wrong. " said
Jalali. who kicked out his
pol, tenant as soon-as he got
the seizure notice last yea]'.
But that wasn't enough t.o
call otl'the dogs. and JalaiUs
still fighting to save his
property in federal court,
'Nith the nex."t healing sched-
uled fol' Monday.
"I have property rights in
this country." said Jalali. a
comput.er engineer mani.ed
to n dentist. with two kids in
college. "I pay my t!L'{es. I
obey the law. I have a spot-
less record."
Jalali said he moved to
the U.S. Irom Iran In 1978 to
enjoy the benefits of country
where rule oflaw prevails.
He never dJ'ean1ed the gov-
ernment could take his
property without even
accllsinghimofactime. The
city has claimed it sent two
notices about problems
with a dispensary to Jalali's
home in II'Vin.e. a<:cording to
a Jalali attorney, but he
denies receiving anything.
As for the U.S. attorney's
office, whichinit.iated the
seizure, it has admitted in
court that it sent no wam-
ing-to Jalali before moving
to snatch property he
bought in 2003 as a nest egg
investment.
Not that it's any solace.
II
AN ANAHEIM office building owned by Tony Jalali
and his wife is t al'geted for seizW'e by the U.S.
hut. Jalali has lots of com-
pany.
One onus attQl11eys,
Matthew Pappas, repre-
sents four other Sout.hern
California clients with simi-
lar seizures. Another of
Jalali's attorneys. Larry
Salzman ofthe Institute for
Justice, said the Los Ange-
les branch ofthe U.S. at-
torney's office bas filed 30
ci\1i1 forfeiture cases against
SOuthern California land-
lords with marijuana dis-
pensaries since 20ll. and
sent "threateIUJlgletters" to
an additional 500 landlords.
This is happeni.l1gi.n
other states as well.
"But California is really
ground zero forthe use of
forfeiture m states that have
deerimlnal1zed marijuana,"
said Salzman. who added
that state Jaw prohjbits
fOli'eiture of property unless
the owner is convicted of a
crime.
Salzman suggested a
motive other than. cracking
down on dmguse. He said
that under whats called
"equitable sharing," federal
and local agencies are shar-
ing t.he proceeds from con-
fiscating property.
take Tony's
building," said Salzman.
"lhe nloney is split bet\veen
the Drug Enforcement
Administ.ration and the city
of Anaheim. That financial
incentive has driven a literal
e:{plosion in civil forfeiture
activity ......
A __ V.-.....
A spokesman tar the
Anaheim city attomey tolc!
me there'd be no cormnent
011 the Jalali case while it's
being IiCigated.
Thorn Mrozek. a U.S.
attorney spokesman, said
the sale of marijuana is
against tecterallaw and the
"vast majority" of Califor-
nia's mecticaJ dispensaries
do not comply with state
Jaw, either because they are
for-profit operations or
because they do not serve as
primary caregivers. l Ie said
most of the 30 cases have
not, resulted in seiZtlreS, but
that landlords in 11 cases
have forked over a total of
$532.000 to settle. And he
added that his office is
responding to an explosion
of dispensaries that led t
lot s of problems for cities
and for neighbors of t he pot
shops.
No doubt, many shops
used the medical cover to
sell pot for recreational use.
But why not stop with the
mLxed signals, end the
winless and costly war on
wugs, and Jebralize. regulate
and tax marijuana, which is
nowhere near as blg a social
or medical problem as per-
fectly legal alcohol?
And if we're not yet ready
for that, can' t the fedssim
ply shut an pot
dispensary rather than steal
a.n entire building (rom a
law-abiding' landlord '?
steve.lope:WillatinJes.com
EXHIBIT 28
RJN P. 211
U.S.A.M. 9-2.400 Prior Approvals Chart
USAM
SECTION
TYPE & SCOPE OF REPORTING, CONSULTING CONTACT
9-2.031
9-2.032
9-2.136(D)
OR APPROVAL
Approval is required to continue and/or
initiate a federal prosecution affected by
Petite policy (dual and successive
p rosecut ion).
Notification to Criminal Division of certain
prosecutions of attorneys, see 9-2.032.
The USAO shall notify CTS of the opening of
any international terrorism matter. The
notification should include the names and
identifiers, if known, of subjects of the
investigation and a general overview of the
investigation, so that CTS may attempt to
identify linkages to, and deconflict the
investigation with, investigations that may be
ongoing in other districts or within CTS and
may raise any concerns about the proposed
investigation. To allow this process,
notification should be made in advance where
practicable and otherwise as SOOI1 as possible,
but the USAO should not delay in taking
necessa ry investigative action, particula rly
where such action is covert. Notification may
be made by email or telephone; or, as
necessary to protect classified and sensitive
information, by secu re fax or telephone; and
may utilize the standard Case Notification
Form available from CTS if preferred. If after
notification, CTS determines that there are
related matters pending in other districts that
could be affected by investigative action in
the new matter, CTS will so inform the USAO
Assistant Attorney General, Criminal
Division, through the Policy and
Statutory Enforcement Unit of the Office
of Enforcement Operations.
AAG/Criminal Division through Policy
and Statutory Enforcement Unit, Office
of Enforcement Operations.
Regional ATAC Coordinator in the
Counterterrorism Section.
RJN P. 212
9-2.136(0)
9-2.136(E)
9-2.136(F)
and will advise the other districts of the new
matter.
In all international terrorism matters, the
USAO shall notify CTS of significant
developments in the investigation and
prosecution, including the filing of search
warrants; the filing of material witness
warrants; the application for electronic
surveillance; the declination of the matter
without filing of charges; the filing and
dismissal of criminal or immigration charges;
the entering of plea agreements; the
initiation and resu Its of trials; and the results
of sentencings and appeals. CTS will be
responsible for reporting to the Department's
leadership on such developments, although
the USAO should also send Urgent Reports on
such matters as required byUSAM Chapter 1-
13.000. Regional AlAC Coordinator in the
Where a USAO is aware that another USAO or Regional ATAC Coordinator in the
CTS has a related international terrorism
matter opened, the USAO shall not issue
grand jury subpoenas or apply for a pen
register or trap and trace order that may
impact such related matters without first
consulting with CTS and the other district.
Counterterrorism Section, and the AlAC
Coordinator or other designated AUSAs
in the other district.
When CTS becomes aware of information that The ATAC Coordinator or other
may be relevant to an international terrorism designated AUSAs in the other district.
matter pending in a USAO, including relevant
investigative action that may be planned in
another district a nd issues rega rding FISA
searches or electronic surveillance, CTS shall
share that information directly with the USAO
as soon as practicable and to the extent
authorized by the originator of the
information. Where relevant information is
RJN P. 213
9-2.136(H)
9-2.136(H)
known to CTS but cannot be shared with a
USAO due to originator requirements, CTS
shall request that the originator authorize
such sharing.
Prior express approval of the Assistant
Attorney General of the National Security
Division (AAG) or his designee is
presumptively required for certain court
actions involving the international terrorism-
focused (Category 1) statutes:
1. Filing an application for a search
warrant.
2. Filing an application for a material
witness warrant.
3. Filing a criminal complaint or
information or seeking the return of
an indictment.
4. Filing a superseding complaint or
information, or seeking the return of
a superseding indictment.
S. Dismissing a charge for which AAG
approval was initially required,
including as part of a plea agreement.
6. Other specific court filings as
requested by the AAG.
Prior approval is required in other (Category
2) international terrorism matters only upon
AAG request. As noted above, even court
actions that do not require prior approval will
qualify as significant developments with
notification requirements.
Before entering into a plea agreement in a
case in which court documents utilize one of
the Category 1 statutes {or cases using
AAG of the National Security Division or
his/her designee.
AAG of the National Security Division.
RJN P. 214
9-2.136{1}
9-2.136(J)
9-2.137
9-2.137
Category 2 statutes in which the AAG makes a
requestL the USAO shall notify and seek the
concurrence of the AAG, with any
disagreement to be resolved by the Deputy
Attorney General.
If exigent circumstances require a USAO to Regional ATAC Coordinator in the
take immediate action in an international Counterterrorism Section.
terrorism matter without complying with the
consultation or prior approval requirements
set forth above, the USAO must notify CTS of
any action taken as soon as practicable
thereafter and the exigent circumstances that
precluded obtaining prior approval. The USAO
shall provide copies of any court filings made.
The written certification of the Attorney Regional ATAC Coordinator in the
General is required to allege a violation of 18 Counterterrorism Section.
U.s.c. 2332.
The USAO shall notify US, through its CTS
Regional Coordinator, the CTS Domestic
Terrorism Coordinator, or the National ATAC
Coordinator, of the initiation and significant
developments in domestic terrorism
investigations (i.e., a terrorism investigation
that does not involve foreign nationals,
foreign locations, or connections to foreign
countries or groups).
Regional ATAC Coordinator, the CTS
Domestic Terrorism Coordinator, or the
National ATAC Coordinator in the
When CTS becomes aware of information that The ATAC Coordinator or other
may be relevant to a domestic terrorism designated AUSAs in the other district.
matter pending in a USAO, including relevant
investigative action that may be planned in
another district, CTS shall share that
information directly with the USAO as soon as
practicable and to the extent authorized by
the originator of the information. Where
relevant information is known to CTS but
cannot be shared with a USAO due to
RJNP.215
9-2.138(C)
9-2.138(D)
9-2.138(D)
9-2.138{D)
9-2.138{E)
originator requirements, CTS shall request
that the originator authorize such sharing.
Notifying CTS of routine hoax or threat
matters is not required, but is encouraged.
USAOs must promptly notify CTS when the
USAO opens any WMD matter.
Counterterrorism Section
Where a USAO is aware that another USAO or Counterterrorism Section and the other
CTS has opened a related matter, the USAO
shall not issue a grand jury subpoena or apply
for a pen register or trap and trace order that
may affect the related matter without first
consulting with CTS and the other district.
The USAO shall notify CTS of any significant
development in the investigation and
prosecution of the matter, including the filing
of a search warrant; the filing of a material
witness warrant; the application for electronic
the entering of a plea agreement; the
initiation and resu Its of trials; a nd the results
of sentencings and appeals.
Prior, express approva I of the Assista nt
Attorney General (AAG) of the
National Security Division (or his or her
designee) is required for the following court
actions involVing a WMD matter: filing an
application for a search warrant; filing an
application for a material witness warrant;
filing a criminal complaint or information or
seeking the return of an indictment; filing a
superseding complaint or information, or
seeking the return of a superseding
indictment; dismissing a charge for which
district
Co u nte rte rro rism Secti on
Assistant Attorney General (AAG) of the
National Security Division, through the
RJN P. 216
9-2.138(F)
9-2.138(G)
9-2.139(C)
9-2.139(C)
9- 2.139(D)
9-2.139(D)
AAG approval was initially required, including
as part of a plea agreement; and other
specific court filings as requested by the AAG.
The USAO must seek the prior concurrence of Assistant Attorney General (AAG) of the
the AAG before entering into a plea National Security Division
agreement in a WMD matter.
If exigent circumstances require a USAO to
take immediate action in a WMD matter
without complying with the notification,
consultation, concurrence, or prior approval
requirements set forth above, the USAO must
promptly notify CTS of any action taken and
of the exigent circumstances that precluded
obtaining prior approval.
When the USAO opens any torture, war
crimes, or genocide matter, the USAO shall
promptly notify the Human Rights and Special
Prosecutions Section (H RSP) of the Cri minal
Division.
HRSP shall immediately notify CTS of all
notifications made by a USAO under 9-
2.139(C)
Human Rights and Special Prosecutions
Section (HRSP).
Where a USAO is aware that another USAO or Human Rights and Special Prosecutions
HRSP has opened a related matter, the USAO Section (HRSP) and the other district.
shall not issue a grand jury subpoena or apply
for a pen register or trap and trace order that
may affect the related matter without first
consulting with HRSP and the other district.
The USAO shall notify HRSP of any significant Human Rights and Special Prosecutions
development in the investigation and Section (HRSP) .
prosecution of the matter, including the filing
of a search warrant; the filing of a material
witness warrant; the application for electronic
RJN P. 217
9-2.139{E)
9-2.139{F)
9-2.139{G)
9-2.145
the entering of a plea agreement; the
initiation and results of trials; and the results
of sentencings and appeals.
Prior, express approval of the Assistant
Attorney General (AAG) of the Criminal
Division (or his or her designee) is required
for the following court actions involving a
torture, war crimes, or genocide matter: filing
an application for a search warrant; filing an
application for a material witness warrant;
filing a criminal complaint or information or
seeking the return of an indictment; filing a
superseding complaint or information, or
seeking the return of a superseding
indictment; dismissing a charge for which
AAG approval was initially required, including
as part of a plea agreement; and other
specific court filings as requested by the AAG.
Assistant Attorney General (AAG) of the
Criminal Division, through the Human
Rights and Special Prosecutions Section
(HRSP).
The USAO must seek the prior concurrence of Assistant Attorney General (AAG) of the
the AAG before entering into a plea
agreement in a torture, war crimes, or
genocide matter.
If exigent circumstances require a USAO to
take immediate action in a torture, war
crimes, or genocide matter without complying
with the notification, consultation,
concurrence, or prior approval requirements
set forth above, the USAO must promptly
notify H RSP of a ny action ta ken and of the
exigent circumstances that precluded
obtaining prior approval.
Approval to dismiss any charge or reduce any
charge for which approval was necessary to
Criminal Division.
Human Rights and Special Prosecutions
Section (HRSP).
Assistant Attorney General,
Criminal Division having jurisdiction of
RJNP.218
9-2.154
9-2.159
9-2. 170
9-2.170
through the Section indict or file an
information or complaint.
the Offense.
Legislative proposals should be forwarded for Office of Policy and Legislation.
consultation.
Approval to dismiss case based on agency
refusal to produce documents.
Prior approval is required of the following
Criminal Division.
Solicitor General, through Appellate
appeals, requests, or petitions: 1) Any appeal Section, Criminal Division.
of a decision adverse to the government,
including an appeal of an order releasing a
charged or convicted defendant or a request
to seek a stay of a decision adverse to the
government. 2) A petition for rehearing that
suggests rehearing en banc-and any rare
appeal in which the government wishes to
suggest that it be heard initially en banco See
Fed. R. App. P. 35(c). Although a petition for
panel rehearing does not require the approval
of the Solicitor General, one should not be
filed until the Solicitor General has been given
the opportunity to decide whether the case
merits en banc review. 3) A petition for
mandamus or other extraordinary relief. 4} In
a government appeal, a request that the case
be assigned to a different district court judge
on remand. 5) A request for recusal of a court
of appeals judge. 6) A petition for certiorari
(only the Solicitor General may file petitions
for certiora ri).
Notification is required of all adverse,
appealable district court decisions (including
adverse 28 U.S.c. 2255 habeas rulings,
coram nobis rulings, and forfeiture rulings).
USAOs need only report adverse district court
Sentencing Guidelines decisions if they wish
to obtain authorization to appeal that
Appellate Section, Criminal Division.
RJN P. 219
9-2.170
9-2.170
9-2.173
9-2.181
USAM
SECTION
9-5.150
decision. Other adverse sentencing decisions
should be reported.
Notification is required of every published
court of appeals' decision that is adverse to
the government in any respect.
Appellate Section, Criminal Division.
Consultation is required before confessing Appellate Section, Criminal Division.
error in a court of appeals, or before taking a
position that may be inconsistent with the
government's position in another case.
Under some treaties, prosecutors are Consular Officials of foreign countries.
required to notify the consula r official when a Contact the Office of Internationa I
foreign national is arrested in the United
States on federal criminal charges.
Approval is required for Organized Crime
Strike Force matters. Every significant action
in the investigation and prosecution, from
case initiation, court authorized electronic
surveillance, witness immunities, witness
protection requests, undercover proposals,
case indictment, disposition by plea, and
other important events must be approved in
advance by Organized Crime and Gang
Section. All significant dispositions, including
indictments and verdicts, must be reported to
Organized Crime and Gang Section in writing.
Affairs, Criminal Division, to determine
whether a treaty requires contact with a
consular official.
Organized Crime and Gang Section,
Criminal Division.
TYPE & SCOPE OF REPORTIING, CONSULTING CONTACT
OR APPROVAL
Approval is required to move for or consent Deputy Attorney General (through the
to closure of judicial proceedings. 28 C.F.R. Division having supervisory authority
50.9. over the offense charged; the Office of
Enforcement Operations, through the
Policy and Statutory Enforcement Unit,
RJN P. 220
9-7.110
9-7. 111
9-7.112
9-7.200
9-7. 302
handles these approvals for the
Criminal Division).
Approval is required for applications for court Assistant Attorney General,
orders authorizing the interception of oral, Criminal Division or Deputy Assistant
wire or electronic communications (except for Attorney General, through the Office of
applications involving electronic Enforcement Operations.
commu n ications to digita I-display paging
device-which may be approved by a United
States Attorney). Approval is also required for
extension requests.
Approval is required for roving interception of Attorney General, Deputy Attorney
wire and oral communications.
Approval is required for emergency
interceptions under 18 U.s.c. 2518(7}
without a court order.
General, Associate Attorney General,
Assistant Attorney General, or Acting
Assistant Attorney Genera!, through
Office of Enforcement Operations,
Criminal Division.
Attorney General, Deputy Attorney
General, Associate Attorney General
(after obtaining oral approval of AAG or
DAAG of Criminal Division, through
Office of Enforcement Operations).
Approval is required to use video surveillance Assistant Attorney General, Deputy
for law enforcement purposes when there is a Assistant Attorney General, Director and
constitutionally protected expectation of Associate Directors of the Office of
privacy requiring judicia I authorization. Enforcement Operations, Criminal
Division.
Approval is requi red to intercept a non- Di rector or Associate Director of the
telephonic verbal communication without the Office of Enforcement Operations,
consent of all parties to the communication
(but with the consent of at least one party to
the communication),when it is known that: 1)
The monitoring relates to an investigation of a
member of Congress, a federal judge, a
member of the Executive Branch at Executive
Level IV, or above, or a person who has
Criminal Division.
RJN P. 221
9-7. 500
served in such capacity within the previous
two years; (2) The monitoring relates to an
investigation of the Governor, Lieutenant
Governor, or Attorney General of any State or
Territory, or a judge or justice of the highest
court of any State or Territory, and the
offense investigated is one involving bribery,
conflict of interest, or extortion relating to the
performance of his or her official duties (3)
Any party to the communication is a member
of the diplomatic corps of a foreign country;
(4) any party to the communication is or has
been a member of the Witness Security
Program and that fact is known to the agency
involved or its officers; (5) the consenting or
nonconsenting person is in the custody of the
Bureau of Prisons or the United States
Marshals Service; or (6) the Attorney General,
Deputy Attorney General, Associate Attorney
General, any Assistant Attorney General, or
the United States Attorney in the district
where an investigation is being conducted has
requested the investigating agency to obtain
prior written consent before conducting
consensual monitoring in a specific
investigation.
The use of pen registers to collect all or part
of a URL is prohibited without prior
consultation with CCIPS. This policy does not
apply to applications for pen register orders
that would merely authorize collection of
Internet Protocol (IP) addresses, even if such
IP addresses can be readily translated into
URLs or portions of URLs. Similarly, this policy
does not apply to the collection, at a web
server, of tracing information indicating the
source of requests to view a particular URL
using a trap and trace order.
Computer Crime and Intellectual
Property Section, Crimina! Division.
RJN P. 222
9-8. 130
USAM
SECTION
9-10.020
9-10.040
9-10.040
9-10.050
9-10.050
Notification must be provided prior to filing
any motion to transfer a juvenile proceeding
to an adult prosecution.
Criminal Division.
OR APPROVAL
A district indicting a Title 21 capital offense Capital Case Unit, Criminal Division.
that occurred before March 6, 2006, should
consult with the Capital Case Unit ofthe
Criminal Division regarding indictment and
procedure.
In all cases subject to the provisions
of USAM Chapter 9-10.000, the Attorney
General wi ll make the final decision about
whether to seek the death penalty. The
Attorney General will convey the final
decision to the United States Attorney in a
letter authorizing him or her to seek or not to
seek the death penalty.
Attorney General.
In no event may the information identified in Attorney General.
the second paragraph of USAM 9-10.040 be
disclosed outside the Department and its
investigative agencies without prior approval
ofthe Attorney General. The United States
Attorneys may exercise their discretion,
however, to place additional limits on the
scope of confidentiality in capital cases
prosecuted in their Districts.
Prior to seeking an indictment for an offense
subject to the death penalty, the United
States Attorney is strongly advised, but not
required, to consult with the Capital Case
Unit.
Capital Case Unit, Criminal Division.
The United States Attorney must immediately Capital Case Unit, Criminal Division.
RJN P. 223
9-10.080
9-10.110
notify the Capital Case Unit when a capital
offense is charged and provide the Unit with a
copy of the indictment and cause number,
even if the materials described in USAM 9-
10.080 are not yet ready for submission.
The United States Attorney must submit to
the Assistant Attorney General for the
Criminal Division every case in which an
indictment has been or will be obtained that
charges an offense punishable by death or
alleges conduct that could be charged as an
offense punishable by death. The submissions
to the Assistant Attorney General must be
done as expeditiously as possible following
indictment, but no fewer than 90 days before
the Government is required, by an order of
the court, to file a notice that it intends to
seek the death penalty. In the absence of a
court established deadline for the Attorney
General's death penalty decision, the United
States Attorney must make the submission
sufficiently in advance oftrial to allow for
both the 90 day time period encompassed by
the review process plus any additional time
necessary to ensure that a notice of intent to
seek the death penalty is timely filed under 18
U.s.c. 3593(a). If a case is not submitted 90
days in advance of a deadline for the Attorney
General's decision or 150 days in advance of a
scheduled trial date, the prosecution
memorandum should include an explanation
of why the su bmission is untimely.
