The Medical Marihuana Program Is Not Preempted By The Federal Controlled Substances Act.

[Michael Komorn]

The Medical Marihuana Program is NOT preempted by the Federal Controlled Substances Act.

 

The Court of Appeal held that California's Compassionate Use Act and Medical Marijuana Program are NOT preempted by the federal Control Substances Act.

 

 

 

An important “semi” victory for patients in California, posted by our friend on from the NORML legal committee.

 

Finally . . . the decision we have all been waiting for: Our Court of Appeal in the Fourth Appellate District, Division Three in Santa Ana just filed the opinion in Qualified Patients Association v. City of Anaheim. First, congratulations to Anthony Curiale for his success! While it wasn't a total reversal and not all issues were decided, I would still consider it a victory. The Court of Appeal held that California's Compassionate Use Act and Medical Marijuana Program are NOT preempted by the federal Control Substances Act.

 

The court also affirmed the judgment below that plaintiffs could not state a cause of action under the Unruh Act, because it is aimed at "business establishments."

 

What is also significant about the opinion is that the Court stated, "We do not decide whether the CUA or the MMPA preempt the city's ordinance because we conclude the issue is not properly before us." It noted that the trial court's demurrer ruling does not refer to the MMPA, although it did cite Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920. The court also provided very useful information as to how it views City of Claremont v. Kruse and City of Corona v. Naulls, two cases that the cities/counties consistently rely upon. Finally, the court wrote, "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."

 

Several cases, including the Lake Forest appeals, will be heard by this Court and it will have an opportunity to address this issue. I would also anticipate that a petition for review to the California Supreme Court will be filed. You can read the opinion at http://www.courtinfo.ca.gov/opinions/documents/G040077.PDF.

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

800-656-3557 (Toll Free)

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If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

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[peanutbutter]

When was this?

 

tia

[Michael Komorn]

PENUTBUTTER,

I got the email yesterday at or around August 19, 2010 7:07:05 PM EDT

The Court of Appeal held that California's Compassionate Use Act and Medical Marijuana Program are NOT preempted by the federal Control Substances Act. It would seem that the local municipalities in our great state of Michigan could care less.

The ongoing argument even before this ruling was that the FCSA was intended to coexist with state medical marihuana laws. This ruling along with other recent California decision have been reinforcing this well established legal principal. Or what I want to call is a fundamental legal principal.

 

Michael A.  Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com 

Website: www.komornlaw.com

Check out our Radio show:http://www.blogtalkradio.com/planetgreentrees

NEW CALL IN NUMBER:  (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES  w/ Attorney Michael Komorn 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD. 

 If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 http://www.blogtalkradio.com/planetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626   

[peanutbutter]

That should help out with all these local government actions. The ones that use the Federal, State and local tact.

 

I remember a similar court of appeals case that was ruled that way also. I don't believe that one was accepted by the Supreme Court. It could, I would guess, be argued that the "wall" stops in California.

 

A US Supreme Court ruling would nicely seal in the current fed policy.

[Michael Komorn]

Good memory, who says that marihuana....

the case you remember is below. The case was a federal court of appeals case from a district in california. the conlcusion of that case, was the same as the one posted earlier, and the U.S. Supreme Court denied certiori, meaning they chose not to review or decide the case, and just leave it as it is. Sometime the decision to deny certiori, is interpreted by those who approve of the lower courts decsion as affirming the lower Court, some say it means nothing. I think these case are very important. The trends have been in states with Medical Marihuana acts, that once the voters approve of the law, the battles really begin with the local municipalities and cities. They argue Federal Law rules, and that state law is prempted. These 2 posted cases suggest they are wrong, or misguided. Whats more the loosely used statement that "well it is still illegal federally" will have less and less actaul value, as this very important, and in controversey, legal prinicipal is solidified. I have maintained that a close reading of the Federal Controlled Substance act, in the section regarding preemption, clearly indicates that the FCSA and the MMMMA can coexist without conflict.

 

here is that other case it had been posted earlier

I have the pleadings for this case, the briefs filed by the lawyers, there are some great arguments that help solidify this principal. If you remind me i will bring them to the radio show on wednessday.

 

U.S. Supreme Court: State Medical Marijuana Laws Not Preempted by Federal Law

 

Salem-News.com

Medical marijuana case appealed by the City of Garden Grove was denied review today.

 

 

U.S. Supreme Court building- the end of the line for legal matters in the United States of America.

Photo courtesy: britannica.com

 

(WASHINGTON, D.C.) - The U.S. Supreme Court refused to review a landmark decision today in which California state courts found that its medical marijuana law was not preempted by federal law.

 

The state appellate court decision from November 28th 2007, ruled that "it is not the job of the local police to enforce the federal drug laws."

 

The case, involving Felix Kha, a medical marijuana patient from Garden Grove, was the result of a wrongful seizure of medical marijuana by local police in June 2005.

 

Medical marijuana advocates hailed today's decision as a huge victory in clarifying law enforcement's obligation to uphold state law.

 

Advocates assert that better adherence to state medical marijuana laws by local police will result in fewer needless arrests and seizures.

 

In turn, this will allow for better implementation of medical marijuana laws not only in California, but also in Oregon and Washington and other states that have adopted such laws.

 

"It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the medical marijuana advocacy organization that represented the defendant Felix Kha in a case that the City of Garden Grove appealed to the U.S. Supreme Court.

 

"Perhaps, in the future local government will think twice about expending significant time and resources to defy a law that is overwhelmingly supported by the people of our state."

 

 

 

 

A clear example of a California law enforcement agency wasting large amounts of time and money trying to bring down a lawful medical marijuana dispensary owner, is found in the story of San Luis Obispo County Sheriff Pat Hedges, who brought in federal agents to bust a man for helping sick people in a way that was approved by his fellow California voters.

 

In fact it reads like a bad movie. (see Tim King's Salem-News.com article: Meet California's Lawless Sheriff)

 

California medical marijuana patient Felix Kha was pulled over by the Garden Grove Police Department and cited for possession of marijuana, despite Kha showing the officers proper documentation.

 

The charge against Kha was subsequently dismissed, with the Superior Court of Orange County issuing an order to return Kha's wrongfully seized 8 grams of medical marijuana.

 

The police, backed by the City of Garden Grove, refused to return Kha's medicine and the city appealed.

 

Before the 41-page decision was issued a year ago by California's Fourth District Court of Appeal, the California Attorney General filed a "friend of the court" brief on behalf of Kha's right to possess his medicine. The California Supreme Court then denied review in March.

 

"The source of local law enforcement's resistance to upholding state law is an outdated, harmful federal policy with regard to medical marijuana," said ASA spokesperson Kris Hermes.

 

"This should send a message to the federal government that it's time to establish a compassionate policy more consistent with the 13 states that have adopted medical marijuana laws."

 

Further information: Today's U.S. Supreme Court Order denying review: AmericansForSafeAccess.org/downloads/Kha_USSC.pdf Decision by the California Fourth Appellate District Court: AmericansForSafeAccess.org/downloads/GardenGroveDecision.pdf Felix Kha's return of property case: AmericansForSafeAccess.org/article.php?id=4412

 

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

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Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkradio.com/planetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkradio.com/planetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

[peanutbutter]

The return of marijuana, in the Kah case, by a federal court of appeals is a strong victory.

 

The fact that this recent case went our way also seems to give strength to the above case.

 

The Supreme Court refusing to consider the Kah case I agree seems to give additional support.

 

It would be best with a Supreme Court win in this area. It would end these moratoriums pretty quickly.

 

These folks need to ask themselves "what are we going to do when federal law is no longer applicable?"