James v. City of Costa Mesa, __ F.3d ___ (2012); 2012 U.S. App. LEXIS 10168.
Jones & Mayer was successful in urging the Ninth Circuit Court of Appeals to affirm the denial of a preliminary injunction against the enforcement of the City of Costa Mesa’s prohibition of medical marijuana dispensaries in James v. City of Costa Mesa (James I). On May 21, 2012, the Ninth Circuit issued a published opinion, which held that the Americans with Disabilities Act (ADA) does not protect medical marijuana users, because their use falls within an unprotected exception to the ADA relating to the “illegal use of drugs.” The District Court had initially denied a preliminary injunction requested by the plaintiff patients, and that denial was upheld on appeal.
Jones & Mayer acts as the City Attorney for the City of Costa Mesa. In 2005, the City enacted a zoning prohibition against medical marijuana dispensaries throughout the City. The primary plaintiff in this action was Marla James, who claims she is a severely disabled individual under the ADA, and a “qualified patient” under California’s medical marijuana laws; the other plaintiffs claimed they were similarly situated. Plaintiffs obtained their medical marijuana from various dispensaries in Costa Mesa and Lake Forest. When the cities began taking enforcement actions against the dispensaries from which plaintiffs obtained their medical marijuana, the plaintiffs filed suit against both cities, claiming that their alleged ADA-protected status entitled them to obtain medical marijuana from dispensaries without interference from cities.
Jones & Mayer attorneys James R. Touchstone and Krista MacNevin Jee successfully urged the District Court to deny plaintiffs’ request to enjoin the cities of Costa Mesa and Lake Forest from local zoning enforcement actions. These attorneys continued to successfully defend this position when plaintiffs immediately appealed the denial of their request for a preliminary injunction to the Ninth Circuit Court of Appeals.
Plaintiffs primarily claimed that their use of medical marijuana, despite marijuana’s continuing status as an illegal drug for all purposes under the Federal Controlled Substances Act (CSA), was not an “illegal use of drugs,” and their use was thus protected by the ADA. The Ninth Circuit Court of Appeals invited the United States to submit an amicus curiae brief on the matter while their decision was pending; the United States submitted such brief and agreed with the cities that plaintiffs were not protected by the ADA, because their use of medical marijuana remained prohibited by the CSA.
Plaintiffs argued to the Ninth Circuit that the definition of “illegal use of drugs” under the ADA did not include “the use of a drug taken under supervision by a licensed health care professional,” 42 U.S.C. § 12210 (d)(1), and that their use of “medical” marijuana with a doctor recommendation under State law fell within this exception. The Ninth Circuit disagreed, and its decision came down in favor of the cities’ positions, that the definition of the “illegal use of drugs” under the ADA is not so broad as to include uses that are a violation of the CSA, even if permitted or tolerated by State law. The Court concluded that, in light of the text of the CSA and the “strong and longstanding” federal policy against marijuana for medical use, “doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.”
The Ninth Circuit also rejected Plaintiffs’ additional argument, which attempted to claim that another exception within Section 12210, relating to drugs “authorized by . . . other provisions of Federal law,” applied because of a District of Columbia initiative allowing medical marijuana use within the District. (This argument attempted to conflate Congress’ veto role over D.C. local legislation with Congress’ role as the Federal legislature.) The Court found that Congress did nothing more than decline “to stand in the way of D.C.’s efforts to suspend local penalties” for the medicinal use of marijuana, and that this inaction had no effect on existing Federal law – namely the CSA; the possession, cultivation and distribution of marijuana remains illegal under Federal law in both D.C. and California, despite the local initiatives in effect in each of these areas. Further, the Court held that there is no equal protection violation because, “[l]ocal decriminalization notwithstanding, the unambiguous federal prohibitions on medical marijuana use set forth in the CSA continue to apply equally in both jurisdictions, as does the ADA’s illegal drug exclusion.”
Plaintiffs have informally indicated that they will seek en banc review from the Ninth Circuit. No doubt they will also petition the United States Supreme Court for review.
After James I had already been argued to the Ninth Circuit, the James I plaintiffs unsuccessfully sought an injunction against the cities of Costa Mesa and Lake Forest, as well as the United States (which is not a party to James I) from the Ninth Circuit as to any enforcement of the CSA or cooperation between federal and local law enforcement. The Ninth Circuit denied the requested injunction, but invited the plaintiffs to file a separate action to seek such relief, particularly against the United States, which would need to be formally brought in as a party to the new action. Plaintiffs filed such action in the Central District Court, James v. United States (James II). Shortly after the Ninth Circuit issued its opinion in James I, the District Court denied completely the injunction sought by plaintiffs in James II, on some of the same grounds as stated in the opinion.
Jones & Mayer will continue to represent the City of Costa Mesa in both James I and James II, as well as remaining committed to all its clients and their various measures of local control over medical marijuana and dispensaries, even as this area of the law remains ever-changing.
In related matters, Jones & Mayer attorneys remain active in representing their city and law enforcement clients in all aspects of the still-developing area of medical marijuana law. Jones & Mayer attorneys Martin J. Mayer, Krista MacNevin Jee and Elena Q. Gerli are currently preparing an amicus curiae brief to the California Supreme Court on behalf of the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association in one of several medical marijuana cases for which the California Supreme Court recently granted review – Riverside v. Inland Empire Patient’s Health & Wellness Center, Inc.