Absent the authorization of the Attorney
General, the United States Attorney may not
enter into a binding plea agreement that
precludes the United States from seeking the
death penalty with respect to any defendant
falling within the scope of USAMChapt er 9-
Criminal Division.
Attorney General.
RJN P. 224
9-10.110
9-10.140
9-11. 101
9-11. 120
9-11.140
9-11. 140
9-11. 150
10.000.
For proposed plea agreements that precede a
decision by the Attorney General to seek or
not to seek the death penalty, the United
States Attorney should send a request for
approval to the Assistant Attorney General for
the Criminal Division as early as possible,
absent unavoidable circumstances, no later
than 90 days prior to the date on which the
Government would be required, by an order
of the court or by the requirements of 18
U.s.c. 3593(a), to file a notice that it intends
to seek the death penalty.
Criminal Division.
Once the Attorney General has authorized the Attorney General.
United States Attorney to seek the death
penalty, the United States Attorney may not
withdraw a notice of intention to seek the
death penalty filed with the district court
unless authorized by the Attorney General.
Consultation is required before any grand jury Chief of the Organized Crime and Gang
report is initiated, whether by a regular or
special grand jury. See also 9-11. 330.
Section, Criminal Division.
Approval is required to resubmit matter to a United States Attorney.
grand jury after no bill.
See 9-13.525 for DOJ policy regarding issuing Office of International Affairs,
subpoenas to obtain evidence or testimony Criminal Division.
from other countries.
"Forthwith" subpoenas should be used only
when an immediate response is justified and
then may be used only with prior approval.
Prior approval is required to subpoena a
target to the grand jury.
United States Attorney.
United States Attorney or Assistant
Attorney General.
RJ N P. 225
9-11.160
9-11.242
9-11.260
9-11. 300
9-11. 330
9-11.330
Prior approval is required to resubpoena a
contumacious witness before successive
grand juries and to seek civil contempt
sanctions if the witness refuses to testify.
Requests for appointments of Non-
Department of Justice Government Attorneys
as Special Assistant United States Attorneys
or Special Assistant to the Attorney General
so that they may appear before the grand jury
must be made in writing.
Prior written approva I is required to request a
court for permission to disclose grand jury
materials under Federal Rules of Criminal
Criminal Division, through the Office of
Enforcement Operations.
Executive Office for United States
Attorneys (or Office of Enforcement
Operations, Criminal Division, if the less
common Special Assistant or Special
Assistant to the Attorney General
appointment is to be used in cases or
matters within the jurisdiction of the
Criminal Division.).
Assistant Attorney Genera! for the
Division having supervisory responsibi lity
for the principal offenses being
Procedure 6(e)(3)(E)(iv) (disclosure of 6(e) investigated. (If the Criminal Division has
material to State and Local Law Enforcement supervisory responsibility, such requests
Officials). for approval should be sent to the Policy
and Statutory Enforcement Unit of the
Office of Enforcement Operations.).
Prior certification is required to empanel a
special grand jury under 18 U.S.c. 3331(a).
Policy and Statutory Enforcement Unit of
the Office of Enforcement Operations,
Criminal Division.
Notification is requested when a special grand Chief of the Organized Crime and Gang
jury (empaneled under 18 U.S.c. 3331- Section, Criminal Division.
grand juries for organized crime) will be
considering the issuance of a report, or will be
preparing a report which the United States
Attorney has not requested.
Approval of draft special grand jury Chief of the Organized Crime and Gang
(18 USc. 3331-organized crime) reports is Section, Criminal Division.
required before the draft report may be
furnished to the special grand jury.
RJN P. 226
9-13.400
9-13.410
9-13.420
9-13.500
See Cri minal
Resource
Manual 276
Approval is required to: subpoena,
interrogate, arrest or indict members of the
news media, or to subpoena the telephone
toll records ofthe news media.
Approval is requi red to issue gra nd jury or
trial subpoena to attorneys for information
relating to the representation of client.
No application for a search warrant for a
subject attorney's office may be made to a
Attorney General, through the Division
having supervisory authority over the
offense charged. If the Criminal Division
has supervisory authority, requests
should be sent to the Policy and
Statutory Enforcement Unit of the Office
of Operations.
court without the express a pproval of the Enforcement Operations.
United States Attorney or pertinent Assistant
Attorney General. In addition to obtaining
approval from the United States Attorney or
the pertinent Assistant Attorney judicial
authorization for the search warrant, the
federal prosecutor must consult with the
Criminal Division.
Consultation is required before contacting
any foreign or U.S. State Department official
in relation to extradition of a fugitive or the
obtaining of evidence in a criminal
investigation or prosecution. Prior approval is
required before attempting to do any act
outside the United States relating to a
crimi na I investigation or prosecution,
including contacting a witness by telephone
or mail.
Office of International Affairs,
Criminal Division.
Consultation is required to determine Office of International Affairs,
whether the United States has a Mutual Legal Criminal Division.
Assistance Treaty with the country from
which the evidence is sought.
RJN P. 227
9-13.525
9-13.525
9-13.526
9- 13.534
9-13.540
Written approval is required before issuing
any subpoena to persons or entities in the
United States for records located abroad.
Office of International Affairs,
Criminal Division.
Prior approval is required to serve a subpoena Office of International Affairs,
ad testificandum on an officer or attorney of a Criminal Division.
foreign bank or corporation who is
temporarily in United States when in
connection with the operation of the foreign
bank or corporation.
Notification is required before filing civil
forfeiture action pursuant to extraterritorial
jurisdictional provision contained in
28 U.s.c. 1355(b){2) against assets in foreign
country. Consultation is required before
taking steps to present a foreign government,
for enforcement or recognition, any civil or
crimina! forfeiture order entered in the
United States for property located within the
fa reign j u risd icti 0 n.
Approval is required for travel to a foreign
country in connection with criminal
investigations, trials, or other criminal law
enforcement related to official activity.
Office of International Affairs, which will
consult with Asset Forfeiture and Money
Laundering Section.
EOUSA approves with consent of Office
of International Affairs.
Consultation is required regarding execution Approval is required for an ex parte
of foreign legal assistance requests that have motion for tax returns and tax return
not been routed through Office of information under
International Affairs. 9-13.900. 26 U.S.c. 6103.,Attorney General,
Deputy Attorney General, Associate
Attorney General, any Assistant Attorney
General, any United States Attorney, any
special prosecutor appointed
under U.5.c. 593, or any attorney in
charge of a Criminal Division organized
crime strike force established pursuant
to 28 U.s.c. 510.
RJN P. 228
USAM
SECTION
9-15.210
9-15.800
9-16.010
9-16.015
9-16.030
9-16.110
9-19.220
QRAPPRQVAL
Prosecutors may not act on any foreign
extradition or provisional a rrest request that
comes from a source other than OIA.
Written approval is required before
prosecutors may agree, formally or
Office of International Affairs, Assistant
Attorney General, Criminal Division.
Criminal Division, Office of International
informally, to prevent or delay e)(tradition or Affairs
deportation of cooperating aliens.
Prior Approval is required for consent to a
plea of nolo contendere. See also USAM 9-
27.520.
Prior Approval is required for consent to an
Alford plea. See alsoUSAM 9-27.400.
Consultation with investigative agencies and
victims is necessary before entering into a
plea agreement.
Attorney General, Associate Attorney
General, Deputy Attorney General, or
Assistant Attorney General with
supervisory responsibility for the subject
matter. (If the Criminal Division has
supervisory responsibility, such requests
for approval should be sent to the Policy
and Statutory Enforcement Unit of the
Office of Enforcement Operations.)
Attorney General, Associate Attorney
General, Deputy Attorney General, or
Assistant Attorney General with
supervisory responsibility for the subject
matter.
Relevant Investigative Agencies, and any
known victim.
Prior approval is required for plea agreements Public Integrity Section,
with defendants who are candidates or
members of Congress or federal judges.
Prior Approval is required for search warrant
applications for documentary materials in
Criminal Division.
United States Attorney or supervising
DOJ attorney AND Deputy Assistant
possession of third parties, such as physicians, Attorney General for the division which
RJN P. 229
9-19.240
USAM
SECTION
9-21.050
9-21. 200
9-21.400
attorneys, or clergymen. supervises the underlying offense being
investigated or prosecuted. With respect
to offenses supervised by the Criminal
Division, contact the Office of
Approval is needed before a warrant is sought Deputy Assistant Attorney General,
for seizure of any work product materials or
other documentary materials possessed by a
person reasonably believed to have a purpose
to disseminate to the public a newspaper,
book, broadcast, or other similar public
communications that are governed by Title I
of the Privacy Protection Act of 1980.
Enforcement Operations's Policy and
Statutory Enforcement Unit, and the
Computer Crime and Intellectual
Property Section.
OR APPROVAL
Prior Approval is required to use, for Special Operations Unit, Office of
investigative purposes, persons who are in
the custody of the USMS or BOP, or who are
under BOP supervision. This approval
requirement applies whether the individual is
sentenced or unsentenced, but it does not
apply if the person in Federal custody has not
yet been arraigned, unless 72 hours have
passed.
Approval is required of applications for
Witness Security Program/Protection of
Witnesses.
Prior Approval is required for public
disclosure of a witness's pending or actual
Enforcement Operations, Criminal
Division.
Attorney General; Deputy Attorney
General; Associate Attorney General;
Assistant Attorney General, Civil Rights
Division (if a criminal civil rights matter is
involved); Assistant Attorney General,
Criminal Division; or the Director or
Senior the Office of Enforcement
Operations, Criminal Division.
Witness Security Unit of the Office of
RJN P. 230
9-21.800
9-23. 130
9-23.400
9-24.000
9-27.140
9-27.300
participation in the Witness Security Program. Division.
Prior approval is required to use any of the Witness Security Unit of the Office of
following persons as an informant: a currently Enforcement Operations, Criminal
protected witness, anyone relocated because Division.
of a witness's cooperation, or a former
protected witness.
Authorization is required before requesting
immunity.
Prior written approval is required to initiate
or recommend prosecution of an immunized
person for an offense or offenses first
disclosed in, or closely related to, immunized
testimony or information.
See 9-24.000 for procedures for requesting
special confinement conditions for BOP
inmates whose communications pose a
substantial risk of death or serious bodily
injury to persons.
Approval is required for any significant
modification of or departure from the
principles of Federal Prosecution, if the
modification or departure will be a matter of
policy or regular practice.
Approval is required not to file a sentencing
enhancement under 21 U.s.c. 851 (unless
the failure to file the sentencing
Criminal Division, through Office of
Enforcement Operations; (Antitrust AAG,
Civil Rights AAG, Civil AAG, ENRD AAG,
and Tax AAG may authorize compulsion
orders also, but must obtain Criminal
Division clearance.).
Attorney General, through the Assistant
Attorney General for the division that
issued the letter of authority for
requesting the original compulsion
order. Through the Office of
Division.
Attorney General through Office of
Division.
Assistant Attorney General, Deputy
Attorney General.
United States Attorney, Chief AUSA, or
senior supervisory criminal AUSA.
RJN P. 231
9-27.400
9-27.400
9-27.400
9-27.640
9-27.641
USAM
SECTION
enhancement would not affect the applicable
guideline range) .
Prior approval is required to dismiss readily
provable charges.
United States Attorney, or other
designated supervisory level attorney.
Prior approval is required to seek a departure United States Attorney, or other
other than one listed in Chapter 5, Part X of
the United States Sentencing Guidelines.
Prior approval to file a SKl.1 motion for
designated supervisory level attorney.
United States Attorney, Chief AUSA, or
downward departure based upon substantial senior supervisory criminal AUSA.
assistance.
Prior Approval is required to enter into a
nonprosecution agreement in exchange for
cooperation when : 1) consultation or
approval is required (by a statute or DOJ
policy) for a declination of prosecution or
dismissal of a charge with regard to which the
agreement is to be made; or, 2) the person is
a) a level federal, state, or local official, b) an
official or agent of a federal investigative or
law enforcement agency, or c) a person who
is, or likely to become, of major public
interest .
Prior written approval is required to enter
into multi-district (global) plea agreements.
Criminal Division.
The United States Attorney in each
affected district and/or Assistant
Attorney General, Criminal Division,
through the Policy and Statutory
Enforcement Unit (AAG approval is
needed only when there is a dispute
between the USA's involved or when DOJ
Criminal Division is involved in the case.).
TYPE & SCOPE OF ,REPORTING, CONSULTING CONTACT
OR APPROVAL
RJN P. 232
9-41.010
9-42.430
9-42.451
9-47.110
9-59.000
When a matter referred to the United States
Attorney pursuant to 18 U.s.c. 30S7(a}
(report of bankruptcy fraud) by a judge,
receiver or trustee is decli ned, 18 U.s.c.
Section 30S7{b) requires that the United
States Attorney report the facts of the case to
the Attorney General for his direction. This
statutory directive is satisfied by providing the
Fraud Section, Criminal Division, with a
concise summary ofthe facts ofthe case and
the reasons for declining it. Concurrence with
the decision to decline may be presumed if no
disagreement is expressed by the Fraud
Section.
Consultation is required regarding
prosecution or declination of a volunteer
corporation under the Dept. of Defense
Voluntary Disclosure Program.
Express approval is required before
prosecutors enter into any plea bargains
involving Health and Human Services (HHS)
programs that would attempt to include a
commitment to forgo or restrict
administrative remedies of HHS.
Prior approval is required to institute an
investigation or prosecution of cases involving
alleged violations of Sections 103, 104, and
104A, and related violations of Section 102, of
the Foreign Corrupt Practices Act (FCPA) of
1977 (15 U.s.c. (15 U.s.c. 78m(b), 78dd-l,
78dd-2, 78dd-3).
Prior approval is required to file charges
under the Economic Espionage Act,
18 U.S.c. 1831
Attorney General through Fraud Section,
Criminal Division.
Federal Procurement Fraud Unit of the
Fraud Section, Criminal Division.
Health and Human Services.
Assistant Attorney through the
Counterespionage Section of the
National Security Division.
RJN P. 233
9-60.112
9-60.700
9-60.1200
9-63.135
9-63.181
Consultation is required before making a
prosecutive determination involving possible
violations of the peonage or involuntary
servitude statutes.
Consultation is required before initiating
prosecution relating to a hostage taking
occurring withi nUn ited States. Approval is
required if the hostage taking occurred
outside the United States.
Consultation is required before instituting
grand jury proceedings, filing an information,
or seeking an indictment of a violation of 18
u.s.c. 231-233, 2101, 2102 (civil
disturbances and riots).
Civil Rights Division, Criminal Section.
National Security Division,
Co u nte rte rro rism Secti on,
Air Piracy within the special aircraft Counterterrorism Section,
jurisdiction of the United States: Consultation National Security Division.
is required before dismissing, in whole or in
part, an indictment, information, or complaint
containing air piracy charges or entering into
any agreement to forego an air piracy
prosecution that occurred within the special
aircraft ju risdiction of the United States.
49 U.S.c. 46502(a) in whole or in part, an
indictment, information, or complaint
containing air piracy charges or entering into
any agreement to forego an air piracy
prosecution that occurred within the special
aircraft ju risdiction of the United States. 49
U.s.c. 46502{a).
Air Piracy outside the special aircraft
jurisdiction of the United States: Approval is
required to initiate a criminal investigation,
commence grand jury proceedings, file an
information or complaint, or seek the return
of an indictment in matters involving overseas
terrorism, including air piracy that occurs
Counterterrorism Section,
RJN P. 234
9-63.221
9-65.110
9-65.200
9-65.200
9-65.700
9-65.811
outside the special aircraft jurisdiction of the
United States. Consultation is required before
dismissing, in whole or in part, an indictment,
information, or complaint containing air
piracy charges Or entering into any agreement
to forego an air piracy prosecution that
occurred outside the special aircraft
jurisdiction of the United States.
Prior approval is required for indictments
alleging a violation of 18 USc. 32(b)
(Aircraft Sa botage).
T elephon ic notification is required
immediately upon the initiation of any
investigation under 18 U.5. C. 1751.
Prosecutors are encouraged to consult when
in doubt of the prosecutive merit of a case
when relating to the security of the persons
protected by 18 USc. 871 (President, Vice-
President, etc).
Prior approval is required to dismiss
complaints under 18 USc. 871, when the
defendant is in custody under the Mental
Incompetency Statutes. In all other 871
cases, consultation is required prior to
dismissing a count involving, or entering into
any sentence commitment or other case
settlement.
Criminal Division.
Notification is required immediately upon the Conterterrorism Section,
initiation of an investigation under
18 USc. 351.
Notification is required prior to arrest or
indictment of members of Taiwan's
Coordination Council for North American
Criminal Division.
RJN P. 235
9-69.200
9-69.200
9-69.460
USAM
SECTION
9-72.100
9-73.801
9-75.010
Affairs (CCNAA).
Prior approval is required for investigations or Fraud Section, Criminal Division.
prosecutions of perjury before Congress and
contempt of Congress. See alsoUSAM 9-
90.550. (additional a pprova I requirement
regarding contempt of Congress relating to
national security).
Consultation is required before prosecuting
an individual for perjury committed during a
trial that resulted in acquittal.
Criminal Division through the Section
having supervisory responsibility for the
original offense charged.
Written approval is required before initiating Attorney General, Deputy Attorney
a prosecution for a violation of
18 U.s.c. 1073 (Flight to Avoid Prosecution,
Custody, Confinement, or Giving Testimony).
General, Associate Attorney General, or
Assistant Attorney General, through
Office of Enforcement Operations.
OR APPROVAL
Approval is required of applications for S
nonimmigrant visa classification.
Prior consultation is required to institute
proceedings to revoke naturalization under
8 USc. 1451.
CEOS and the Organized Crime and Gang
Section jointly authorize RICO prosecutions
that involve a predicate offense of obscenity,
sexual exploitation of ch ildren or the
transportation of children for illegal sexual
activities. See also USAM chapter 9-110.
Enforcement Operations, and the
Department of Homeland Security.
Office of Immigration Litigation, Civil
Division.
Child Exploitation and Obscenity Section;
Organized Crime and Gang Section.
RJN P. 236
9-75.030
9-75.030
9-75.100
9-75.110
Prior to initiating any activity in a district
related to an investigation or prosecution,
CEOS shall notify the United States Attorney
for that District. If the United States Attorney
objects to CEOS initiating the activity, the
matter shall be resolved by the Deputy
Attorney General. USAOs shall inform CEOS of
all significant investigations and cases being
prosecuted in the district as well as all
significant judicial decisions issued in such
cases.
Child Exploitation and Obscenity Section;
Organized Crime and Gang Section.
Notify CEOS re criminal investigations of sex Child Exploitation and Obscenity
trafficking of minors under 18 U.s.c. 1591. Sections, Criminal Division.
See USAM 8-3.120.
In cases in which the target conducts business Child Exploitation and Obscenity Section,
or commits the charged crimes in more than
one district, USAOs shall notify CEOS prior to
instituting charges against, or entering into a
plea agreement with, the target. In cases
where there are multiple targets who may be
located in different districts, the USAO shall
notify CEOS and the Child Exploitation and
Obscenity Coordinator in the other districts
prior to instituting charges against a target.
This notification should occur as early in the
investigative stage as possible to permit early
resolution of venue issues, if any.
CEOS shall be consulted during the
Criminal Division.
Child Exploitation and Obscenity Section,
development of a nationwide investigation Criminal Division.
(i.e., an investigation likely to have an impact
in all or most of the districts) that will be
supervised by a USAO attorney. The
supervising attorney, whether from CEOS or
USAO, shall notify all United States Attorneys
of the nationwide investigation prior to its
implementation. The supervising attorney
conducting a nationwide investigation shall
RJN P. 237
9-76.110
9-79.100
9-79.400
9-79.410
9-79.420
9-85.200
notify the Child Exploitation and Obscenity
Coordinator in each district where a potential
defendant is located as soon as that
information is developed, and keep CEOS and
the involved Coordinators apprised as to the
progress of the investigation.
Consultation is required regarding settlement Federal Aviation Administration.
proposals under the Federal Aviation Act of
1958.
Consultation is required before prosecuting
persons for violations of 18 U.s.c. 2421 et
seq., other than those engaged in commercial
prostitution enterprises such as panderers,
operators of houses of prostitution, or call-girl
operations, and those acting for or in
association with such persons.
Notification is required before declining to
Child Exploitation and Obscenity Section,
Criminal Division.
prosecute failure to register with the Selective Office of Enforcement Operations,
Service. 18 U.s.c. App. 462 Consultation is Criminal Division.
required prior to dismissing a count involving,
or entering into any sentence commitment or
other case settlement in a case involving
failure to register with the Selective Service.
50 U.s.c. App. 462.
Consultation is required before instituting
or seeking an indictment for the offense of
desecration of the flag.
Consultation is required before instituting Public Integrity Section,
grand jury proceedings, filing an information, Criminal Division.
or seeking an indictment of disclosure
violations under 18 U.s.c. 7213.
Prior approval (certification) is required for a Attorney General or Deputy Attorney
RJN P. 238
9-85.210
9-85.220
prosecution of an offense under
18 U.s.c. 245. Consultation is required
before an investigation beyond a preliminary
inquiry is requested, and before instituting
grand jury proceedings based upon a federally
protected activity identified in
General, through the Public Integrity
Section, Criminal Division or the Criminal
Section of the Civil Rights Division.
