Ord. 541 - City of Woodinville

Attachment A to Ordinance No. 541Planning Commission Public Hearing Staff Report - Exhibit 4Ogden Murphy Wallace Brief on Relevant California CasePack v. Superior Court, --- Cal.Rptr.3d -- (2011)199 Cal.App.4th 1070, 11 Cal. Daily Op. Serv. 12,643, 2011violate the federal CSA. In an amicus brief in support ofthe City, the California State Association of Counties andLeague of California Cities argue that the only individualsbeing required to distribute marijuana under this provisionare already violating the federal CSA by operating amedical marijuana collective. In other words, these amiciargue that this section of the ordinance "does not compelany person who does not desire to possess or distributemarijuana to do so." We find this argument unavailing.That a person desires to possess or distribute marijuana tosome degree (by operating a collective) does notnecessarily imply that the person is also desirous ofcommitting additional violations of the federal CSA (bydelivering the marijuana for testing). The City cannotcompel permitted collectives to distribute marijuana fortesting any more than it can compel a burglar to commitadditional acts of burglary. In this limited respect, conflictpreemption applies.27b. Obstacle Preemption21 Obstacle preemption arises when the challenged lawstands as an obstacle to the accomplishment andexecution of the full purposes and objectives of Congress.(Qualified Patients Assn. v. City of Anaheim, supra, 187Cal.App.4th at p. 760, 115 Cal..Rptr.3d 89.) "As amajority of the current United States Supreme Court hasagreed at one time or another, 'pre-emption analysis is not"[a] freewheeling judicial inquiry into whether a statestatute is in tension with federal objectives," [citation],but an inquiry into whether the ordinary meanings of stateand federal law conflict.' [Citations.]" (Viva! InternatVoice for Animals v. Adidas Promotional RetailOperations, Inc., supra, 41 Cal.4th at pp. 939-940, 63Cal.Rptr.3d 50, 162 P.3d 569.) If the federal act'soperation would be frustrated and its provisions refusedtheir natural effect by the operation of the state or locallaw, the latter must yield. (Qualified Patients Assn. v. Cityof Anaheim, supra, 187 Cal.App.4th at p. 760, 115Cal.R.ptr.3d 89.)22 The United States Supreme Court has already set forththe purposes of the federal CSA. As discussed above, themain objectives of the federal CSA are "combating drugabuse and controlling the legitimate and illegitimatetraffic in controlled substances," (Gonzales v. Oregon,supra, 546 U.S. at p. 250), with a particular concern ofpreventing "the diversion of drugs from legitimate toillicit channels." (Gonzales v. Raich, supra, 545 U.S. atpp. 12-13.)'11 23 For this reason, we disagree with our colleagueswho, in two other appellate opinions, have implied thatmedical marijuana laws might not pose an obstacle to theaccomplishment of the purposes of the federal CSACase Law - Exhibit 4Daily Journal D.A.R. 15,028because the purpose of the federal CSA is to combatrecreational drug use, not regulate a state's medicalpractices. (Qualified Patients Assn. v. City of Anaheim,supra, 187 Cal.App.4th at p. 760, 115 Cal.Rptr.3d 89;County of San Diego v. San Diego NORMI, supra, 165Cal.App.4th at p. 826, 81 Cal.Rptr.3d 461.) While thisstatement of the purpose of the federal CSA is technicallyaccurate,28 it is inapplicable in the context of medicalmarijuana. This is because, as far as Congress isconcerned, there is no such thing as medical marijuana.Congress has concluded that marijuana has no acceptedmedical use at all; it would not be on Schedule Iotherwise. (United States v. Oakland Cannabis Buyers'Cooperative, .supra, 532 U.S. at p. 491.) Thus, toCongress, all use of marijuana is recreational drug use,the combating of which is admittedly the core purpose ofthe federal CSA.29 This case presents the question ofwhether an ordinance which establishes a permit schemefor medical marijuana collectives stands as an obstacle tothe accomplishment of this purpose. We conclude that itdoes.24 25 There is a distinction, in law, between not makingan activity unlawful and making the activity lawful. Anactivity may be prohibited, neither prohibited norauthorized, or authorized. (Viva! Internat. Voice forAnimals v. Adidas Promotional Retail Operations, Inc.,supra, 41 Ca1.4th at p. 952, 63 Ca1.Rptr.3d 50, 162 P.3d569.) When an act is prohibited by federal law, but neitherprohibited nor authorized by state law, there is no obstaclepreemption. The state law does not present an obstacle toCongress's purposes simply by not criminalizing conductthat Congress has criminalized. For this reason, the CUAis not preempted under obstacle preemption.3o (City ofGarden Grove v. Superior Court, supra, 157 Cal.App.4that pp. 384-385, 68 Cal.Rptr.3d 656.) The CUA simplydecriminalizes (under state law) the possession andcultivation of medical marijuana (People v. Mower,supra, 28 Ca1.4th at p. 472, 122 Cal.Rptr.2d 326, 49 P,3d1067); it does not attempt to authorize the possession andcultivation of the drug (Ross v. RagingWireTelecommunications, Inc. (2008) 42 Cal.4th 920, 926, 70Cal.Rptr.3d 382, 174 P.3d 200).26 The City's ordinance, however, goes beyonddecriminalization into authorization. Upon payment of afee, and successful participation in a lottery, it providespermits to operate medical marijuana collectives. It thenimposes an annual fee for their continued operation in theCity. In other words, the City determines whichcollectives are permissible and which collectives are not,and collects fees as a condition of continued operation bythe permitted collectives. A law which "authorizes[individuals] to engage in conduct that the federal Actforbids ... 'stands as an obstacle to the accomplishmentand execution of the full purposes and objectives ofCongress' " and is therefore preempted. (Michigan)( dain to Nig ro! 14