18 U.S.c. 245.
Consultation is required in all federal criminal Public Integrity Section,
matters that focus on violations of federal or Criminal Division.
state campaign financing laws, federal
patronage crimes, and corruption of the
electoral process. These offenses include, but
are not limited to, offenses described in:
18 U.S.c. 241 to 242, 245, 592 to 611; 42
U.s.c. 1973i(c), 1973i(e), and 1973gg-10;
2 U.s.c. 431 to 455; and prosecutive
theories that focus on corruption of electoral
processes or campaign fund raising violations
using 18 U.S.c. 1341, 1343, and 1346;
18 U.S,c. 1952; 18 U.5.c. 1956 and 1957.
With regard to federal campaign matters
arising under 2 U.s.c. 431-455,
consultation is required before any inquiry is
requested or conducted. With regard to all
other election-related investigations (other
than those described in9-85.200 (Federally
Protected Activities)), consultation is required
before an investigation beyond a preliminary
inquiry is requested, and before instituting
or seeking an indictment. See also USAM 9-
90.020, which requires consultation with the
Internal Security Section before prosecuting
2 U.s.c. 441e offenses.
or seeking an indictment for violations of 18
U.5.c. 210 and 211 {Purchase and Sale of
RJN P. 239
9-85.230
9-85.240
USAM
SECTION
9-90.020
9-90. 020
9-90.020
Public Office).
or seeking an indictment for violations of 18
U.s.c. 1913 (Lobbying with Appropriated
Funds).
All allegations received by United States Public Integrity Section,
Attorneys concerning any individuals covered Criminal Division.
by the Ethics in Government Act
(28 U.s.c. 591) must be referred to the
Department.
OR APPROVAL
Express prior approval is required for Assistant Attorney General,
prosecution of offenses involving national
security. Consultation is required before an
arrest is made, search warrant is obtained,
grand jury investigation is commenced,
immunity is offered, indictment is presented,
a prosecution is declined or an adverse ruling
or decision is appealed in cases affecting
national security. The following statutes are
encompassed by these prior approval and
consultation requirements when they relate
to national security.
1) 2 U.s.c. 192, Contempt of Congress
Related to National Security. See also 9-
69.200 regarding other contempts of
Congress.
National Security Division, through
Counterespionage Section.
2) 2 U.S.c. 261 et seq. Federal Regulation of Assistant Attorney General,
Lobbying Act. National Security Division, through
RJN P. 240
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
3) 8 U.S.c. 1185(b) and 18 U.S.c. 1542-
1544, Travel Controls of Citizens.
4) 18 U.s.c. 219 et seq., Officers and Assistant Attorney General,
employees of United States Acting as Foreign National Security Division, through
Agents; and Conflicts of Interest.
5) 18 U.S.c. 791 et seq., Espionage;
Unauthorized Disclosure of Classified
Information.
6) 18 U.s.c. 952 et seq., Neutrality Laws.
7) 18 U.s.c. 100l, False Statements
Co u nte respi 0 nage Secti 0 n.
concerning membership in organizations National Security Division, through
advocating violent overthrow of government. Counterespionage Section.
8) 18 U.S.c. 1030(a)(1), Computer
Espionage.
9) 18 U.s.c. 1071 et seq., Harboring.
10) 18 U.S.c. 1073, Flight to Avoid
Prosecution or Giving Testimony.
11) 18 U.S.c. 1501 et seq., Obstruction of
Justice.
12) 18 U.s.c. 1542 et seq., Passport
Violations Related to National Security.
Criminal Division, through Organized
Crime and Gang Section.
Criminal Division, through Human Rights
RJN P. 241
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
13) 18 U.s.c. 2151 et seq., Sabotage.
and Special Prosecutions Section (HRSP).
Assistant Attorney Genera!,
14) 18 U.s.c. 2381 et seq., Treason, Sedition Assistant Attorney General,
and Subversive Activities.
15) 18 U.s.c. 2383, Inciting, Assisting or
Engaging in Rebellion or Insurrection.
16) 18 U.s.c. 2385, Smith Act.
17) 18 USc. 2386, Voorhis Act.
18) 18 usc. 3150, Jumping Bail.
19) 22 U.S.c. 611 et seq, Foreign Agents
Registration Act.
20) 42 U,S.c. 2273 et seq, Atomic Energy
Act .
21) 50 U.S.c. 783 et seq, Communication of Assistant Attorney General,
Classified Information by Government Officer National Security Division, through
or Employee. Counterespionage Section.
RJN p , 242
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.020
9-90.100
22) 50 U.s.c. 851-857, Registration of
persons who have knowledge and received
training in espionage.
23) 50 U.s.c. 421, Intelligence Identities
Protection Act.
24) 50 U .s.c. 1701 et seq, International
Emergency Economic Powers Act.
25) 50 U.s.c. 2401 et seq, Violations of the
Export Administration Arms Export Control
Act. 22 USc. 2778.
26) 50 U.s.c. App. 5(b), Trading with the
enemy.
Consultation is required in cases in which
classified information plays a role in the
prosecutive decision and for use of the
Classified Information Procedures Act
Consultation is required before initiating a
prosecution under 2 USc. 441e, 441e, National Security Division, through
Campaign Contributions by Foreign Nationals. Counterespionage Section, Registration
See also USAM 9-85.210, which requires Unit.
consultation with the Public Integrity Section
before initiating any investigation under this
section.
The USAO National Security Coordinator must Attorney General, Deputy Attorney
notify the Internal Security Section when
national security issues arise in the course of
prosecutions of offenses not related to the
national security.
General, Assistant Attorney General,
National Security Division, through Chief,
RJN P. 243
9-90.210
9-90.230
9-90.240
9-90.240
9-90.240
USAM
SECTION
9-105.300
9-105.300
Approval is required to request to search an United States Attorney or a senior
Intelligence Community (Ie) file in connection designee AND the Counterespionage
with a National Securityinvestigation or Section, National Security Division.
p rosecut io n.
Prior to any grand jury appearance by a target Relevant Intelligence Agency through the
who is an intelligence officer, asset, or other
employee of the intelligence community,
consultation with the intelligence agency
whose information may be disclosed by the
target's testimony is required.
Notification is required if a district court or
appellate court will not accept a substitution
proposed by the government under ClPA
section 6(c).
Approval is required to file an interlocutory
appeal under section 7{a) of CIPA.
Notification is required if it becomes likely
that an intelligence agency employee will
testify in any criminal case.
Counterespionage Section,
OR APPROVAL
Prior approval is required before Asset Forfeiture and Money Laundering
commencement of investigation where
jurisdiction to prosecute is based solely on
extraterritorial jurisdiction provisions of
18 U.s.c. 1956 and 1957.
Prior approval is required to prosecute under Assistant Attorney General, Tax Division.
18 U.s.c. 1956{a){1)(A)(ii) when the sole or
principal purpose ofthe financial transaction
was to evade the payment of taxes. See
also 9-105.750.
RJN P. 244
9-105.300
9-105.300
9-105. 310
9-105.320
9-105.330
9-105.330
9-105.330
Crimi nal
Resource
Prior approval is required to prosecute
attorneys under 18 U.s.c. 1956 or 1957
when the financial transaction is one involving
attorneys' fees. See also 9-105.600 et seq.
Prior approval is required before filing of
criminal indictment or complaint in which a
financial institution would be named as
defendant or unindicted co-conspirator.
Asset Forfeiture and Money Laundering
Notification (by sending a copy of indictment Asset Forfeiture and Money Laundering
or complaint) is required of all criminal cases Section, Criminal Division.
that include charges under 18 u.s.c. 1956 or
1957, and all forfeiture cases involving
18 U.s.c. 981 or 982. Following
sentencing, prosecutors should provide
notification regarding the disposition of the
case.
Notification is required of all convictions of
financial institutions, or a ny officer, director,
or employee of a financial institution, for the
following offenses: 18 U.S.c. 1957 or 1960,
or 31 U.S.c. 5322.
Consultation is required before filing a civil or Asset Forfeiture and Money Laundering
criminal forfeiture action when forfeiture of a Section, Criminal Division.
business is sought under the theory that
business facilitated money laundering
offenses.
Consultation is required before filing civil
action under 1956(b) against business
entity.
Consultation is required before filing an
indictment or complaint when conduct to be Section, Criminal Division.
charged as "specified unlawful activity" under
18 U.s.c. 1956 and 1957 consists primarily
RJN P. 245
Manual 2187
9-105.330
Cri minal
Resource
Manual 2187
9-105.330
9-105.750
of one or more financial offenses or fraud
offenses, and when the financial and money
laundering offenses are so closely connected
that there is no clear delineation between the
underlying financial crime and the money
laundering offense. Such prosecutions must
be authorized by the district's United States
Attorney and must be reported to AFMlS.
Consultation is required before filing an Asset Forfeiture and Money Laundering
indictment or complaint when the conduct to Section, Criminal Division.
be charged as money laundering under 18
U.s.c. 1956(a)(1)(A)(i) consists of a financial
transaction alleged to have promoted the
"specified unlawful activity" that generated
the proceeds, and where both money
laundering and the "specified unlawful
activity" itself are being charged as offenses.
Such prosecutions must be authorized by the
district's United States Attorney and must be
reported to AFMLS.
Consultation is required prior to filing an Asset Forfeiture and Money Laundering
indictment or complaint when the conduct to Section, Criminal Division.
be charged as money laundering under
1956 or 1957, or when the basis for a
forfeitu re action under 981 consists of the
deposit of proceeds of specified unlawful
activity into a domestic financial institution
account that is clea rly identifia ble as
belonging to the person(s) who committed
the specified unlawful activity.
Approval for use of specific intent language
set forth in 18 U.S.c. 1956(a)(1)(A)(ii) in
proposed indictment when 1) indictment
contains charges for which Tax Division
authorization is required and 2) the intentto
engage in conduct constituting a violation of
26 U.s.c. 7201 or 26 U.s.c. 7206 is the
Assistant Attorney General, Criminal
Section, Tax Division.
RJN P. 246
9-110.101
Cri minal
Resource
Manual 2084
9-110.801
9-111.124
9-111. 600
9-112.110
9-112.240
sole or principal purpose of the financial
transaction which is the subject of the money
laundering count. See also 9-105.300.
Prior approval is required to file a RICO
criminal indictment or information or civil
complaint, or to issue a civil investigative
demand.
Criminal Division.
Prior approval is required to file a motion for Organized Crime and Gang Section,
a restraining order in a RICO prosecution. Criminal Division.
Prior approval is required before any criminal Organized Crime and Gang Section,
prosecution under 18 U.s.c. 1959 may be Criminal Division.
initiated by indictment or information.
The USAO must consult with the Asset
Forfeiture and Money Laundering Section
prior to filing an indictment, information, or
complaint in any forfeiture action against,
seeking the seizure of, or moving to restrain
an ongoing business.
Approval is required to retain cash in the
amount of $5,000 or more for evidentiary
purposes.
Chief, Asset Forfeiture and Money
Laundering Section, Criminal Division.
Approval is required for the judicial forfeiture Asset Forfeiture and Money Laundering
of property that would otherwise be forfeited Section, Criminal Division.
administratively in cases that are not covered
by the exception for compelling prosecutorial
considerations or the exception for
aggregation of seized property.
Prior approval is required for a pre-indictment Asset Forfeiture and Money Laundering
ex parte application for a temporary Section, Criminal Division.
restrai n ing order in crimi na I forfeiture cases.
RJN P. 247
9-113.103
9-113.107
9-113.200
9-113.200
9-113.800
9-116. 170
9-116.500
Consultation is required before entering into Seizing Agency and u.s. Marshals
settlements or plea agreements that return Service.
property that is the subject of administrative
forfeiture proceedings.
Approval is required for any settlement which Asset Forfeiture and Money Laundering
provides for unsecured partial payments.
The Chief of the Asset Forfeiture and Money
Laundering Section has authority to approve
any forfeiture settlement where:
(1) the amount involved exceeds $500,000
but does not exceed $5 million, and the
amount to be released exceeds 15 percent of
the amount involved, unless the amount to be
released is more than $2 million; or
(2) the amount involved exceeds $5 million,
unless the amount to be released exceeds 15
percent of the amou nt involved and is more
than $2 million.
The Deputy Attorney General must approve
any forfeiture settlement where the amount
to be released exceeds 15 percent of the
amount involved and is more than $2 million.
Written approval is required of any
agreement to pay liens and mortgages to a
lienholder prior to forfeiture under the
Expedited Forfeiture Settlement Policy for
Mortgage Holders.
Approval is required to adopt state or local
seizures directly for judicial forfeiture.
Section, Criminal Division, in
consultation with the u.S. Marshals
Service.
Approval: Asset Forfeiture and Money
Approval: Deputy Attorney General.
Approval is required to transfer real property Deputy Attorney General or designee,
RJ N P. 248
9-116.400
9-117.210
Chapter 9-
118.000
and 9-116.210
Chapt er 9-
118. 000
9-118.400
9-118.400
to state or local agencies for fu rther transfer
to other government agencies or non-profit
agencies for use in the Weed and Seed
Program.
Prior approval is required to share
internationa lIy.
Prior approval is required to use funds from
the Assets Forfeiture Fund to pay Equal
Access to Justice (EAJA) awards arising from
actions related to the forfeiture of property.
Approval is required of equitable sharing in
the following circumstances: (1) in cases
involving $1 million or more in forfeited
assets; (2) in multi-district cases; and (3) in
cases involving real property transfers to a
state or local agency for law enforcement
related use.
Approval is required for allocations from the
Assets Forfeiture Fund to program
participants for statutorily designated uses.
Approval is required of a seizing agency's
decision to place property into the agency's
own official use, if the liens on the property
equal $25,000 or one-third of the value,
whichever is greater.
Approval is requi red of the U.s. Marshals
Service's decision to place personal property
into official use by non-participating federal
agencies, if: (1) the property is $25,000 or
more in value; or (2) liens on the property
equal or exceed $25,000, or one-third of the
value, whichever is greater.
through Asset Forfeiture and Money
Laundering Section.
Attorney General and Secretary of State
through the Asset Forfeiture and Money
Laundering Section, Crimina! Division.
Deputy Attorney General or deSignee.
Deputy Attorney General or designee.
RJN P. 249
9-118.400
9-119.010 and
Chapter 9-
120.000
9-119.010 and
Chapter 9-
120.000
9-119.010
9-119.010
9-119. 010
Approval is required for the placement of real Attorney General.
property into official use by any federal
agency.
Prior approval to Institute a criminal or civil
forfeitu re proceeding to forfeit a nasset
transferred to an attorney as fees for legal
services.
Prior approval to enter into a formal or
informal, written or oral agreement to
exempt an asset transferred to an attorney as
fees for legal services from forfeiture,
including the exemption of certain assets to
pay attorneys' fees which are restrained as
substitute assets.
The USAO must notify the Asset Forfeiture
Criminal Division, through the Asset
Forfeiture and Money Laundering
Section.
Criminal Division, through the Asset
Forfeiture and Money Laundering
Section.
and Money Laundering Section when it learns Section, Criminal Division.
(or the U.S. Marshals Service learns) that a
restrained or seized business is losing money,
has insufficient equity, or will be sold at a
loss.
The Asset Forfeiture and Money Laundering
Section must give approval before serving a
Section, with concurrence from Office of
restraining order, seizure warrant, or warrant International Affairs, Criminal Division.
of arrest on a correspondent bank account
under 18 U.s.c. 981{k) (the chief of the
Section will get concurrence from the director
of the Office of International Affairs).
The Office of International Affairs must give
written approval before the USAO may issue
summonses or subpoenas to foreign banks
that maintain accounts with correspondent
banks in the United States to obtain records.
Office of International Affairs, Criminal
Division.
RJN P. 250
USAM
SECTION
9-131.030
9-138.030
9-138.040
9-139.103
QRAPPRQVAL
Consultation is required prior to criminal
prosecution by filing an information or
complaint, or seeking an indictment under
18 U.s.c. 1951 (Hobbs Act) in cases
involving labor-management disputes.
Consultation is required prior to instituting
Labor Management Unit,
Criminal Division.
grand jury proceedings, filing an information, Labor Management Unit,
or seeking an indictment under either Criminal Division.
29 U.s.c. 504 or 29 U.s.c. 1111.
Consultation is recom mended with respect to
convicted ind ividua Is who seek relief from the
employment disabilities at 29 U.S.c. 504
(labor union positions and labor relations
consultants) and 29 U.S.c. 1111 (employee
pension and welfare benefit plan positions
and consultants) which are imposed on
individuals by operation of statute following
sentencing.
Consultation is required prior to initiating
prosecution under the Railway l.<lbor Act.
Consultation is recommended at the
investigative stage because of the policy
Ii mit i ng p rosecu tio n.
Criminal Division.
Criminal Division.
[updated April 2013]
RJN P. 251
EXHIBIT 29
RJN P. 252
U.S.A.M. 1-13.000
Urgent Reports
1-13.100 Urgent Reports-Generally
1-13.110 "Significant Investigations and Litigation"
1-13.120 "Major Development"
1-13.130 Reports of Other Matters
1-13.140 Urgent Report Handling and Format
1-13.100 Urgent Reports-Generally
United States Attorneys' offices and Department litigating divisions must submit Urgent Reports to inform
Department leadership, including the Attorney General and the Deputy Attorney General, of (1) major
developments in significant investigations and litigation, (2) law enforcement emergencies, and (3) events
affecting the Department that are likely to generate national media or Congressional attention. Urgent Reports
should be brief but contain at least the following information:
A brief description of the general nature of the matter, emergency, or event, including possible crimes
committed or claims involved;
A brief description of the major development being reported;
Potential targets, subjects, and parties in the matter;
The investigative and/or client agencies involved; and
The date of any prior, related Urgent Report, if any.
USAOs and Department litigating divisions should submit Urgent Reports at least three days in advance of
anticipated developments or events to provide Department leadership with appropriate notice. In the event of
unanticipated events and emergencies, USAOs and Department litigating divisions should submit Urgent
Reportswithin 24 hours. absent exigent circumstances.
RJN P. 253
Submission of an Urgent Report is required even where a USAO has given oral notice to EOUSA or oral or
written notice to other Department components or leadership. In matters where the USAO and a Department
litigating division are jointly litigating the matter, the offices should coordinate to ensure preparation and
proper dissemination of a single Urgent Report to Department leadership.
In all cases, access to Urgent Reports is strictly controlled on a limited official use basis. Only those officials
having a need to know will receive access to Urgent Reports. Nevertheless, Urgent Reports should be brief and
avoid unnecessary detail. Please keep in mind whether the information in the Urgent Report is discoverable or
producible in any context.
This reporting requirement is a notice requirement only and should not interrupt, alter, or delay the normal
conduct and pursuit of any matter or case. Moreover, these procedures do not satisfy other applicable notice,
consultation, or approval requirements that may apply.
[adapted in September 2011 from material that formerly appeared in USAM Chapter 3-18.000]
1-13.110 "Significant Investigations and Litigation"
USAOs a nd Department litigating divisions shou Id consider the existence of the following criteria as illustrative
of the types of significant investigations and litigation that must be reported:
National or statewide public official, public entity, or prominent public figure as a party, subject, target,
or significant witness;
High likelihood of coverage in national news media;
High likelihood of Congressional interest;
Extraordinarily large monetary liability, loss amount, or recovery at issue;
Significant implications on foreign relations; and
Novel theory of law likely to implicate significant Department interests.
1-13.120 "Major Development"
Major developments in significant investigations and litigation may include the following events:
Initiation of investigation;
Filing of criminal charges (complaint, information, or indictment);
RJN P. 254
Arrest of defendants;
Filing of a civil complaint by or against the United States;
Plea, trial, verdict, or settlement; and
Sentencing.
Please note that the list above is not exhaustive and that major developments can include other steps between
the initiation and conclusion of a matter or case. For example, a USAO or Department litigating division should
report the following events when the events are likely to receive national media coverage or Congressional
attention:
Execution of a search warrant;
Interview of a significant witness;
Appearance of a significant witness before a grand jury or at a deposition;
Significant motions and adverse rulings; and
Significant post-conviction or post judgment litigation, i ncl uding appeals.
1-13.130 Reports of Other Matters
USAOs and Department litigating divisions must submit Urgent Reports regarding any information or event
falling within the circumstances set forth below:
Law enforcement emergencies-e.g., riots, taking of hostages, hijacking, kidnapping, prison escapes
with attendant violence, threats or actual serious bodily injury Or harm inflicted on or caused by
Department personnel;
Security incidents, as provided in USAM 3-15.160;
Non-frivolous allegations of serious misconduct by the Department or a specific Department employee,
including criticism by a member of Congress, a court, or other senior government officials of the
Department's handling of a particular matter;
Major conflicts with other government agencies or departments;
Issues or events that may be of major interest to the news media, Congress, or the President; and
Other information so important as to warrant the personal attention of the Attorney General or the
RJN P. 255
Deputy Attorney General within 24 hours.
See also USAM Chapter 1-14.000.
[updated August 2012]
1-13.140 Urgent Report Handling and Format
USAOs and Department litigating divisions should submit Urgent Reports in memo format to the Attorney
General and the Deputy Attorney General and include the following:
Name and contact information of the United States Attorney or Assistant Attorney General submitting
the Urgent Report;
Date of the Urgent Report;
Classification level: Urgent Reports that contain classified material must be sent through appropriate
secure communications;
Contact Person: Name and contact information of person with complete knowledge of the facts
reported;
Synopsis: A one paragraph or shorter summary of the facts; and
Discussion: A concise recitation of the development giving rise to the need for the Urgent Report,
including whether media is awa re of the su bject matter ofthe report.
Department I itigating divisions shou Id submit Urgent Reports by email to "Urgent Reports Litigating Divisions."
USAOs must submit Urgent Reports to EOUSA through the USA-Report system.
RJN P. 256
EXHIBIT 30
RJN P. 257
Congressional
Research
Service--------------------
State Legalization of Recreational Marijuana:
Selected Legal Issues
Todd Garvey
Legislative Attorney
Brian T. Yeh
AprilS, 2013
Congressional Research Service
7-5700
www.crs.gov
R43034
CRS Report for Congress--------------------
Prepared/or Members and COlllmillees o/Congress
RJN P. 258
Stn te Legll/izntioll of Recreatiollal Man;uallfl.: A Legal Allallfs;s
Summary
Maya state authorize the use of marijuana for recreational purposes even if such use is forbidden
by federal law? This novel and unresolved legal question has vexed judges, politicians, and legal
scholars, and it has also generated considerable public debate among supporters and opponents of
"legalizing" the recreational use of marijuana.
Under the federal Controlled Substances Act (CSA), the cultivation, distribution, and possession
of marijuana are prohibited for any reason other than to engage in federally approved research.
Yet 18 states and the District of Columbia currently exempt qualified users of medicinal
marijuana from penalties imposed under state law. In addition, Colorado and Washington recently
became the first states to legalize, regulate, and tax small amOWlts of marijuana for nonmedicinal
(so-called "recreational") use by individuals over the age of 21. Thus, the current legal status of
marijuana appears to be both contradictory and in a state of flux: as a matter of federal law,
activities related to marijuana are generally prohibited and punishable by criminal penalties,
whereas at the state level, certain marijuana usage is increasingly being permitted. Individuals
and businesses engaging in marijuana-related activities that are authorized by state law
nonetheless remain subject to federal criminal prosecution or other consequences under federal
law.
The Colorado and Washington laws that legalize, regulate, and tax an activity the federal
government expressly prohibits appear to be logically inconsistent with established federal policy
toward marijuana, and are therefore likely subject to a legal challenge Wlder the constitutional
doctrine of preemption. This doctrine generally prevents states from enacting laws that are
inconsistent with federal law. Under thc Suprcmacy Clause, statc laws that conflict with fcderal
law are generally preempted and therefore void and without effect. Yet Congress intended that the
CSA would not displace all state laws associated with controlled substances, as it wanted to
preserve a role for the states in regulating controlled substances. States thus remain free to pass
laws relating to marijuana, or any other controlled substance, so long as they do not create a
"positive conflict" with federal law, such that the two laws "cannot consistently stand together."
Tills report summarizes the Washington and Colorado marijuana legalization laws and evaluates
whether, or the extent to which, they may be preempted by the CSA or by international
agreements. It also highlights potential responses to these recent legalization initiatives by the
U.S. Department of Justice (DOl) and identifies other noncriminal consequences that m a r ~ i u a n a
users may face under federal law. Finally, the report closes with a description of legislative
proposals introduced in the 1 1 3
th
Congress relating to the treatment of marijuana under federal
law, including H.R. 499 (Ending Federal Marijuana Prohibition Act of20 13); H.R. 501
(Marijuana Tax Equity Act of20 13); H.R. 689 (States' Medical Marijuana Patient Protection
Act); H.R. 710 (Truth in Trials Act); H.R. 784 (States' Medical Marijuana Property Rights
Protection Act); and H.R. 964 (Respect States' and Citizens' Rights Act of2013).
COllg"essiolltll Research Service
RJN P. 259
Contents
Introduction .......................................................... , ........................................................................... I
Washington Initiative 502 ................................................................................................................ 2
Colorado Amendment 64 ..................................... , ................................. ...... .. ...... .. ...... ... ..... .... ........ 3
Final Report of the Amendment 64 Implementation Task Force ......... .. ....... .. ...... .... .... .... ......... 4
Federal Law ......................................................... , ........................................................................... 4
Federal Preemption of State Law ........................................ .. ...... .. ....... ... ..... ... ..... ... ..... .... .... .... ........ 6
Preemption Under the Controlled Substances Act ..................................................................... 7
Application of Preemption Principles to Washington and Colorado Legalization
Measures ................................................................................................................................. 9
Legalization ................................ .. ...... .. ......... ... ...... .. ...... .. ...... .. ... ... .. ...... .... .... .... .... .... ... .. .. 10
Regulation and Licensing .......... .. ....... .. ......... .. .. ..... .. ...... .. ...... .. ... ... .. .. ..... .. ...... .. ...... .. ... ..... 12
Taxation ............................................................................................................................. 17
Are the Wasrungton and Colorado Laws Preempted by International Law? ...................... .... ....... 18
Potential DO] Responses to Derer Marijuana Activities and Enforce Federal Law ...................... 21
Criminal Prosecutions .......................................................................................... ..... ... .... ....... 21
Forfeiture ....................................................... , ......................................................................... 23
Civil Lawsuit ........................................................ .. ...... .. ...... .. ...... .... ..... .. ...... .. ...... .. ...... .. .. ...... 24
Additional Legal Consequences of Marijuana Use .... .. ...... .. ...... .. ...... .. ... .... .. ...... .. .. .... .. .. .... .... ...... 24
Congressional Response ....... .... .... .... ... .. ... ...... .. ......... .. .. ..... .. ...... .. ...... .. ... ... .. ...... .... .... .... .... .... ....... 26
Contacts
Author Contact Information ........................................................................................................... 29
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Introduction
Supreme Court Justice Louis Brandeis famously praised the division of sovereign powers
included within America's constitutional structure for its capacity to encourage states to "serve as
a laboratory; and try novel social and economic experiments without risk to the rest of the
country. "I This legislative freedom is constrained, however, by various constitutional restrictions
including the Supremacy Clause, which provides that federal law "shall be the supreme Law of
the Land."2 Pursuant to this established principle of federal legal preeminence, any state law that
conflicts with federal law is generally considered preempted and therefore void. Although simple
in theory, the task of detennining whether a state law is "in conflict" with federal law can be
incredibly complex in practice.
The ongoing national debate over marijuana provides a clear example of the confusion associated
with the states' ability to pursue policies that deviate from those advanced by the federal
government. In addition to the 18 states and the District of Columbia that currently exempt
qualified users of medicinal marijuana
3
from penalties imposed under state law, Colorado and
Washington recently became the first states to legalize,4 regulate, and tax small amounts of
marijuana for personal (i.e., nonmedicinal) use by individuals over the age of 2 1.
5
These broad
legalization initiatives stand in stark contrast to federal law, which makes the cultivation,
distribution, or possession of any amount of marijuana-for any purpose other than bona fide,
federally approved scientific research-a criminal offense.
6
Therefore, the possession, cultivation, or distribution of marijuana remains a federal crime within
Colorado, Washington, and every other state. As a result, individuals who grow, possess, use, sell,
transport, or distribute marijuana, even when done in a manner consistcnt with state law or
pursuant to a state-issued license, are nonetheless in violation of the federal Controlled
Substances Act (CSA) and remain subject to federal criminal prosecution or other consequences
under federal law. Given the federal government's continued ability to enforce its own
prohibition, it cannot be said that the Washington and Colorado laws create a right to use
marijuana. Nor does compliance with state law provide a defense to a prosecution brought under
federallaw.
7
However, the extent to which federal authorities will actually seek to prosecute
I New SiaM Ice Co. 1'. Liebmann, 285 U. S. 262,311 (1932) (Brandeis, L dissenting).
2 U.S. CONST., Art. VI, cI. 2.
J For a dlSclisslon of state medical manjuana laws, see CRS Report R42398, lvJedical Mnrijunnn: The Supremacy
Clause, Federalism, and the Inlelvlay Berween Stale and Federal Laws, by Todd Garvey.
J It is important to distinguish between two common terms that have been used to describe state marijuana laws:
legalization and decriminalization. For Plll]Joses or this report, a state "legalizes" conduct when an individual who
engages inlhal conduct is not subject to any state penalty. A state decriminalizes conduct when criminal penalties are
removed, but civil pen allies remain. TIlis report characterizes the Washington aDd Colorado laws as legalization
initiattves because each state has removed all state-imposed penalties for qualified marijuana acllvities. The
legalization initiatives are to be distinguished from state marijuana decriminalizahon measures, like that of
Massachuse\ls, which remove criminal penalties jor possession of small amounts of marijuana, but retain civil
penalties. It is importanl to note, however, that the lerm legalization is ilselfmisleading, as a slale cannol fully
"legalize" conduct thaI constitutes a crime under federal law.
~ Reports suggest that Ihe number ofj urisdict ions Ihat have legalized either medicinal or recreational marijuana will
likely continue 10 grow. See, e.g., Tim Dickinson, 77le Next Seven Sinies To Legalize Pol, ROLLING STONE, December
18,2012.
621 U.S.c. 841(b); 21 U.S.c. 844(b).
7 See, e.g., Uniled States v. Stacy, 734 F. Supp. 2d 1074,1079 (S.D. Cal. 2010) ("(T]he faetthat an individual may nol
(continued ... )
COllg,'essiolltll Research Service 1
RJN P. 261
individuals who are engaged in marijuana-related activities in Colorado and Washington remains
uncertain. President Obama himself has suggested that prosecuting simple possession is not a
priority, while the Department of Justice (DO]) has said only that "growing, selling, or possessing
any amount of marijuana remains illegal under federallaw."s A fonnal response from the DO] is
expected imminently.9
Washington Initiative 502
Washington Initiative 502 legalizes marijuana possession by amending state law to provide that
the possession of small amounts of marijuana "is not a violation of this section, this chapter, or
any other provision of Washington law.,,10 Under the Initiative, individuals over the age of21 may
possess up to one ounce of dried marijuana, 16 ounces of marijuana infused product in solid fonn,
or 72 ounces of marijuana infused product in liquid form. I I However, marijuana must be used in
private, as it is unlawful to "open a package containing marijuana ... or consume marijuana ... in
. f h I bl ,,12
VIew 0 t e genera pu IC.
In addition to legalizing possession, the Initiative provides that the "possession, delivery,
distribution, and sale" by a validly licensed producer, processor, or retailer, in accordance with the
newly established regulatory scheme administered by the state Liquor Control Board (LCB),
"shall not be a criminal or civil offense under Wash.ington state law."n The Initiative establishes a
three-tiered production., processing, and retail licensing system that permits the state [0 retain
regulatory control over the commercial life cycle of marijuana. Qualified individuals must obtain
a producer's license [0 grow or cultivate marijuana, a processor's license to process, package, and
label the drug, or a retail license to seJi marijuana to the general public.
14
The Initiative
establishes various restrictions and requirements for obtaining the proper license and directs the
state LCB to adopt procedures for the issuance of such licenses by December I, 2013.
15
The LCB
is authorized to promulgate additional implementing regulations, including rules controlling the
total number of marijuana retailers in each county, labeling restrictions, security requirements for
marijuana facilities, and reasonable time, place, and manner advertising restrictions. \6 In
( ... continued)
be prosecuted under [state] law does not provide him or her with illUllunity under federa1law."); United States v.
Rosentbal, 454 F.3d 943 (9
1h
Cir. 2006) (holding that state medical marijuana law could not act as a shield to federal
prosecullon).
8 See Statement From U.S. Attorney's Office on Initiative 502, DOl Press Release, December S, 2012, available al
hllp://www.justice.gov/usao/waw/press/20 12IDecember/Statement.hlml; Devin Dwyer, Marijllana Not High Obama
Priority, ABC NEWS, December 14,2012, available nt http://abcnews.go.comiPolitics/OruS/president-obama-
marijuana -users-high-priori ty-drug- war / story?id= 1794678311. UV mt WE4 gp V.
9 SeR Josh Gerstein, Holder: Feds 10 SeT POI LegolizoTian Response "Reinliveiy Soon, "POLITICO, Febmmy 26, 2013,
01 http://www.politico.comlblogs/under -the-radar/20 13/021holder -f eds-lo-set -pot -legali:mtion-response-rela ti vely-
157895.html.
10 Washi.ngton Initiative 502 at 20, amending RCW 69.50.40[3 and 2003 c 53 s 334, al'ailable at hllP://SOs.wa.gov/
_assets/eleclions.iiniliatives/i502.pdf.
II Id. at 15.
12 Id. at 21.
lJ Id. at 4.
I. Td.
]5 Id. at 10.
16Id. 9-1 O.
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preparing to meet the December 1 deadline, the LCB has held eight public forums across the state
to obtain public input on draft regulations.
Under the Initiative, the state will also impose an excise tax of25% of the selling price on each
marijuana sale within the established distribution system.
17
The state excise tax will, therefore, be
imposed on tluee separate transactions: the sale of marijuana from producer to processor, from
processor to retailer, and from retailer to consumer. All collected taxes are deposited into the
Dedicated Marijuana Fund and distributed, mostly to social and health seIVices, as outlined in the
Initiative.
18
The Initiative also specifically provides that operation of a motor vehicle while under the
influence of marijuana remains a crime.
19
Colorado Amendment 64
Unlike the relatively specific Initiative 502, Colorado Amendment 64 provides only a general
framework for the legalization, regulation, and taxation of marijuana in Colorado-leaving
regulatory implementation to the Colorado Department of Revenue.
Amendment 64 amends the Colorado Constitution to ensure that it "shall not be an offense under
Colorado law or the law of any locality within Colorado" for an individual 21 years of age or
older to possess, usc, display, purchase, consume, or transport one ounce of marijuana; or possess,
grow, process, or transport up to six marijuana plants.
2o
Unlike Initiative 502, which permits only
state-licensed facilities to grow marijuana, Amendment 64 allows any individual over the age of
21 to grow small amounts of marijuana for personal use.
21
Marijuana may not, however, be
consumed "openly and publicly or in a manner that endangers others."22
In addition, the new law also provides that it shall not be unlawful for a marijuana-related facility
to purchase, manufacture, cultivate, process, transport, or sell larger quantities of marijuana so
long as the facility obtains a current and valid state-issued license.23 Amendment 64 appears to
envision a three-tier distribution and regulatory system, similar to that established in Washington,
involving the licensing of marijuana cultivation facilities, marijuana product manufacturing
facilities, and retail marijuana stores.
24
The Department of Revenue is directed to adopt
regulations to implement licensing qualifications and procedures for these facilities not later than
July 1,2013, and to begin accepting license applications by October 1,2013.
25
The Department
17 Id. at 27.
IS Jd. at 26
J9 Id. 31.
20 Colorado Amendment 64, Amending Colo. Const Art XV[J1 16(3). available at hI1p)/wwwcolorado.gov/csl
Satellite'>blobcol=urldata&blobheader=application/pdf&blobkey=id&blobtable=MungoBlobs&blobwhere=
125J 822971738&ssbinary=true.
2.1 Id.
21 !d.
2-1 Id. at 16(4).
1 ~ The licensing and regulatory systems envisioned by both Colorado and Washington are modeled on similar state
alcohol distribution schemes found across the counlIy.
25 Colorado Amendment 64, at 16(5),
COllgl'essiolltll Research Service 3
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must establish procedures for the issuance, renewal, suspension, and revocation of licenses; a
schedule of licensing and renewal fees: and license qualifications including physical security,
labeling, health and safety, and advertising requirements.
26
Amendment 64 also mandates that the General Assembly enact an excise tax on the sale of
marijuana by marijuana facilities that initially does not exceed 15%? The first $40 million raised
by the marijuana excise tax is to be credited to tbe Public School Capital Construction Assistance
Fund.
Amendment 64 also ensures that employers are not required to accommodate the use of marijuana
in the workplace and that driving under the influence of marijuana remains unlawfuL
28
Final Report of the Amendment 64 Implementation Task Force
Following approval of Amendment 64 by Colorado voters, Governor John Hickenlooper
established the Amendment 64 Implementation Task Force (Task Force) to "identify the legal,
policy and procedural issues that need to be resolved, and to offer suggestions and proposals ...
that need to be taken" to effectively implement Amendment 04.
29
The Task Force issued a final
report on March 13, 2013, consisting of 58 recommendations. Of those recommendations, the
most significant include establishing a "vertical integration" model in which "cultivation,
processing and manufacturing, and retail sales must be a common enterprise under common
ownership,,;30 imposing the required 15% excise tax while preserving the option for a future
marijuana sales tax;31 restricting commercial licenses to grow, process, or sell marijuana to state
residents only;32 and pennitting both residents and nonresidents to purchase marijuana, but
imposing more restrictive limits on the quantity of marijuana that may be purchased by out-of-
state consumers.33
The Task Force recommendations remain advisory until implemented by either state law or
administrative action.
Federal Law
Congress enacted the Controlled Substances Act (CSA)34 as Title 11 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970.
35
The purpose of the (SA is to regulate and facilitate
261d.
27 ld. at 16(S)(d).
2& ld. al ~ 16(6). It should be noted Ulat a slate license IS requued to sell marijuana in eIther state.
29 Task Force Report on the Implementation of Amendment 64, March 13,2013 at 9. Available at
http://www.colorado.gov/ems/Conns/dor-taxlA64TaskF orceFinalReporL pdf
30Id. at 16-19.
31 Id. at 28-3 J.
32 ld. at 3l
JJ ld. at 49-5 I.
3 ~ 21 V.S,c. 801 et seq. In Gonzales v, Raich, the u.s. Supreme Court ruled thaI Congress had the constitutional
authority under the Commerce Clause to prohibit the wholly intrastate cullivation or possession of marijuana for
medical pw-poses. despite state laviS that pennit such activity. 545 V.S. I (2005); for more infonnalion about Ulis
decision, see CRS Report RL32844, The Power /0 RegIliale Commerce: Limits 011 Congre.ssional Power, by Kenneth
(continued ... )
RJN P. 264
the manufacture, distribution, and use of controlled substances for legitimate medical, scientific,
research, and industrial purposes, and [0 prevent these substances from being diverted for illegal
purposes. The CSA places various plants, drugs, and chemicals (such as narcotics, stimulants,
depressants, hallucinogens, and anabolic steroids) into one of five schedules based on the
substance's medical use, potential for abuse, and safety or dependence liability;36 Schedule I
substances are deemed to have no currently accepted medical use in treatment and can only be
used in very limited circumstances, whereas substances classified in Schedules II, III, IV, and V
have recognized medical uses and may be manufactured, distributed, and used in accordance with
tbe CSA The CSA requires persons who handle controlled substances (such as drug
manufacturers, wbolesale distributors, doctors, hospitals, pharmacies, and scientific researchers)
to register with the Drug Enforcement Administration (DEA) in the U.S. Department of Justice,
the federal agency that administers and enforces the CSA.37 Such registrants are subject [0 strict
requirements regarding drug security, recordkeeping, reporting and production quotas, in order to
minimize theft and diversion.
38
Federal civil and criminal penalties are available for anyone who
manufactures, distributes, imports, or possesses controlled substances in violation of the CSA
(both "regulatory" offenses as well as illicit drug trafficking and possession).39
Because controlled substances classified as Schedule I drugs have "a high potential for abuse"
with "no currently accepted medical use in treatment in the United States" and lack "accepted
safety for use of the drug [] under medical supervisions,,,4o doctors may not prescribe them to
patients, and such substances may only be used for bona fide, federal government-approved
research studies.
41
Under the CSA, only DEA-licensed doctors are allowed to prescribe controlled
substances listed in Schedules lJ- V to patients.
42
Federal regulations stipulate that a lawful
prescription for a controlled substance may only be "issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his professional practice. ,,43
The CSA establishes an administrative mechanism for substances to be controlled (added to a
schedule); decontrolled (removed from the scheduling framework altogether); and rescheduled or
transferred from one schedule to another.
44
Federal rulemaking proceedings to add, delete, or
change the schedule of a drug or substance may be initiated by the DEA, the U.S. Department of
( ... continued)
R.lllOmas.
"P.L. 91-513, 84 Stal. 1236 (1970).
36
21 V.S.c. 811-812.
37 The Attorney General delegated his autilOrity under the CSA to the DEA Administrator pursuanlto 21 V.S.c.
2R C.P.R. O.100(h).
38 For more infomlation about tllese requirements, see CRS Report RL34635, Controlled SlIbstances Act:
Regulatory ReqUirements, by Brian T. Yeh.
39 For a detailed description o[the CSA's civil and criminal provisions, see CRS Report RL30722, Dmg Offenses:
Maxllnllln Fmes and Tenns o/IlIIprisollment/or Violation o/the Federal COli trolled Substances ACI GIld Related Laws,
by Brian T. Yeh.
10
21 US.C 812(b)(1).
4121 V.S.C 823(f).
See 21 CF R. I J06.OJ (persons entitled to issue
43 21 CF .R. })06.04; Vnited States v. Moore, 4223 U. S. 122 (1975).
The procedures for tllese act ions are found at 21 U.S. C. 81 I.
RJN P. 265
Health and Human Services (HHS), or by petition by any imerested person.
4S
Congress may also
change the scheduling status of a drug or substance through legislation.
When Congress enacted the CSA in 1970, marijuana was classified as a Schedule I drug.4U Today,
marijuana is still categorized as a Schedule I controlled substance and is therefore subject to the
most severe restrictions contained within the CSA. Pursuant to the CSA, the unauthorized
cultivation, distribution, or possession of marijuana is a federal crime.
47
Although various factors
contribute to the ultimate sentence received, the mere possession of marijuana generally
constitutes a misdemeanor subject to up to one year imprisonment and a minimum fine of
$1,000.
48
A violation of the federal "simple possession" statute that occurs after a single prior
conviction under any federal or state drug law triggers a mandatory minimum fine of $2,500 and
a minimum imprisonment term of 15 days (up to a maximum of two years); if the defendant has
multiple prior drug offense convictions at the time of his or her federal simple possession offense,
(he sentencing court must impose a mandatory minimum fine of $5,000 and a mandatory
minimum imprisonment tenn of 90 days (up to a maximum term oftluee years) . .\9 On the other
hand, the cultivation or distribution of marijuana, or the possession of marijuana with the intent to
distribute is subject to more severe penalties. Such conduct generally constitutes a felony subject
to as much as five years imprisonment and a fine of up to $250,000.
50
Federal Preemption of State Law
The Colorado and Washington laws, which legalize, regulate, and tax an activity the federal
government expressly prohibits, appear to be logically inconsistent with established federal policy
and are therefore likely subject to a legal challenge under the constitutional doctrine of
preemption. The principal that states cannot enact laws that contradict federal law is grounded in
the Supremacy Clause of Article VI, cL 2, which states that "[t]he Constitution, and the Laws of
the United States which shall be made in Pursuance thereof; and all Treaties made ... under the
Authority of the Uruted States, shall be the supreme Law of the Land."sl The Supremacy Clause,
therefore, "elevates" the U.S. Constitution, federal statutes, federal regulations, and treaties
52
above the laws of the states. 53 As a result, where federal and state law are in conflict, the state law
is generally preempted, leaving it void and without effect.
S4
The Supreme Court has established three general classes of preemption: express preemption,
conflict preemption, and field preemption.
55
Express preemption exists where the language of a
1121 V.S.c. 811 (a) .
621 V.S.c. 812(c).
H Very narrow exceptions 10 Ihe fedeflll prohihilion rio exist For example, one may legally use marijuana if
parlicipating in an rDA approved study or participale in Ihe Compassionale Invesligalional New Drug program.
18 21 U.S,C. 844(a).
49
21 U.S,c. 844(a).
521 U.S.C. 841(b).
II U,S. CONST., Art. VI, d. 2.
12 See discussion of preemplive effect o[lrealies infra.
lJ Northern Slales Power Co. v. Minnesola, 447 F.2d 1143, 1145 (8
'b
Cir. 1971) .
11 See, e.g., Wickard v. Filbuffi, 317 U.S. III, 124 (1942)("[N]o foml of slate aellvity can constitutionally lhwart lhe
regulalory power gran led by Ille commerce clause 10 Congress")'
)5 Hines v. Davidowitz, 312 U.S. 52,67 (1941); See also, English v. General Elee. Co., 496 U.S. 72, 79 (1990) ("By
(continued ... )
RJN P. 266
federal statute explicitly states the degree to which related state laws are superseded by federal
law.
56
In contrast, where Congress does not aniculate its view as to a statute's intended impact on
state laws, a court may imply preemption if there is evidence that Congress intended to supplant
state authority.57 Preemption is generally implied in two situations. First, under field preemption,
a state law is preempted where a "scheme of federal regulation is so pervasive as to make
reasonable the inference that Congress left no room for the States to supplement it.... ,,58 Second,
under conflict preemption, a state law is preempted "where compliance with both federal law and
state regulations is a physical impossibility ... or where state law stands as an obstacle to the
accomplislunent and execution of the full purposes and objectives of Congress. ,,59
Regardless of the type of preemption at play, the task of evaluating the preemptive effect of a
federal law is "one of detennining congressional intent.,,6o By making its intent clear, CongTess
may choose to preempt all related state laws, no state laws, or only select state laws.
Preemption Under the Controlled Substances Act
In Section 708 of the CSA (21 U.S.c. 903), Congress specifically articulated the degree to
which federal law was to preempt state controlled substances laws. This express preemption
61
provision recites language that evokes the principles of conflict preemption, stating,
No provision of this subchapter shall be construed as indicating an intent on the part of the
Congress to occupy the field in which thai provision operates, including criminal penalties,
to the exclusion of any State law on the same subject ma!1er which would otherwise be
within the authoriry of the State, unless Ihere is a posilive conflicl belween thai provision of
this subchapter and that Stale /cru) so thaI the {v.Io cannot consislellfiy stand logelher.
62
Notably, the provision clarifies that Congress did not intend to entirely occupy the regulatory
field concerning controlled substances or wholly supplant traditional state authority in the area.
Indeed, Congress expressly declined to assert field preemption as hlTOunds for preempting state
(.. .continued)
referring to these three categories, we should not be taken to mean that tJley are rigidly distinct").
~ 6 See, e.g., English v. General Elee. Co., 496 U.S. 72, 79 (1990).
~ J There is, however, a presumption against federal preemption when it comes to the exercise of "historic police powers
of the States" Rice v. Santa Fe Elevator Corp., 331 U.s. 218,230 (1947). Where Congress legislates witllin is area of
traditional slate control, courls generally imply preemption only where it is the "clear and manifest purpose of
Congress" [d. State laws defining criminal conduct and regulating drugs are generally accorded Ihis presumption.
58 San/a Fe Eleva/or CO/p., 331 US. at 230 (1947).
~ 9 See, Gade v. Natioual Solid Waste Management Assn., 50S U.S. 88,98 (l992)(emphasis added).
60 Skull Valley Band of Goshute Indians v. Nielson, 376 FJd 1223, 1240 (1 O'h Cir. 2004) (ciling Wardair Canada, Inc.
v. Florida Dep'l of Revenue 477 US. J (1986)).
61 A number of courts have held tllat the CSA doeg not contain an "express preemption" provision. See, e.g., Ier Beek
v City ofWyorning, 2012 Mich App. LEXIS ISlO (Jllly 31, 2012)(stating that "express preemption is inapplicable
because there is no express preemption provision in the CSA"). It is not entirely clear why 21 V.S.c. 903 would not
constitute such a provision. AltllOugb not imperative to the preemption analysis, it would seem that an express
preemption provision includes any provision in which Congress expressly articulates the preemptive elIect oCa federal
statute. Enghsh v. General Elee. Co., 496 V.s. 72, 79 (1990) (obseIVlllg that express preemption exisls when Congress
"define[s] explicitly the extent to which its enaCUTIents pre-empt state law"). 21 U .S.C 903 would appear to meet that
definition as it describes what state laws Congress did, and did not, lntend to be preempted,
62 21 U. S,c. 903 (emphasis added),
RJN P. 267
law under the CSA. Thc Supreme Court has stated that this provision suggests that Congress
"explicitly contemplate[ d] a role for the States in regulating controlled substances. ,>63 As such, the
preemptive effect of the CSA is not as broad as congressional authority could have allowed.
States remain free to pass laws relating to marijuana, or other controlled substances, so long as
they do not create a "positive conflict" with federal law, such that the two laws "cannot
consistently stand together." In attempting to give effect to Congress's intent, courts have
generally established that a state law is in "positive conflict" with the CSA only if
I. it is "physically impossible" to comply with both the state and federal law (the
"impossibility prong"); or
2. the state law "stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.,,64 (the "obstacle prong")
By preempting only those state laws in "positive conflict" with the CSA, without including any
reference to those state laws that posc an obstacle to the CSA, some lower California courts have
held that Congress did not intend 21 USc. 903 to preempt state laws under the obstacle
prong.
65
However, in 2009, the Supreme Court applied both the impossibility and obstacle prongs
in interpreting the preemptive effect of a similar preemption provision found within the Food
Drug and Cosmetic Act (FDCA).66 That provision provided that a state law would be preempted
only where it was in "direct and positive conflict" with federallaw.
67
Given that most lower
courts have applied both the impossibility and the obstacle prong in detennining whether state
medical marijuana laws are in "positive conflict" with the CSA, and the Supreme Court's recent
interpretation of the FDCA preemption provision, it would appear that the preemptive effect of
903 Ukely extends to both those state laws that make it impossible to comply with federal law
and those that create an obstacle to the accomplishment of Congress's objectives.
Although applicable, courts have only rarely invalidated a state law as preempted under the
impossibility prong ofthe positive conflict test.
68
Under the generally adopted reasoning, unless
state law reqUires what federal law prohibits, or state law prohibits what federal law reqUires, it is
not "impossible" to comply with both laws.
69
rn the medical marijuana context, for example,
courts have generally asserted that an individual can comply with the CSA and a state medical
marijuana exemption by refraining from the lise of marijuana altogether.
70
As a general matter, it
is clear that the principle provisions of the Colorado and Washington laws do not require
63 GOT17.ales v. Oregon, 546 US. 243,251 (2006).
6J See, e.g., Emerald Steel fabricators, IDc., v. Bureau of Labor and Industries, 348 Ore. 159 (2010); Qualified Patients
Assoc, v, City of Anabeim, 187 CaL App. 4'h 734 (2010); T ~ r Beek v. City or Wyoming, 2012 Mich. App. lEXlS 1510
(July J 1,2012).
65 See, e.g., COllnty of San Diego v. San Diego NORML, 165 CaL App. 4'\0 798 (2008)(holding that a slate law conflicts
with tlle CSA only where it is impossible to comply with both !.he state and fedemllaw}
66 Wyeth v. Levine, 555 US. 555 (2009).
61 Id. at 1195-96.
lIS The impossibility prong of the conflict preemption test has been characterized as "vanishingly narrow. ,. Caleb
Nelson, Preemption, 86 VA. L REv. 225, 228 (2000).
69 See Barnell Bank v. Nelson, 517 US. 25 (1996).
70 See, e.g., Emerald Sleel, 348 Ore. at 175 ("[A] person can comply \vith both laws by retralllUlg [rom any llse of
marijuana, in much tlle same way that a national bank could comply with state and federal law Ul Bnl11ell Bank by
simply refraining from selling insurance'').
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Stn te Legll/izntioll of Recreatiollal Man';uallfl.: A Legal Allallfs;s
individuals to engage in activity prohibited by federal law, and thus likely do not make it
physically impossible to comply with both federal and state law.
7l
Given the narrowness with which courts have interpreted the first prong of the positive conflict
test, the validity of state laws that appear inconsistent with federal law has traditionally hinged on
whether the state law "stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress, "Most of the following analysis, then, will focus on
whether the Washington and Colorado laws represent such an obstacle.
Application of Preemption Principles to Washington and
Colorado Legalization Measures
The extent to which a state law that legalizes, regulates, and taxes marijuana for recreational
purposes may be preempted by the CSA is a novel and unresolved legal question, The federal
courts, for instance, have not engaged in any substantial analysis of whether federal law preempts
state marijuana laws.72 Existing applicable precedent, which has arisen as a result of challenges to
state medical marijuana laws, has been developed almost exclusively by state courts, and even
then, mostly by lower court decisions that range widely in their approach to the preemption
question.
73
This divergent body of precedent, in conjunction with the general preemption
principles previously outlined, would appear to be the most likely source for the standards upon
which the validity of the Washington and Colorado laws may be judged.
Before proceeding, it is important to note the structural similarities of both the Washington and
Colorado laws. Each law seeks to achieve three different but interrelated objectives: the
legalization of marijuana, the regulation and licensing ofrnarijuana producers, processors, and
retailers, and the taxation of marijuana sales. Because each of these objectives conflicts with
federal law to a different degree, for purposes of a preemption analysis each aspect of the state
laws must be considered separately.
At the outset, however, it is important to emphasize "two cornerstones of pre-emption
jurisprudence," that will likely playa significant role in any review of the Washington or
Colorado laws.
74
First, "the purpose of Congress is the ultimate touchstone in every pre-emption
case.,,7; Thus, in considering the preemptive scope of the CSA, it is necessary to establish
71 One provision of the Washington law may be construed as "requiring" an i.ndividual to violate federal law. Under
II oCtile lnillalive, "every licensed marijuana producer and processor must submit representative samples of
marijuana ... produced or processed by the licensee to an independent, third party testing laboralory ... " WashinglOn
Initiati ve 502 II . In Pnck v. City of Lnng Beach. 199 Cal. app. 4th 1070. 1090-91 (20 II) a Cali fomia court held Illat a
city ordinance lhal required marijuana collectives to submit samples of analysis appeared ''10 require thai certalll
individuals violate thc federal CSA."
72 Although the Supreme Court has issued two decisions relating to the CSA's marijuana provisions, neither case
discussed the preemplion question. See Gonzales v. Raich, 545 U.S. I (2005)(holding that lhe CSA's prohibition on the
local cuhivalion and use of marijuana v"as wilhm Congress's aUlhority); United Stales v. Oakland Calmabis Buyers'
Cooperallve, 532 U.S. 483 (200 I )(holding that there is no medical necessity exception to the CSA).
73 The Oregon Supreme Court appears to be Ille only state Supreme COllT! to directly consider the extent to which the
CSA preempts slate marijuana laws. With gpecific importance to the immediate analysis, it does nol appear that any
slate court in Colorado or has the preemplion issue.
Wyeth v. Levine, 555 U.S. 555,565 (2009).
75Id.
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Congress's "purpose" in enacting the law. The Supreme Court has previously identified the "main
objectives" of the CSA as "conquer[ing] drug abuse" and "control[ing] the legitimate and
illegitimate traffic in controlled substances.,,76 Second, "[i]n all pre-emption cases ... we 'start
with the assumption that the historic police powers of the States were not to be superseded by
[federal law] unless that was the clear and manifest purpose of Congress."n State drug laws,
including those connected to marijuana cultivation, distribution, or possession have generally
been considered to be within "the historic police powers of the States.,,78 Consequently, the
Washington and Colorado laws would likely be accorded a presumption of validity.
Legalization
Both Colorado and Washington have provided that the possession of marijuana in accordance
with certain restrictions
79
shall not be a violation of state law. It would appear unlikely that these
aspects of both state laws-which only exempt certain individuals who possess marijuana from
penalties under state law-would be preempted by federal law. It is important to reiterate
however, that even if otherwise valid, permitting the possession, distribution or production of
marijuana under state law does not alter the fact that the conduct remains a crime under federal
law.
Under the police power, states are generally free to criminalize any conduct (within [he bounds of
state and federal constitutional protections) which they wish to deter.
80
Although the federal
government may use its power of the purse to encourage states to adopt certain criminal laws, the
federal government is limited in its ability to directly influence state policy by the Tenth
Amendment, which prevents the federal government from directing states to enact specific
legislation, or requiring state officials to enforce federal law.
81
As such, the fact that the federal
government has criminalized conduct does not mean that the state, in turn, must also criminalize
or prosecute that same conduct. It has generally been recognized that the states and the federal
government operate as two distinct sovereigns, enacting separate and independent criminal
regimes with separate and independent enforcement mechanisms, in which certain conduct may
be prohibited under one sovereign and not the other.
82
If prohibiting certain conduct under federal
76 GonzaJes v Raich, 545 US. I, 12 (2005). Moreover, in a case addressiog whether the CSA prohibited physician
assisted suicide, Ibe court appears to have characterized !he CSA "as a statute combaling recreatIOnal drug abuse ... " It
is clear. however, that willl respect to marijuana, llle CSA prohibits bolll recreational and medical uses.
J7 Wyeth, 555 U.S. al 565.
78 Rice v. Santa Fe Elevalor Corp., 331 U.s. 218 ([ 947). In these areas, a more "significant" conOiet may be required
before a slate law constitutes an obstacle to the achievement of the federal goal. Couoty of San Diego v. San Diego
NORML, 165 CaL App. 4'b798 (2008) (eiling Boyle v, Un.ited Technologies Corp., 487 U.S. 500, 507 (1988)).
79 Bolh slate laws legalize only the possession of oDe ounce or less by iodividuals 21 years of age or older.
80 As opposed to the federal government, which is one oflimiled and enumerated power, the slates have retained
"inherent police power," Newbeny v. United States, 256 U ,S, 232 (1921). This includes lhe power to legislate for the
"health, safety, and morals" of the citizenry. Barnes v. Glen Theatre, Inc., SOl U.S, 560,569 (1991).
81 See, Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.s. 144 (1992). In Reno v.
Condon, the Supreme Court held that a federal law does not "commandeer" state resources so long as it "does not
require the States in their sovereign capacities to regulate llleir own citizens," but rather regulates state activities
directly. 528 U.S. 141, 151 (2000). See also, Gonzales v. Oregon, 546 U,S, 243, 270 (2006)("Ule structure and
limitations of federalism ... allow the States great latitude under lheir police powers to legislate as to llle protection of
the lives, limbs, heaJlll, comfort, and quiet of all omil1ed).
8..; See, e.g., U.S. v. Lanza, 260 U.S. 377,382 (1922)("We have here lwo sovereigns, deriving power from dilTeren(
sources, capable of dealing with !he same subject matter within the same territory ... Each government in delenninjng
what shall be an olTense against its peace and dignity is exercising its own sovereignty, nol lhat of the oUler").
RJN P. 270
law had the effect of barring any state attempt to permit that same conduct, the result would bc a
legal environment in which states were compelled to adopt criminal measures that mirrored
federal law. The Tenth Amendment prohibits such a requirement.
s3
In situations where states are
unwilling to voluntarily prohibit conduct that Congress has detennined should be deterred "the
proper response--according to [the Tenth Amendment]-is to ratchet up theJederal regulatory
. d h f h ,,84
regIme, 110t to cornman eer t at 0 testate.
These principles of federalism would appear to both inform and restrict the reach of federal
preemption. Under both Tenth Amendment and preemption principles, federal and state courts
have previously held that a state's decision to simply permit what the federal government
prohibits does not create a "positive conflict" with federallaw.
85
As discussed above, under the
impossibility prong of conflict preemption, the Supreme Court has specifically held that so long
as an individual is not compelled by state law to engage in conduct prohibited by federal law, then
simultaneous compliance with both laws is not "impossible.,,86
Nor have courts generally found that simply permitting conduct that the federal government
prohibits stands as an "obstacle to the execution of Congress's objectives." The Supreme Court
has interpreted this prong relatively narrowly, holding that a state law is preempted where the
obstacle is of such a degree that "the purpose of lhe [federal] act cannOl otherwise be
accomplished."s7 In the medical marijuana context, courts have generally found that exempting
individuals from state penalties has only a limited impact on the federal government's ability to
combat the use of marijuana because an exemption under state law does not obstruct the federal
government's ability to investigate and prosecute violations ofJederallaw. It is well established
that compliance with state medical marijuana laws is no defense, and provides no immunity to a
federal criminal prosecution under the CSA.8s The federal government remains free to expend its
own resources to implement and enforce its own law, regardless of whelher the state chooses to
criminalize that same conduct. The fact that a state does not wish to expend its resources to
implement a policy similar to that ofthe federal government, though likely making overall
8J For a broader discllssion of the principles of federalism embodied within the Tenth Amendment, see CRS Report
RL30315, Federalism, Siale Sovereigllfy, and the Cons/illllin11: Basis aud LimilS oJCongressiollnl Power, by Kenneth
R. Thomas. For a specific discussion of the Tenth Amendment's application to slale and federal marijuana laws, see
CRS Report R42398, Medical Marijuana: The Supremacy Clause, Federalism, and Ihe Inlerplay Ben'l'een Stale and
Federal Laws, by Todd GalVey.
8J QualifIed PatieDls Assoc, v. City of Anaheim, 187 Cal. App. 4th 734 (20l0) (ciling Conant v, Walters, 309 F.3d 629,
646 (9'h Cir. 2002) (Kozinski, 1., concurring)
&5 See, Wyeth v, Levine, 555 US, 555 (2009); Bamen Bank v. Nelson, 517 U,S. 25 (1996),
86 Bamell Bank, 517 U.S. at 31 (holding lhal a federal stalute lhal pennilled nalional banks to sell insurance and a stale
stalute lhat prohibited banks from selling insurance did not "impose directly conflicting duties"),
87 Crosby v. National Foreign Trade Council, 530 U.S, 363,373-74 (2000).
ss See, e.g., United Stales v. Oakland Cannabis Buyers' Cooperative, 532 U,S. 483 (2001)(holding thaI Ulere is no
medical necessity defense under tbe CSA, even where state law recognizes such a defense.); United Slates v.
Rosenthal, 454 f.3d 943 (9'11 CiL 2006) (holding that state medical marijuana law could not acl as a shield to federal
prosecution,); United Slates v. Slacy, 734 F. Supp. 2d 1074, 1079 (S,l). Cal. 2010) ("lTlhe fact that an mdlvidualmay
not be proseclited under [state] law does not provide him or her with immunity under federal law."); United States v.
Lynch. 2010 U.S. Dis\. LEXIS S3011(CD. Cal. 2010).
COllg,'essiollal Research Service 11
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enforcement less effective,89 has not, in the past, created an obstacle to the federal law sufficient
9()
to tngger preemptIOn.
In light of this dynamic, it would appear that those aspects of the Colorado and Washington laws
that remove state penalties for possession of marijuana may properly be characterized as an
exercise of the state's "power to decide what is criminal and what is not.,,91 Neither law purports
to shield its residents from the legal consequences ofviolating federal law. Given both the
limitations on congressional power imposed by the Tenth Amendment and preemption precedent
arising from challenges to state medical marijuana laws, it would appear unlikely that a reviewing
cow1 would invalidate either Colorado or Washington's decision to simply exempt certain
marijuana-related conduct from state penalties under state law.
Regulation and Licensing
Although the legalization aspects of both the Washington and Colorado laws would likely survive
a legal challenge, the regulation and licensing aspects of each law may raise more substantial
preemption concerns. In addition to removing state penalties relating to certain marijuana-related
activities, both states envision comprehensive, state implemented regulatory and licensing
regimes to control the cultivation, distribution and sale of marijuana within the state. These
provisions can arguably be distinguished from the legalization provisions in two key ways, both
of which appear to support a finding of preemption. First, the regulatory and licensing provisions
potentially create an increased "obstacle" to the accomplishment of federal objectives by
"authorizing" conduct federal law prohibits. Second, the affirmative act of regulating and
licensing marijuana cultivation and distribution may not invoke the same Tenth Amendment
protections enjoyed by the states' initial decision to simply remove marijuana-related penalties
under state law.
To the contrary, arguments can also be made in opposition to preemption. The regulation and
licensing provisions could be viewed as a necessary implementation mechanism tluough which
the states may efficiently identify those individuals who have met the requirements of the state
marijuana law without impeding the enforcement offederallaw. Moreover, the regulatory and
licensing provisions could be characterized as imposing additional restrictions on marijuana
access-an objective consistent with the purposes of the CSA-and thus are not subject to
conflict preemption. These contrasting views, either of which could be invoked in a court's
review of the Colorado and Washington laws, are discussed in greater detail below.
89 This is especially true wilhin the marijuana context See Ter Beek v. Cil)' of Wyommg, 2012 Mich. App. LEXIS
1510 (July 3 I, 2012) ("99 out of every 100 marijuana-based arrests in the United States are made under state law. ").
Although state medical marijuana exemptions have lypiC<!lIy not been found to create an unacceptable obstacle 10
federal law, an argument could be forwarded thaI recrealional legalizalion measures, such as tilOse in Colorado and
WashillgtO)l Ihal pennit marijuana use on a larger scale, wuld represent a Ulore substanlial barrier 10 Ihe
accomplishmenl of federal objectives. As a praclical maller, even if a court were 10 adopt til is reasoning and slrike
down (he legalization provisions, neither the federal government nor a COllrt can compel a state to 1l1.1ke
possession a criminal offense under state law. The potentially bizarre result may be that ifprohiblled from an
express provision of stale law ensuring tilat "il shall nOI be unlaw[ullo possess one ounce of marijuana," a stale couJd
simply choose 10 repeal all criminal provisions thaI apply 10 the possession of marijuana. TIle result as to tlle legality of
marijuana possession under state criminal law would appear to be substantially the same whether the state affimlalively
penni IS, or fails 10 proscribe certain conduct.
91 City of Garden Grove v. Superior C1. of Orange County, 157 Cal. App. 4
lb
355 (2007) (eiting Gonzales \I. Ro/ch, 545
U.S. 1,42 (2005) (O'Connor, 1., dissenting).
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The Exemption/Authorization Distinction in Obstacle Preemption
Where the federal government has prohibited specific conduct, the Supreme Court appears to
nave expressed concern over state laws that go beyond exempting that conduct from state
penalties, and instead attempt to actively "authorize" conduct in violation of federal law. In
Michigan Canners & Freezers v. Agricultural Board, the Court held that a state law that permitted
a state board to authorize a food producers association to act as an exclusive bargaining agent for
all producers of a certain commodity was in conflict with a federal law that prohibited
associations from interfering with an individual food producer's decision to sell its products on its
own or through an association.
92
The Court determined that although it was possible to
simultaneously comply with both the federal and state law, because the state board was
empowered to "autharize[J producers' associations to engage in conduct that the federal act
forbids, it 'stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress. ",93 Although the Court did not adopt an express distinction, the
possibility that state "authorizations" may create a more substantial obstacle to the
accomplishment of federal objectives than a state "exemption" from state penalties, could playa
significant role in a court's evaluation of the Colorado and Washington laws.
Consider, for example, the Oregon Supreme Court decision in Emerald Steel Fabricators v.
Bureau alLabor and Indus tries. 94 In that case the Oregon Supreme Court heard a challenge to the
state identification card provisions of the Oregon Medical Marijuana Act. Under Oregon law, the
state issued identification cards that permitted qualified individuals to "engage in the medical use
... of marijuana" without the threat of state prosecution.
95
In evaluating the state law, the Oregon
Supreme Court first affirmed that it was not invalidating Oregon '5 decision to simply exempt
medical marijuana users from criminal liability under state law-suggesting that such measures
were within the states' authority and beyond the reach of Congress under the Tenth Amendment.
96
The licensing provisions, however, which authorized an individual with an identification card to
engage in the use of marijuana, were distinguishable.
97
The Court held that by "affinnatively
authorizing a use that federal law prohibits," the Oregon law stood "as an obstacle to the
implementation and execution of the full purposes and objectives of the Controlled Substances
Act, " and was therefore preempted.
98
"[T]here is no dispute," the court concluded, "that
'n 467 U.s. 461 (1984).
9:> Id. at 477 ("The Michigan Act, however, empowers producers' associations to do precisely what the federal Act
forbids them to do'l
9J Emerald Steel Fabncators, Tnc., v. Bureau of Labor and Industries, 348 Ore. 159,230 P.3d 518 (20 I 0).
9l !d. at 525. The challenge to Ule law arose in the context or an employment discrimination claim in which an
employee, who had oblained an identification card due to a medical condition, was allegedly discharged for admilting
that he used marijuana. Oregon law requires that employers "make reasonable accommodations" for an employee's
disability as loug as sucb an accommodation does not impose an undue hardship upon the employer. However, the law
is to be inlerpreted consistently with the federal Americans with Disabilities Act, which does nol alTord protections for
employees "currently engaged in the illegal use of drugs."
% Id. at 526 n.12 ("TIle only issue that employer'g preemption argument raises is whether federal law preempts ORS
475.306(1) 10 the extent Ulat it authorizes the use of medical marijuana. In holding that federal law does preempt that
subsection, we do Dot hold Ibat federal law preempts the other sections of the Oregon Medical Marijuana Acttbat
exempt medical marijuana use from criminal liability.")
97 The court specifically noted that "the validity of the exemptions and the validity of the authorization tum on dilTerent
conslltul(onal principles." Id. at 530 AltllOUgh Congress may "lack authority to require stales to criminalize conduct
thai the states choose to leave unregulated ... [b Jy contrast, there is no dispute Ulal Congress has the authority under tlle
Supremacy Clause to preempt state laws that affumatively authorize the use of medical marijuana." ld.
98 Id. at 529-30.
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Stn te Legll/izntioll of Recreatiollal Man";uallfl.: A Legal Allallfs;s
Congress has the authority undcr the Supremacy Clause to preempt state laws that affinnativcly
authorize the use of medical marijuana:>99
Most California courts, however, have not adopted the exemption/authorization distinction, and
have instead generally upheld California medical marijuana identification card provisions. These
cases have generally stressed that the Tenth Amendment protects California's decision to pennit
medicinal marijuana and that the state's medical marijuana law in no way affects the federal
government's ability to prosecute for violatiollS of federal law. For example, in County of San
Diego v. San Diego NORML, and Qualified PaLienls Association v. City of Anaheim, an
intermediate California appellate court twice upheld the identification card provisions of the
California Medical Marijuana Program Act (Mtv1PA).loO Like the Oregon law, the MMPA
provides that persons with valid identification cards shall not be subject to criminal sanctions
under state law.
In both cases, the California appellatc court held that the state law did not impose a significant
obstruction to the federal objectives embodied within the CSA. 101 In County of San Diego, the
court relied principally on a determination that the identification cards did not "insulate the bearer
from federal laws," nor did the card "imply the holder is immune from prosecution for federal
offenses."I02 The identification cards, Lhe C()url reasoned, inslead represented a "mechanism" by
which California law enforcement officers could efficiently identify those individuals who are
exempt from prosecution under California law for possessing marijuana.103 In Qualified Patients,
the court relied more heavily on the Supreme Court's statement in Crosby v. National Foreign
Trade COlll1ci/l04 that a state law presents a sufficient obstacle to the accomplishment of federal
objectives only where "the purpose of the [federal] act cannot otherwise be accomplished," as
well as the anti-commandeering principles of the Tenth Arnendment.
105
In detennining that the
991d. In a subsequent case evaluating whether the Oregon concealed handgun. licensing statute ""'liS preempted by the
Federal GWl Control Act, the Oregon Supreme Coun arguably con filled the authoro..ationJexemption distinction,
warning Ihat "Emerald Steel should not be construed as announcing a stand-alone rule that any stale law that can be
viewed as "afTtrmatively authorizing" what federal law prohibils is preempled. Rather, it reflects this coun's atlemptto
apply the federal rule and lile logic of the most relevant federal cases to the particular preemption problem lilat was
before it. And particularly where, as here, the issue ofwhetlrer the Slatute contains an allimlative authorization is not
straightforward, the analysis in Emerald Steel cannot operate as a simple stand-in for the more general federal rule."
Willis v. Winters, .150 Or 299,25.1 P.ld 105R (2011)
100 165 Cal. App. 4'h 798 (2008), review denied 2008 Cal. LEXlS 12220 (Cal. 2008); 187 Cal. App. 4th 734 (2010).
101 Notably, after considering lile previously discussed "impossibility" and "obstacle" prongs of conflict preemption,
the court m COl/illy of San Diego, concluded that the language of the CSA suggested that Congress "did not intend to
supplant all laws posing some conceivable obstacle to the purposes of the CSA" Thus, the court rejected the
application of "obstacle" preemption under the CSA and held that a stale law should only be preempted ifit were
impossible to simultaneously comply with bolil state and federal law. However, lile court then went on to apply both
the impossibil(ty and tlle obstacle prong of the preemption analysis.
1()2 ld. al 825. TIle Court of Appeals of Michigan appears to have also adopled a similar line of reasoning, holding that
the Michigan medical marijuana law "is not preempted by the CSA because it only grants inunulllty from state
prosecution and, therefore, does not stand as an obstacle 10 the accomplishment and execution of the full pU'1loses and
objectives ofCongrcss." Ter Beek v. City of Wyoming, 2012 Mich. App. LEXIS 1510 (July 31,2012).
10) ld. at 827. The coun also noted that "[aJlthough California's decision to enact statuto!)' exemptions from state
crinuoal prosecution for such persons arguably undermines the goals or is inconsistent with the CSA-a question we
do not decide here-any alleged 'obstacle' to the federal goals is presented by those Califomta statutes that create the
exemptions, nOl by lhe stalUles providing a system for rapidly idemifying exempt individuals.").
104 530 U.S. 363 (2000).
lOS 187 Cal. App. 4
u
734,761-63 (2010).
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state law did not create a sufficient conflict with federal law, the court noted that "preemption
theory [] is not a license to commandeer state or local resources to achieve federal objectives."lo6
However, in a ruling that was later dismissed as moot by the California Supreme Court after the
city orrunance in question was repealed, one California appellate court deviated from County of
San Diego and Qualified Patients in striking down a marijuana regulatory scheme that had been
implemented by the City of Long Beach, California. Pack v. City of Long Beach involved a
preemption challenge to a city ordinance that established a "comprehensive regulatory scheme by
which medical marijuana collectives" were to be govemed.
107
Pursuant to the ordinance, the city
issued pennits to marijuana collectives and adopted regulations that restricted their operation. In
applying the obstacle prong to detennine whether the local ordinance was preempted by the
CSA,108 the court clearly addressed the exemption/authorization distinction, reasoning that ''there
is a distinction, in law, between not making an activity unlawful and making the activity lawful ...
The state law does not present an obstacle to Congress's purposes simply by not crirninalizing
conduct that Congress has crintinalized.,,109 However, the court concluded that the city ordinance
"goes beyond decriminalization into authorization."lJO By establishing a permit scheme that
"determines wltich collectives are permissible and wltich collectives are not," the city was
affirmatively authorizing individuals to engage in conduct barred by federallaw.
111
Citing
Michigan Canners, the court held that such an action "'stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress' and is therefore
preempted.,,112
In light of these varying approaches, it is apparent that the extent to which state marijuana
provisions (whether medicinal or recreational) are preempted by the CSA is unsettled. However,
if a reviewing court were to adopt the exemptiorL'authorization distinction applied in Emerald
Steel and Pack, it would appear that the Colorado and Washington recrealionallicensing
provisions would likely be invalidated. Both state initiatives involve a significantly higher degree
of state involvement in the "authorizing" of marijuana activities than merely issuing identification
cards. Both Colorado and Washington plan to implement a robust and comprehensive regulatory
distribution scheme (akin to the ordinance at issue in Pack) that provides state issued licenses to
marijuana producers, processors, and retai lers.ll3 An individual who obtains the proper license
from the state would be authorized to grow, transport, or sell marijuana under state law. This
licensing of marijuana-related activities by the state could be viewed as exceeding a decision to
detennine what conduct constitutes an offense under state law, and instead representing an action
by the state to "affinnatively authorize" conduct prohibited under federallaw.
114
106 ]d. at 761.
107199 CaL App. 4'h 1070, 1076 (2011) (appeal dismissed 283 P.)d 1159 (2012) ("[n this case, we are concerned with a
city ordinance which goes beyond simple decrimillalization,") (emphasis in original).
108 As with previous cases, the court first found !llal "[sjince a person can comply wilh both the federal CSA and the
City ordinance by simply not being involved in the cultivation or possession of medical marijuana at all, Ulere is no
con/1 ict (impossibi Ii ty 1 preemption" ld. at 1090.
'09 Id. at 1092-93.
lIO Jd. at 1093.
III Jd.
lI2 Jd. at 1093-
II) Bolh initiatives require Iicensmg of manJuana producers. processers, and sellers, and empower slale agencies to
promulgate broad rules and regulations 10 implement a regulatory and licensing scheme.
114 A reviewing court may <'I.lso focus on Ule scope of the Colorado and Washington inilialives. [n County ojSan Diego
(continued ... )
COllgJ'essiolltll Research Service 15
RJN P. 275
In the alternative, a reviewing court could adopt a line of reasoning similar to that in County of
San Diego and Qualified Palients and determine [hat the Colorado and Washington licensing
provisions are a proper exercise of state power and not in conflict with the CSA.IIS Under this
reasoning, it can be argued that the state regulatory and licensing laws have no impact on the
enforcement of federal law; are necessary to implement the state's decision to remove penalties
for certain marijuana-related activities; do not immWlize or shield the holder from federal
prosecution; and, therefore, are not preempted. Moreover, it could be argued that a state license
acts only as a means by which the state can impose controls on the production and distribution of
marijuana under state law and to identify which individuals have been preapproved to engage in
marijuana-related activities. This appears to be the approach taken by the United States
Bankruptcy Court for the District of Colorado in an opinion focusing on whether a debtor, who
leased space for the purposes of growing medicinal marijuana in compliance with state law, was
engaged in an ongoing criminal activity.116 In what is perhaps the only statement by a federal
court relating to preemption of the Colorado and Washington laws, in In re: Rent-Rile Super Kegs
West LTD, a bankruptcy court noted (in what was clearly dicta) that "conflict preemption is not an
issue here. Colorado constitutional amendments for both medical marijuana, and the more recent
amendment legalizing marijuana possession and usage generally, both make it clear that their
provisions apply to state law only. Absent from either enactment is any effort to impede the
enforcement of federal law. ,,117
( ___ continued)
and Qllolified Palienls-<:ases in which the courts took an arguably less restrictive view of what constitutes an obstaclc
to federal objectives sufficient to rrigger preemption-the court noted that the state medical manjuana laws in question
related more to state medical practices than to the regulation of controlled substances_ In both cases, the coW1 asserted
thar tlle pUlpose of the CSA was (0 "combat recreational drug use, not (0 regulate a state's medical practices" Qualified
Patients, 187 CaL App_ 4!l1 at 760 (ciling COl/nty o/San Diego, 165 CaL App. 4th at 826-27. The laws enacted in
Colomdo and Washington, which legalize, regulate, and license marijuana activities wholly unrelated to any medicinal
purpose, cannot be characterized as a regulation of state medical practices, The reasoning applied by a California
appellate court in Garden Cily v. SlIperior COliri of Ornnge County may also support this concern_ 157 Cal App_ 4'h 355
(2007). In Gorden City, a California court beld that a provision of the California medical mar0uana law requiring tbat
marijuana seized by local police be returned to qualified patients was not preempted by the CSA. TIle court noted that it
was "unreasonable to believe" tllat returning seized manjuana would significantly "hinder the federal goverrunent's
enforcement elTorts" as "this subset of medical marijuana users is too small to make a measurable impact on the war on
dmgs" Id. at 384. Ifthe California court found the "meager" numbers of individuals who would qualify for the retllll1
of seized marijuana to be noteworthy, it is possible that a courl could ahernalively be swayed by the much larger
number of users that would qualify under the Colorado and Washington initiatives, Although it is impossible to identify
the impact tlle Colorado and Washington laws will have on marijuana use, a reviewing court could lind that tlle scope
of the initiatives present a "meaningful threat to the federal drug enforcement effort," ld.
11$ For a discussion oflimitalions on the federal govemment's ability to preempt state medical marijuana laws see,
Robert a. Mikos, Medical Marijllana and the Slaies' Overlooked Power /0 Legalize Federal Cl1l11e, 62 VaDd. L. Rev.
1421 (2009)_
116 In re: Rent-Rite Super Kegs West Ltd_, 484 8.R_ 799 (Dec 19,2012)_ Whether the debtor was engaged in criminal
activity was an issue in the case because "a federal coun cannot be asked to enforce the protections oftlle Bankmptcy
Code in aid of a Debtor wbose activities constitute a continuing federal crime_" Id_ at 805_
117Id. at 805 ("lbe fact that there is a dilTerence in legislative philosophy creatcs no connict that requires an analysis of
federal preemption under tlle Supremacy Clause''). Part oflhe connlsion over the proper application of obstacle
preemption to state marijuana laws may stem from an apparent disagreement over the naCUre of the obstacle that is
required to tngger preemption. As previously noted, the Supreme Court has held that a stale law is preempted when it
"st.1nds as an obstacle 10 the accomplishmenl and execulion of Ihe/ull purposes and objectives 0/ Congress," Most
courts tllat have rejected preemption challenges to state medical marijuana laws have ioterpreted "tile full purposes and
objectives of Congress" in relation to the federal government's ability to enforce federal law. As such, tilese courts
have generally held that because tlle state law does not create a $hield or otllerwise immunize state residents from
federal cnminal prosecutions, the law does not constitute an obstacle to "the enforcement of federal law." To the
(continued __ .)
RJN P. 276
In addition, it has previously been argued that because the licensing and regulatory aspects of
medical marijuana laws actually place additional resfrictions on access to marijuana, those
provisions are more consistent with the objectives of the CSA than the state decision to legalize
marijuana production, distribution, By limiting marijuana and production and
distribution, it could be argued that the envisioned Colorado and Washington regulatory and
licensing provisions "further[] rather than obstruct[] the purposes of the CSA."119 Under this
reasoning, the Washington and Colorado regulatory and licensing aspects could be seen as
supporting the federal government's objectives of"control[ingJ the legitimate and illegitimate
traffic in controlled substances," as opposed to creating an obstacle to that goaL
Taxation
In addition to regulaling and licensing recreational marijuana use, both Colorado and Washington
plan to impose a substantial excise tax on marijuana sales. In Colorado, the tax (which may not
exceed 15% prior to January 1, 2017) is to be levied on sales of marijuana by cultivation
facilities, product manufacturing facilities, or retail stores. 120 In Washington, a 25% tax is to be
imposed at each transaction within the distribution chain, including sales from: producer to
processor; processor to retailer; and from retailer to consumer.l2l Although little precedent exists
relating to state-imposed taxes on medical marijuana, there is evidence to suggest that these taxes
would likely be considered permissible.
The Supreme Court has held that a state may "legitimately tax criminal activities.,,122 Indeed, in
Department of Revenue of Montana v. Ranch, the Court specifically suggested, in dicta, that it
was within Montana's authority to tax the possession of marijuana.
123
The Montana law
challenged in Ranch imposed a tax on the possession of illegal drugs. Although determining that
the law's application to the petitioners violated the Double Jeopardy Clause of the Fifth
Amendment by subjecting an individual to successive punishments for the same offense, the
Court noted briefly that "Montana no doubt could collect its tax on the possession of Marijuana ...
if it had not previously pWlished the taxpayer for the same offense.,,)24 The Court made clear that
"as a general matter, the unlawfulness of an activity does not prevent its taxation. ,,125 In addition,
many states already tax marijuana and other illegal or controlled substances. For example, 20
C .. continued)
conlra!),. the Oregon Supreme Court reasoned lhallhe facl lhal tlle slale law in no way inhibiled federal prosecutions
did nol mean Ihallhe law did nol olherwise creale an obstacle 10 the Congress's chief objective in enacting Ihe CSA;
Ihal of curtalling drug llse.
118 See, Brief of Amici Curiae Professors ofConSlitulional and Criminal Law, Pack v. City of Long Beach, J 99 CaL
App. 1070 (20 II) al 12-18. "Given tllal tlle Tenth Amendmenl pennils Cal ifomia 10 decriminalize all medical
marijuana activilies, it defies rea,on 10 sugge,l lhal Congress inlended tn preempt localities from limiling the
production, limiting U1C proliferation, and reducing Ihe potenlial abuse ofmarijuana-al! of which would serve 10
narrow the scope ofa Slate policy Ihal differs from federal policy." [d, at 16.
119 ld.
120 Washington Initialive 502 27.
121 Colorado Amendmenl 64, Amending Colo. Cons!. Art. XVlll 16(5)(d).
122 Departmenl of Revenuc of Montana v. Ranch, 511 U.S. 767, 775 n.13 (1994) (eiling Marchetli 1/. Unilcd Slales, 390
U.S. 39, 44 (1968.
1235\1 nS.767(1994).
124 !d. at 778.
125 !d. at 788.
RJN P. 277
states require all possessors of marij uana to purchase "tax stamps. ,,126 Although some of these
laws have raised questions relating to the Fifth Amendment's privilege against self-incrimination
and double jeopardy clause, no court has found a state drug tax law to be preempted by federal
law.
Moreover, if analyzing state marijuana taxes within the previously discussed preemption
framework, it would appear difficult to argue that by imposing a tax on marijuana the state has
authorized conduct prohibited under federal law or imposed an obstacle to the achievement of
federal objectives. Taxes are generally imposed to either raise revenue, deter conduct, or both.
Taxes on cigarettes for example, exist both to raise revenue and to deter smolcing. 127 The excise
taxes envisioned by Colorado and Washington appear to be motivated by a desire to raise revenue
to both pay for the regulatory and licensing controls on marijuana and to contribute to other
budgetary needs, most notably health services and education. In addition, the Washington law
states that the Liquor Control Board is authorized to make recommendations to adjust the tax
levels "that would further the goal of discouraging use while undercutting illegal market
prices.,,128 The Colorado law does not explicitly reference any goal of deterring marijuana use,
but it would appear that the envisioned tax may also have that effect. Thus, the state tax may
more accurately be characterized as "interposing and economic impediment to the activity" as
d h
h .. 129
oppose to alit or/zmg t e activity.
Are the Washington and Colorado Laws Preempted
by International Law?
The United States is a party to various treaties that impose international obligations relating to the
control of marijuana. These treaties generally seek to curb the use of controlled substances while
carving out exceptions for "medicinal and scientific" uses.
130
The principle governing treaty in
international drug control, which has been agreed to by more than 180 nations, is the Single
Convention on Narcotic Drugs (Single Convention). HI The Single Convention imposes
restrictions on the manufacturing, distribution, and trade in narcotic drugs by establishing a multi-
schedule classification structure that applies varying controls for each schedule. This framework
later served as the blueprint for the CSA and other foreign drug control statutes.
"Cannabis" is listed as a Schedule I substance under the Single Convention and is therefore
subject to the agreement's most restrictive controls.
132
For example, parties must "take such
126 See State Tax Stamp Data, available at http://nonnLorgilegal/tax-stamps. See also Robert A Mikos, State Taxalion
of Marijuana Distributiol1 and Other Federal Clillles, 2010 U. Chi. Legal r, 223 (2010),
127 See, Nal'l Fed'n ofIndep. Bus. v. Sebelius, 132 S. CL 2566, 2596 (US 2012)
lUI Washington Initiative 502 27.
129 Sebelius, 132 S. CL at 2596 (U.S. 2012) ("To some extent it interposes an economic impediment to llle activity
taxed as compared with others not taxed. 'J.
DO See e.g., Single Convention on Narcotic Drugs art. 4, March 30, 1961. 18 UST. 1407 ("The Parties shall take such
legiSlative and adminislralive measures as may be necessary ... to limit exclusively to medical and scientific Pillposes
the producllon, manufacture, export, imporl, distribution of, trade in, use and possession of drugs.").
131 Single Convention on Narcotic Drugs, March 30,1961, 18 U.S.T 1407. The Single Convention was amended by
tbe 1972 Protocol Amending the Single Convention on Narcotic Drugs,
1'2
, Jd. at art. 2.
RJN P. 278
legislative and administrative measures as may be necessary ... to limit exclusively to medical and
scientific purposes the production, manufacture, export, import, distribution of, trade in, use and
possession of drugs"; limit the quantity of the drug manufactured and imported to "the quantity
consumed ... for medical and scientific purposes"; and furnish the International Narcotics Control
Board with information, estimates, and statistics related to the consumption and production of the
drug. 1)3
In addition to the Single Convention, the 1971 Convention on Psychotropic Substances requircs
that specific controls be placed by parties UpOll THC, the physiologically active chemical in
marijuana,l34 while the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances requires parties to establish criminal penalties for the possession,
purchase, or cultivation of marijuana for nOlUnedicinal consumption, but only to the extent that
such action is consistent with the "constitutional principles and basic concepts of [the country's]
legal system. ,,135
Both the U.S. Drug Enforcement Agency (DEA) and the U.S. Departmcnr of State have
determined that in order to comply with these international obligations, it is necessary that
marijuana remain on either Schedule lor Schedule II ofche federal CSA.l36 The DEA, for
example, has cited the nation's obligations under the Single Convention as the legal j uSlificalion
for denying rulemaking petitions requesting that the Attorney General exercise his authority under
the CSA to remove marijuana entirely from control, or to transfer marijuana to Schedule III or
lower.
The legalization measures enacted by Washington and Colorado would appear to be inconsistent
with the obligations imposed upon the United States under existing international drug control
treaties. However, existing jurisprudence suggests that a reviewing court may not view these
treaty obligations, in and of themselves, as sufficient to preempt and invalidate the state laws.
iJ7
13J Jd. at art. 2,4, 21,28.
JJ4 Convention on Psychotropic Substances, Februal)' 21, 1971,32 U.S:r. 543. The Convention directs parties to
"prohibit all use except for scientific and vel)' limited medical purposes by duly authorized persons, in medical or
scientific establishments which are directly under the control of their Govemments or specifically approved by them
"
1.>5 December 20, 1988, S. Treaty Doc. No, 101-4 ( 1989).
136 See 40 Fed. Reg. 44167, 44168 (September 25, 1975) (statement oCthe Acting Administrator of the DEAl ("The
control mechanisms of the Act for Schedule J or Schedule II are sufficient to meet the obligations of the Single
Convention as to Ule nowering or fruiting tops, seeds, and lcaves when they accompany such tops, and resin .... TIle
Uni ted States Department of Slate inte'1l!"els the Single Convention to require V.S. CODlrol of the flowering or fruit jug
tops oCthe cannabis plant and cannabis regin in Schedule J or Schedule II of the Act"); see nlso Nat'l Org. for the
Reform of Marijuana Laws v. Dmg Enforcement Agency, 559 F 2d 735, 751 (D.C. CiL 1977) (holding thaI, consistent
with the Single Convention, "1he United Slates could decline 10 restrict cannabis and cannabis resin to research
purposes aud could rescl)edule the drugs to CSA Schedule II.").
137 ror a discllssion of the inlerplay between international agreements aod V.S. law, see CRS Report RL32528,
Inlemolional Lawalld Agreelllenls: Their EjJec/ Upon u.s. UIW, by Michael John Garcia. In addllIon, an international
agreement that reqllired states to enact certain marijuana controls may raise concerns under Ule I O'h Amendment.
Although Ole Supreme Court has recognized Ihal Congress may enact legislation to implement U.S. treaty obligations
that would otherwise in6inge upon a state's lIaditional rights tmder the Tenth Amendment, Missollri v. Holland,252
U.S. 416 (1920), Ole precise extenllo which Congress may do so remains unclear. See generally Edward T. Swaine,
Does Federalism Constmin the Treaty Power?, 103 Colum. L. Rev. 403 (2003). For cnticlSlll of the Supreme Court's
decision in Missouri v. Holland, aJld arguments that the treaty power may not expand Congress's legislative power, see
Nicholas Quinn Rosenkranz, ExeclIting the Treaty Power, 118 J-Jarv. L. Rev. 1867 (2005).
RJN P. 279
1 is well established that treaties, like federal statutes, may preempt conflicting state laws. The
Supremacy Clause expressly provides that in addition to federal law, "all treaties made ... under
the authority of the United States, shall be the supreme law of the land.,,138 Therefore, a state law
is generally preempted to the same degree whether it is in conflict with a federal statute or an
international treaty obligation. However, not all treaties are accorded "automatic" preemptive
effect.
139
Only where a treaty "constitute[s] binding federal law," without the "aid of any
[implementing] legislative provision," does it qualify as the "Supreme law of the land" for
preemption purposes.1
40
Such treaties are known as "self-executing" treaties-meaning an
international agreement with "automatic domestic effect as federal law upon ratification.,,141
The Supreme Court recently clarified the distinction between the preemptive effect of self-
executing and non-self-executing treaties in Medellin v. Texas.
1J2
Medellin involved an evaluation
of whether a decision of the International Court of Justice (ICJ)-and a series of underlying
international agreements that required compliance with ICJ decisions-constituted enforceable
federal law with the authority to preempt Texas procedural court rules. In holding that the state
court rules were not preempted, the court noted that it had "long recognized the distinction
between treaties that automatically have effect as domestic law, and those that ... do not by
themselves function as binding federallaw.,,143 Although the IC] decision had clearly represented
an "international obligation," it did not "of its ovm force constitute binding federal law that
.. ,,144
preempts state restnctlOns.
Like the ICJ decision at issue in Medellin, neither the Single Convention nor the other
international drug control treaties appear to be "self-executing." Each treaty requires the signatory
nation to give legal effect to the goals of the treaty through domestic implementing legislation.
The provisions of the treaties do not themselves establish binding domestic law. The United
States, for example, implemented the obligations of these tre<llies through the Because
these treaties do not create binding law "of [their] own force," it would appear unlikely that a
U.S. court would accord the treaties direct preemptive effect.
IJ6
Indeed, in County o/San Diego,
the California court explicitly rejected treaty preemption arguments on the grounds that the Single
138 U.S. Cons!., Art. Vl, cl. 2.
139 Medellin v. Texas, 552 U.S. 491 (2008). for more information see, CRS Report RL34450, Can Ihe Presldenl
Compel Domeslic J:.:njorcemelll oj all iniemaiional1iibuJlai 's Judgment? Overview of Supreme COlin DeCIsion in
Medellin v. Texas, by Michael 101m Garcia.
]JO Foster v. Neilson, 27 U.S. 253 (1829).
141 Medellin, 552 U.S. at 505.
552 U.S. 491 (2008).
\J3 ld. at 50405.
IH ld. at 522-23.
HS See, e.g., 21 U.S.c. 801-801 (3) ("The Convention[on Psychotropic Substances) is not self-executing, and the
obligations of the United States thereunder may only be perfonned pursuant to appropriate legislallon. It is the intent of
the Congress that the amendments made by this Act, together with existing law. will enable the United States to meet
all of its obligations under the Convention ... ").
An argument may also be fOIwarded that the Colorado and Washington laws should be preempted on the grounds
tbat they interfere with the federal government's ability 10 conduct foreign afTairs. See, American Ins. Assoc. v.
Garamendi, 539 U.S. 396 (2003) (striking down the California Holocaust Victim Insurance Relief Act); Crosby v.
NatIOnal ForeIgn Trade CounCil, 530 U.S. 363 (2000) (Illvahdatmg a Massachusens law targeting companies domg
business in Burma). However, it would appear that a state drug law relating to the treatment of marijuana by persons
within the states' jurisdiction is distinguishable from lht: laws at issue Garamelldi and Crosby.
RJN P. 280
convention is non-self-executing. 147 Thus it would appear unlikely that the Washington and
Colorado laws would be found to be preempted by existing international obligations.
148
Potential DO} Responses to Deter
Marijuana Activities and Enforce Federal Law
During a March 2013 Senate Judicial)' Committee oversight hearing, Attorney General Eric
Holder was asked by Senator Patrick Leahy about marijuana legalization in Colorado and
Washinbrton. General Holder replied that the Obama Administration is still in the process of
reviewing the state marijuana laws and considering the appropriate federal response; he promised
to announce a fannal agency policy toward the marijuana legalization laws ''relatively soon.,,149
Absent such guidance, this report will highlight some potential options that the Department of
Justice (DOJ) may have at its disposal in responding to the Washington and Colorado laws. The
doctrine of prose cut oria I discretion gives the DOJ great leeway in choosing whether, and to what
extent, to bring criminal prosecutions for violations of the CSA within Colorado and Washington.
In addition, the DOJ may utilize the CSA forfeiture provision to deter certain activities without
actually engaging in criminal prosecutions. Finally, the DOJ may ask the federal judicial)' to
directly invalidate the state laws by filing a civil lawsuit
Criminal Prosecutions
Criminal prosecutions are perhaps the DOl's most potent tool for undercutting the Washington
and Colorado laws. However, the DO] is not required to zealously enforce every violation of the
CSA. Indeed, pursuant to the doctrine of "prosecutorial discretion," federal law enforcement
officials have "broad discretion" as to when, whom, and whether to prosecute for violations of the
CSA 150 Courts have recognized that the "decision to prosecute is particularly ill-suited to judicial
review," as it involves the consideration of factors, such as the strength of evidence, deterrence
value, and existing enforcement priorities, "not readily susceptible to the kind of analysis the
courts are competent to undertake."IS1 It would appear that the frequency with which the DOJ
chooses to prosecute for violations of the CSA will likely have a substantial effect on the
willingness of individuals to engage in state-approved marijuana activities in Washington and
Colorado.
147 County of San Diego v. San Diego NORML, 165 CaL App. 4'h 798, 812 nJ (2008) ("this treaty is not self-
executing, aJld Counties do not explain how tlle treaty lends any added weight to the preemption questions presented
here").
IJ8 For a potential exception to the general proposition that non-self-executing treatles do not have preemptive effect
see, Safety Nat') Cas. Corp. v. Certain Underwriters at Lloyd's, London, 587 f.3d 714 (5'h Cir. 2009). In that case, a
federal appellate court gave preemptive dTectto an "implemented non-self-execuling treaty," For a detailed discllssion
of the issue, see Leonie W. Huang, Which Trealies Reign Supreme? The Donnan! Supremacy Clause Effeci of
Implemented Non-Self-Execulillg Treaties, 79 fORl)HAM L. ReV. 2211 (20 II). Additional questions relating to state and
federal obl!gallons under 1l1ese international drug conlroltreaties, including the coosequences of any deviation from
international obligations, are beyoIld the scope of tlus report.
149 Phi) Maltingly, Marijualla Slate Law Response PlaNned 500n, Holder Tells Panel, BLOOMBERG, March 6, 2013, at
hUp:! /www hloomherg comlnews120 -lei Is-panel. hIm L
150 United Slates v. Goodwin, 457 U.S. 368, 380 (1982).
151 Wayte v. United States, 470 U.S. 598, 607 (1985).
RJN P. 281
Sta te Legll/izatioll of Recreatiollal Man;uallfl.: A Legal Allallfs;s
Through the exercise of prosecutorial discretion, the DO] is free to develop a policy outlining
what marijuana-related activities will receive the most attention from federal authorities. For
example, in 2009 Deputy Attorney General David W. Ogden provided guidance to federal
prosecutors in states that have authorized the use of medical marijuana.
152
Citing a desire to make
"efficient and rational use of its limited investigative and prosecutorial resources," the
memorandum stated that while the "prosecution of significant traffickers of illegal drugs,
including marijuana ... continues to be a core priority," federal prosecutors "should not focus
federal resources [] 011 individuals whose actions are in clear and unambiguous compliance with
existing state laws providing for the medical use of marijuana."lS) The memorandum made clear,
however, that "this guidance [does not] preclude investigation or prosecution, even where there is
clear and unambiguous compliance with existing state law, in particular circumstances where
investigation or prosecution otherwise serves important federal interests."l54 The DO] released a
subsequent memorandum two years later drawing a clear distinction between the potential
prosecutions of individual patients who require marijuana in the course of medical treatment and
"commercial" dispensaries. 155 After noting that several jurisdictions had recently "enacted
legislation to authorize multiple large-scale, privately operated industrial marijuana cultivation
centers," the DO] stated that
The Ogdell memorandum w ~ s never illtended to shield such actlvllies frOID federal
enforcement action and prosecution, even where those activities purport to comply with state
law. Persons who are in the business of cultivating, selling or distributing marijuana, and
those who knowingly facilitate such activities, are in violation of the [CSA) regardless of
state law. Consistent with resource constrainlS and the discretioo you may exercise in your
district, such perSOllS are subject to federal enforcement action, including potential
proseculion.
156
The DO] may provide similar guidance to U.S. Attorneys within Washington and Colorado. The
department could react strongly to the new laws, and encourage U.S. At10meys to prosecute any
violation of the CSA-including possession by individuals, distribution by marijuana retailers,
and cultivation by marijuana producers. Although the DOJ may adopt this approach, as a practical
matter, the federal government simply does not currently have the resources necessary to robustly
enforce federal drug laws without the assistance of state authorities. Indeed, approximately 99%
of drug offenses are prosecuted under state law by state authorities. Therefore, if a decision were
made to increase the frequency of federal prosecutions in order to enforce federal law, new
resources would likely be nccded by the FBI, DEA, and thc U.S. Attorncys. On the other end of
the spectrum, the DO] could simply defer to the state policy and halt prosecutions for violations
of the CSA in Washington and Colorado, so long as the individual is in compliance with state law.
Such an action may be fraught with long-tenn risks and pose a threat to federal supremacy by
acknowledging that states are free to make policy decisions in direct conflict with [hose made at
the federal level.
Il2 Memorandum for selected U.S. Allomeys from David W. Ogden, Deputy Attorney General, Illvesligalions lind
Prosecutions ill Stales Authorizing the ,\;fedical Use 0/ Marijuana, October 19,2009 (heremafter Ogden Memorandum)
available a/ h! \p://www.jus!ice.gov/opaJtiocwnenls/medical.marijllana.pdf.
m Jd. al 1-2.
154 Jd. a13.
m Memorandum for U.S. Allomeys from lames M. Cole, Deputy Allorney General, Guidance Regarding the Ogden
Memo ill Jurisdictions Seeking to Allthorize Marijuana/or Medical Use, OClOber 19, 2009 (hereinafter Cole
Memorandum).
156 Jd. al 2.
RJN P. 282
Perhaps the most likely approach, however, is one that reflec(s the DOl's position on medical
marijuana and adopts the middle ground between the robust enforcement offederallaw and full
deference to the state policies. Such an approach would likely focus prosecutions on those
engaged in the large scale cultivation, distribution, or sale of marijuana, while overlooking
individual possession of marijuana in compliance with state law. Although recognizing that the
conduct remains a violation of federal law, the DO] could make clear that prosecuting individuals
for simple possession is not an agency priority. In conjunction with this approach, the DO] may
also warn marijuana producers, processors, and retailers about their potential to face asset
forfeiture proceedings or criminal prosecution, in the hope that the facilities will voluntarily cease
operation.
Forfeiture
Either in addition to, or in lieu of bringing criminal prosecutions, the DO] may choose to rely
more heavily on the civil forfeiture provisions of the CSA in order to disrupt the operation of
marijuana dispensaries and production facilities. Forfeirure is a penalty associated with a
particular crime in which property is confiscated or otherwise divested from the owner and
forfeited to the government, in accordance with constitutionally required due process
procedures.
157
Property forfeiture is used both to enforce criminal laws and to deter crime.
Forfeitures are classified as civil or criminal depending on the nature of the judicial procedure
which ends in confiscation. Civil forfeiture is ordinarily the product of a civil, in rem (against the
property) proceeding in which the property is treated as the offender. No criminal charges are
necessary against the owner because the guilt or innocence of the property owner is irrelevant; it
is enough that the property was involved in, or otherwise connected to, an illegal activity (in
which forfeiture is authorized). Criminal forfeiture proceedings, on the other hand, are in
personam (against the person) actions, and confiscation is only possible upon the conviction of
the owner of the property and only to the extent of the defendant's interest in the property. ISS
Property that is subject to forfeiture includes both the direct and indirect proceeds of illegal
activities as well as any property used, or intended to be used, to facilitate that crime. 159
Section 511 of the CSA (21 USc. 881) makes a wide array of property associated with
violations of the CSA subject to seizure by the Attorney General and forfeiture to the United
States. Property subject to the CSA's civil forfeiture provision includes any controlled substance
that has been manufactured, distributed, dispensed, acquired, or possessed in violation of federal
law, as well as any equipment, firearm, money, mode of transportation, or real property used or
Intended to be used to facilitate a violation of the CSA.160 In order to seize the covered property,
the government need only show that the property is subject to forfeiture by a preponderance of
the evidence.
161
Once forfeited, the Attorney General may destroy the controlled substances
117 U.S. CONST. amend. V ("No person shall ... be deprived of ... property, without due process of law .. ").
m ror a more extensive discussion of forfeiture generally, Jee CRS Report 97-139, Crime and Foifeilllre, by Charles
Doyle,
H9 See, e.g., 21 U.S.C. 881 (a)(6) (proceeds), and 21 USC 881(a)(2) (products and equipment used to facilitate the
ofTense).
160 2 J U.S,c. 881(a) (emphasis added).
161 18 U.S.c. 981(b).
RJN P. 283
seized, and sell the other property at public auction.
'62
After expenses of the forfeiture proceeding
are recouped, excess funds are forwarded [0 the DO] Asset Forfeiture F n d . ' 6 ~
Forfeiture proceedings are generally less resource intensive than a criminal prosecution and have
been used in the past against medical marijuana dispensaries. 1M In practice, the DOJ would be
able to seize and liquidate property, both real and personal, associated with marijuana production
distribution and retail sale facilities operating in Colorado and Washington w'ithout bringing any
criminal action. As explained above, a civil asset forfeiture proceeding is a civil proceeding
against the property in question. Although an interested party may object to the seizure, given that
such facilities are in clear violation of federal law, so long as the property is indeed being used for
marijuana-related activities, it would appear unlikely that many successful challenges to these
actions could be waged.
16S
Civil Lawsuit
The broadest single action the DOJ could take to prevent the implementation of the Colorado and
Washington laws would be to directly challenge the laws in federal court on the grounds that they
are preempted by federallaw.
166
Procedurally speaking, this lawsuit would look very much like
the federal government's recent challenge of a controversial Arizona inunigration law.
'67
If the
federal government chose to file such a claim, and a federal court were to reach the merits, the
court would likely be forced to directly confront the preemption issues identified in the previous
sections.
Additional Legal Consequences of Marijuana Use
Given the Obama Administration's infonnal st.:1tements and current approach to medical
marijuana, it would appear unlikely that the DO) is going to expend significant resources to
investigate and prosecute individuals who merely possess and use less than one ounce of
marijuana, in private, pursuant to Washington or Colorado law. However, even if the probability
of becoming the subject of a federal criminal prosecution for a violation of the CSA appears
remote, there does exist a number of other consequences under federal law that are triggered by
the mere use of marij uana, even absent an arrest or conviction. Perhaps most prominent among
162
2\ U.S.c. 8SI(e).
16.3 21 U.S.c. 881 (e).
1M See, e.g., U.S. Dep't of Justice, Press Release: Federal Awhorilies Take Enforcemenl Aelions AgaillSt COlllmercial
Marij/lana Siores in Orange COl/nly Cilies of Anaheim and La Habra, August 21,2012, available 01
hllp:llwww.jllstice.gov/usao/caciPressroom/2012l\ II.htmL
165 See David Downs, City o/Oakland Loses Lawsuit Against Departmenl 0/ Justice; HarborSIde FOifeilure Case
Proceeds, February 15,2013, East Bay Express, avai/able [i/ hUp:llwww.eastbayexpress.com/LegalizalionNationl
archi ves120 I 3102/1 5Jcit y-of-oakland-loses-Iawsu it -against-depanment -of-j ustice-harborside-forfeilure-case-proceeds
(describing how a federal magistrate judge dismissed the City of Oakland's lawsuit against Allomey General Eric
Holder and U.S. Allomey Melinda Haag, which sought to prevent Haag from seizing the building leased by Harborside
Health Center, OJle ofllle world's largest medical marijuana dispeusaries. TIle judge held that only Ihe dispensary aud
its landlords have legal standing to challenge Ille U.S. government's allempted seizure of the properly.).
166 A group of former DEA administrators have reportedly advocated for ulis action. See, Michael Tam!., Ex-DEA
Heads, UN Panel Urge u.s. to Nulli/y Pot Laws, Associated Press, March 5, 2013.
167 AriZona v. Unile<! Stales, 132 S. CL 2492 (20 \2).
RJN P. 284
these concerns is the possibility that marijuana users may lose their ability to purchase and
possess a fireann, be barred from living in public housing, or find themselves subject to
employment consequences in the workplace.
Under the Gun Control Act, it is unlawful to possess, ship, transport, receive, or dispose of any
firearm or ammunition to any person "who is an unlawful user of or addicted to any controlled
substance" as defined by the CSA.168 Federal regulation defmes an "unlawful user" or addict of a
controlled substance as one who "has lost the power of self-control with reference to the
controlled substance; and any person who is a current user of a controlled substance in a manner
other than as prescribed by a licensed physician.,,]69 Furthermore, a person may be considered an
unlawful user even if he is not using the substance at the precise time the person seeks to acquire
a firearm or receives or possesses a firearm. However, after state laws regarding medical
marijuana were enacted, the Bureau of Alcohol, Tobacco Firearms, and Explosives (ATF) issued
an open norice stating that "any person who uses or is addicted to marijuana, regardless of
whether his or her State has passed legislation authorizing marijuana use for medicinal purposes,
is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from
possessing firearms or ammunition.',17o These individuals are to answer "yes" when asked on the
firearms transfer form if they are unlawful users of a controlled substance. With the legalization
of marijuana for recreational purposes in Colorado and Washington, it seems likely the ATF will
take the same approach and consider a recreational user of marijuana to be a prohibited possessor
of firearms regardless of whether the use is lawful under state provisions.
In addition to potentially losing the ability to purchase and possess a firearm, federal law also
establishes that "illegal drug users" are ineligible for federally assisted housing.17I 42 U .S.c.
13661 and 13662 require public housing agencies and owners offederally assisted housing to
establish standards that would allow the agency or owner lo prohibit admissiun to, or terminate
the tenancy or assistance of, any applicant or tenant. An agency or an owner can take these
actions if a detennination is made, pursuant to the standards established, that an individual is
"illegally using a controlled substance," or if there is reasonable cause to believe that an
individual has a "pattern of illegal use" of a controlled substance that could "interfere with the
health, safety, or right to a peaceful enjoyment of the premises by other residents.,,172 Under
federal law, marijuana remains a controlled substance, thus, it would appear that any individual
who the housing authority reasonably believes is using marijuana could be derued access to, or
evicted from, federally assisted housing. With respect to medical marijuana, the Department of
Housing and Urban Development previously concluded that public housing agencies or owners
"must deny admission" to applicants who are using medical marijuana, but "have statutorily-
authorized discretion with respect to evicting or refrairung from evicting currenl residents on
account of their use of medical rnarijuana.,,173
168 18 v.s.c. 922(g)(3).
169
27 C.F.R. 47S.II.
110 See, Open Lener to All Federal Fireann Licenserg, September 21,20 II, available al hrrp:llwww.atfgovlfilesfpressf
releasesf20 11/09/092611-atf-open-letter-to-all-ffis-marijualla-for-medicmaI-purposes.pdf.
IJI 42 USc. 13661-13662.
IJ2 Jd.
17) See, Memorandum from Helen R. Kanoovsky, Medical Use of Manjuana and Reasonable Accommodation III
Federal Public and Assisted Housing, January 20, 2011, available at htlp:llwww.scribd.comJdoC/47657807!HUD-
policy-Metno-on-MedicaJ-Marijuana-in-Public-Housing.
RJN P. 285
Stn te Legll/izntioll of Recreatiollal Man;uallfl.: A Legal Allalvs;s
Some employers may face the loss of federal funding or could be subject to administrative fines if
they do not maintain and enforce policies aimed at achieving a drug-free, safe workplace. The
federal Drug-Free Workplace Act of 1988 (DFWA)174 imposes a drug-free workplace requirement
on any entity that receives federal contracts with a value of more than $100,000 or that receives
any federal grant.
175
DFWA requires these entities to make ongoing, good faith efforts to comply
with the drug-free workplace requirement in order to qualify, and remain eligible, for federal
funds.
176
Employees who work for federal contractors and grantees could potentially be subject to
employer discipline or even termination if they use marijuana while on the job or show up for
work under the influence of marij uana, even if tbe marijuana use is permitted by state law, as
such usage may create risks to others' safety.ln (Similarly, the Drug-Free Schools and
Communities Act Amendment of 1989
178
renders any institution of higher education ineligible for
federal funding if it fails to establish and implement a program to prevent the abuse of illicit
drugs by students and employees on campus grounds.) In addition, employers under the
jurisdiction of the Occupational Safety and Health Administration have a general duty to provide
to their employees a safe workplace under the Occupational Safety and Health ACt.
179
An
employee who uses marijuana at work may be considered a workplace hazard ifhe or she poses a
danger to other workers; employers thus risk administrative fines if they do not enforce policies
that seek to avoid such a hazard.
Congressional Response
Several bills concerning marijuana have been introduced that reflect different approaches in
response to the state legalization initiatives.
H.R. 499, Ending Federal Marijuana Prohibition Act of 2013. This bill would direCT the
Attorney General to issue a final order, within 60 days of the bill's enactment, that entirely
17441 U,S.C. 70l el seq.
17$ US. Dept of Labor, Dnlg-Frcc Workplacc Aci 0/1988 RequiJ'ClIICIJlS, availablc a/ hltpj/www.doLgov/e1aws/asp/
drugfree/screenr.hlm.
176 nlere are slightly different requirements for individuals and organizations lhal receive rederal contracts or grants.
See U.S, Dept. orLabor, Dl7lg-Free Workplace ACI 0/1988 ReqUirements/or Individllals, aValloble of
hltp://www.doLgov/elaws/asp/drugfree/retLind.htm ("Any IIldividual who receives a contract or granl from the Federal
government, regardless of dollar value, must agree not to engage in the unlawful manufacture, distribulion,
dispensation, possession or use of a controlled substance in the penomlance of this contract/grant"), and U.S. Dept. of
Labor, Drllg-Free WorAplace Act 0/1988 ReqUirements/or Organizaliolls, available ot nl'tp:l/www.doLgov/claws/asp/
dmgfree/require.htrn ("All organizations covered by the Drug-Free Workplace Act of 1988 are required to provide a
drug-free workplace by ... [publishing] and [giving] a policy statement to all covered employees inronning them thal
the wllawful manuracture, distribution, dispensation, possession or use or a controlled substance is prohibited in the
covered workplace and specifying tbe actions Ihat \\,111 be taken againsl employees who violate llle policy).
IJ7 Several slate supreme courts have upheld the right of employers to discharge, or refuse 10 lllfe, employees who
engage in medical marijuana use, even ir such usage is allowed by state law. See, e.g., Roe v. IeleIech Customer Care
MgmL (Colo.), LLC, 257 P Jd 586 (\Vash. 20 [ I) (holding that the Washington State Medical Use of Marijuana Act
does nOI prohibit an employer from firing an employee ror physician-approved medical marijuana use). In addilion,
slate supreme courts have ruled thai employers are not required 10 accowmodate lhe use of marijuana iD tlle workplace.
See, e.g., Ross v. RagmgWire Telecommunications, Inc., 1 i4 P.3d 200 (CaL 2008) OlOlding Ihal notlling in llle text or
legislative hJSlory or Calirornia's Compassionate Use Act creates a duty on Ihe part of employers 10 accommodate
marijuana use by employees); Emerald Steel Fabricators, Tnc. v. Bureau of Labor and Industries, 230 P.Jd 5 [8 (Or.
20 10) (holding lhal emp loyers have no oh to accommodale medical marijuana u<;c)
118 P.L. 105-244, codified at 20 U.S.c. 10[ Ii.
119 29 U,S,c. 651 et seq.
RJN P. 286
removes marijuana from any CSA scbedule.
18o
In addition, the bill would amend the CSA by
adding a new Section 103 that declares that no provision of the CSA shall apply to marijuana,
with the following new exception: shipping or transporting marijuana from anywhere outside a
jurisdiction of the United States into such a jurisdiction where marijuana use, possession, or sale
is prohibited.
181
The bill would make confonning amendments to the CSA as well as other
sections of the Us. Code to expressly remove the word "marijuana" or "marihuana" from various
penalty, enforcement, and definition provisions.
181
The bill also would amend the Federal Alcohol
Administration Act
l83
to create a new section entitled "Unlawful Businesses Without Marijuana
Permit."IS4 This section would make it unlawful to engage in importing, shipping, or s e l l i ~ g
marijuana in interstate or foreign commerce, or cultivating, producing, manufacturing, packaging,
or warehousing marijuana, without a permit issued by the Secretary of the Treasury. The criminal
fine for persons engaging in such activity without a permit would be not more [han $1,000,
although the Secretary would be allowed to collect a payment from the violator of up to $500 in
lieu of referring the violation to the Attorney General for prosecution. The Secretary would have
to follow specific eligibility criteria set forth in the bill in selecting applicants for a marijuana
business permit and the Secretary would also be required to establish a reasonable permit fee to
cover the cost of implementing and overseeing all aspects of federal regulation of marij uana.
Finally, the bill would grant the Food and Drug Administration the same authorities with respect
to marijuana as it has with respect to alcohol,185 and would transfer all current functions of the
DEAAdministrator relating to marijuana enforcement to the Director of the Bureau of Alcohol,
Tobacco, Fireanns and Explosives.1
86
H.R. 501, Marijuana Tax Equity Act of 2013. This bill would amend the Internal Revenue Code
to impose an excise tax on the sale of marijuana by the producer or importer of the drug,
equivalent to 50 percent of the price for which it was sold.
ls7
In addition, the bill would require
anyone engaged in a "marijuana emerprise"lss [0 pay an occupational tax in the amount of $1,000
per year (for producers, importers, or manufacturers of marijuana), or $500 per year (for
distributors, retailers, or anyone who transports, stores, or displays marijuana products). 189 The
bill would require all individuals, prior to commencing business as a marijuana enterprise, to
obtain a permit from the Secretary of the Treasury.19o Finally, the bill would impose civil and
criminal penalties for violation of the duty to pay the new taxes regarding marijuana as well as
engaging in business as a marijuana enterprise without obtaining the requisite permit. 191
ISO HR 499, \0 I (a).
181 !d. 102.
182 Jd. 103.
IS3 27 USc. 201 et seq.
18-1 Jd. 20 I, adding new 27 U.S.c. 30 l.
18; Jd. 30 I.
186 Jd. 302.
IS7 1_IK SOl, 2(a), adding new 26 U.S.c. 590L
ISS TIle bill defines "marijuana enterprise" as a producer, importer, manufacturer, distributor, relailer. or any person
who Iran sports, stores, displays, or otherwise participates in any business activity tbat handles marijuana or marijuana
producls. Jd. 2(a), adding new 26 U.S.c. 5904(8).
1li'J [d. 2(a), adding new 26 U.S.C. 591 L
1901d. 2(a), adding new 26 U.S.c. 59J2.
191 Jd. 2(a), adding new 26 USc. 5921, 5922.
COllgl'essiollal Research Service 27
RJN P. 287
".R. 689, States' Medical Marijuana Patient Protection Act. This bill would direct the Secretary
of Health and Human Services, in cooperation with the National Academy of Sciences' Institute
of Medicine, to submit to the DEA Administrator a recommendation on the scheduling of
marijuana within the CSA, although the bill precludes the Secretary from selecting either
Schedule I or II. 192 The Secretary would be required to issue such recommendation within 180
days of the enactment of the bill, and the DEA administrator would need to issue a proposed
rulemaking for the rescheduling of marijuana in accordance with the recommendation within a
year of enactment of the bil1.
193
The legislation declares that no provision of the CSA, nor any
provision of the Federal Food, Drug, and Cosmetic Act,194 shall prohibit or otherwise restrict in a
state where the medical use of marijuana is lawful under state law, the production, prescription,
transportation, distribution, possession, or use of marijuana for medical use.
19S
Finally, the bill
would require the Attorney General, within 180 days of the bill's enactment, to transfer control
over access to marijuana for research purposes (currently the responsibility of the National
Institute on Drug Abuse, a component of the National Institutes of Health, U.S. Department of
Health and Human Services) to an Executive Branch entity "that is not focused on researching the
addictive properties ofsubstances."l96 The bill would require such entity to "take appropriate
actions to ensure that an adequate supply of marijuana is available for therapeutic and medicinal
research." 197
H.R, 710, Truth ill Trials Act. This bill would amend the federal criminal code (Title 18 of the
Us. Code) to provide an affinnative defense for conduct regarding the medical use of marijuana
in a prosecution or proceeding for any marijuana-related offense under any federal law.
Individuals asserting such defense must establish, by a preponderance of the evidence, that their
marijuana-related activities were conducted in compliance with state law regarding medical use
ofmarijuana.
198
The bill would require that any property seized by the govenunent in connection
with such prosecution or proceeding be returned (0 the owner within 10 days of the court finding
that the owner has established a valid affirmative defense.
199
Finally, the bill would permit a court
to hold liable for the marijuana-related offense a defendant who has engaged primarily, but not
exclusively, in medical marijuana activities, only with respect to the amount of marijuana that
was used for nonmedical purposes.
200
H.R. 784, States' Medical Marijuana Propel1y Rights ProtectiolJ Act. This bill would amend the
civil forfeiture provisions of the CSA 201 to provide that no real property may be subject to civil
forfeiture to the United States due to medical marijuana-related activities that are performed in
compliance with state law.
202
192 J-LIt 689, 2(a)(l).
19) Id. 2(a)(2).
194
2\ V.S.C 301 el seq.
195 H.R. 689, 2(b), (3).
1% Id. 4.
1971d.
198 HR 710, 2(a), adding new 18 U.S.C 3436(a), (b)(l).
199 Id. 2(a), adding new 18 USC 3436(c).
200/d. 2(a), adding new IS U.S.C. 3436(b)(2).
201 2! V,S,C 881.
202 HR 784, 3, amending section 511(a) ofllle CSA (21 L.S.C 881 (a)(7.
COllgI'essioJl(J1 Research Service 28
RJN P. 288
".R. 964, Respect States' and Citizens' Rights Act of 2013. This bill would amend the CSA's
preemption provision, Section 708 (codified at 21 U.S.c. 903), to provide a specific rule of
construction pertaining to state marijuana laws: that no provision of the CSA shall be construed
as-(l) indicating an intent on the part of Congress to occupy the field in wruch that provision
operates, including criminal penalties, to the exclusion of state law regarding marijuana, or (2)
. h I 201
preemptmg any suc state aW. -
Author Contact Information
Todd Garvey
tgarvey@crs.loc.gov, 7-0174
Brian T. Yeh
Legislative At10mey
byeh@crs.loc.gov, 7-51&2
20) [-LR_ 964, 2. amending Section 708 or the CSA (2\ USc. 903)_
COlIg,-essiollal Research Service 29
RJN P. 289
EXHIBIT 31
RJN P. 290
Congress. 2d Sessien
- Report No. 91-14 (Part 1)
COMPREHENSIVE DRUG ABUSE
PREVENTION AND CONTROL
ACT OF 1970
REPORT
OF TIlE
COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE
HOUSE OF REPRESENTATIVES
TOGC'TUf-:R WITH
!NDIVIDUAL VIE\VS
TO Al'o."\
H.R. 18583
A BILL TO AMEND THE PUBLIC HEALTH SERVICE ACT
.'ND OTHER LA. WS TO PROVIDE INCREASED RE-
SEARCH INTO. AND PREVENTION OFt DRUG AlJUSE
AND DRUG DEPENDENCE; TO PROVlDE FOR TREAT-
A!'lD OF DRUG ABUSERS AND
DRUG DEPENDENT PERSONS; AND TO STRENGTHEN'
LAW ENFORCEMENT AUTHORITY IN THE
FIELD OF DRUG ABUSE
10, 19iO.-Committed to the CommiUeeof the Who!e House
on the State of the Union &nd ordered to be printed
U.S. COVERNNENT PlUNTJ:\G OFFICE
: mo
592
RJN P. 291
..
I 91ST CoXOIlSS} HOeS:E OF REPUES:EX1',A'11 rES {REno 91 - 14.44
I' __ ___
COlIPREHEXSIVE DReG ABUSE PREVENTIOX AXD
CONTROL ACT OF 1970
SU'I"lUO 10, 19.0.-Committed to the CODlmltlt.-e or till' uu tile-
State of Ulc Union :uul ordered to be llrinh.'d
lIr. STAOODtB, from the Committee on Interstate and Foreign
Conuncrcc, submitted following
REPORT
[To n.n.. 1S5S3]
Tho Committee on and Foreign to w110m was
the bill (H.R. 18583) to the Public Hcnlth Sen'ice
.\ct and other laws to prO\'idc increased rese:uch into, and
of, llnlg' IlblL"C Rnd druq- dependence: to proyidc for amII"('
habilitation of onlg nOllscrs and dnlg dependent persons; and to
strengthen }:LW authoritv in the ficld of dnlg
alJII:-'c, hadng cUIl:'H1L'I'Cll .--:UlIC. !"('port. fH\()\.lbh tilt'I'eon with :1I1
:\Il\cll(hncnt :\luI rccollullcnd tlrat. the bill as :\lI\cllc]c<t"do pnss.
Tho ilmt'lI(lnWllf loot ri Ollt It II a nt'lo the ('.!1:It"t i n!! c n 11,1 l11:-:(>rts
a lIew text, winch lS sct forth 111 It:. he m the reported bill.
PRlxCIr.u. PURr'OSF. O}-' TIrF. Rru.
Th is legislntion i:Hle. ... ianed to deal ill :1 cUlUlu'('lu.'u:-i\(\ fa:-1. ion \\ it It
the menace of dnlg nbusc in the l.""nitcd Stntcs (1) through
pro\'iding autllority for increased CfTOl'tS in drug abuse pre\'cntion
and rchnbilitntion of users, through prodfling more
means for la\V cnforcement nspects of drug Abuse pre\'cntion and
control, and (3) by pro\'iding for n!\ o\'crnll baJ!\nccd scheme of
criminal pcnlLitics for offcnses iJl\'ol ving drugs.

Titles I nnd II of rcpot1e<1 bill were the subj('Ct. of
!.>clore tho Subcommitteo on Public Henlth and \rcHIlTe on FeLman
:1,4, 17, 18, 19,20,25,26, Ilnd 2;, nn<l on 2 nnll ;1,19;0. Following
, the hcnrings, tho subconunittco considered tho proposals
(.)
593
RJN P. 292
"
2
.
before it ,during a total of 37 c:c:ceuth"c as a ,result whi<:Jl
a clean bill (RA was mtroduced mcorporatmg reVlSlons In
the legislation before the subcommittee,
The legidntioll was further considered jn before
the full 11ltcrstnte and ForeigTl Committee 011 S
and titles I and II were ordered. reported to the House Ulumimollsl,' Oil
AUgust l-i, 1970, together with title III incorporated in the hill jUlr-
suant to action of the '\\a\-s Rnd .l[e:ms (us indic.:tt('d
... "j;l ' 'd" I " Z I ' . 1
.L<I"<OfjQ ahon pro,') mg nw nut III t 1('
field of drug abuse was transmitted to the Congress b.y the President
on July 14, 1969, Because the proposed legjsl&tion repeals the tax laws
and ollier la.m; Wlder the juriSdiction of the Conunittoo on Wa\-s and
used to control narcotic drugs, the Presidents message was at
first referred to the Committee on and Means. Howc,'er, because
the legislation also deals with dnlgs regulated under the
Federal Food, and Cosmetic Act, the legislation was
ditided into two bills, H.R. 13742 (referrro to the Committee on Ways
and .l{cans) and lI.R. 13743 (referred to thc Committee on Interstate
and Foreign Commerce). Tho two bills were, in general, identical:
e3:cept with respect to the drugs co\'crcd by their pro\oisions, with
lLR. 137-12 being limited to narcotic dnlgs and marihmma (I'eg!llated
today under the Intcrnal RC\'enuo Code of 1954 and other Acts), and
!LR. 13143 being to drugs todny regulated the Federal
Food, Drug, nnd Act.
HCllring5 were held on H.R. 13H2 and H.R. li-t();} (a hill comhilling
the prodsions of H.R. nnd H.R. 137'43) on .. July 20. 21. 2-2, 2:i:
amI Thcreaftcr the Committee on " .. and lfc.ans dccidt:'d to con,
sider onh' thc prO\-isions relating to imPorts ml<l t:xports of nnl"cotic
dl'lb,rs, m:uihIlRU:l, and depressant and stimulant dnlgs rand rc:om
mended to t hc InterStnte and Foreign Commerce all
:\Illcndllumt to n.R. lS:iS:; which is illcorpol'lltcd ill biB as title III
thereof. The bill is based upon thc prodsions of th(' legisla-
tion heretofore with the form in wl,ich tl,c biB is
lx-ing' to the jllrisdictioll of ""':1)'s :llltl
COlllmittee O\-er future :lnlCndmcllt:-> to this \'eluting to illl'
and exports of hy the hill,. -
I -y 1)('t\\"l'C1l tlJ(' :lIld FOl"el!!ll \OmmCILc Com,
mit ft\(, ilnd the ""':n"!-o a 1111 ('ollullitt('('. t hc (oi'lIlcl' cOllunittcc will
llnd h:l\"c jlu-is<1idioll ()\'cr tith'S I nnd 11 of the l'CI>orted hill.
and th(' 11\U('I' will h:\llI11c- fl1\(1 lIn\ '- j .. ris(lictioll o\'cr title III of tllC
hill. as set f011h in th(' following lcttCl' fmlll Chainman to
Chuinu:m
I'rI'n: O:s' " ... \ .lfF_\ X$.
IIol"sE Of' Ih:l'nt:.sF.:s'T.\Tfn:s.
.. W(fs/dllfI1ou. D,C .. A llg!Oft I.ry/n,
lion. If.\lu.n' O.
('I",irm"". CommitLte (JIl /llIet.'tfafe and FOl'eiy)}, (}omrMrce.
Bmw: of .
n.:-\r. )[1:. :.In with prior und.crstnnding
l'e'latJ,-{, to Juns<11etlon O\'er the subJcct of na.rcotlc and dan,
g..-rons drng }('gislntion, this letter is to ad\'isc '"OU that tliC Committee I
594

RJN P. 293

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