united states court of appeals for the ninth circuit...

i

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________________________________________

No. 10-55769

_______________________________________________

**PRELIMINARY INJUNCTION APPEAL**

MARLA JAMES, WAYNE WASHINGTON,

JAMES ARMANTROUT, CHARLES DANIEL DeJONG,

Plaintiffs-Appellants,

v.

THE CITY OF COSTA MESA, CALIFORNIA, a city incorporated

under the laws of the State of California; THE CITY OF LAKE FOREST,

CALIFORNIA, a city incorporated under the laws of the

State of California,

Defendants-Appellees.

_________________________________________________

On appeal from an order of the District Court denying

Appellants‟ request for a preliminary injunction,

Central District of California, Honorable Andrew Guilford

No. SACV10-00402 AG (MLGx)

APPELLEE’S OPENING BRIEF

James R. Touchstone, Esq., SBN 184584

Krista MacNevin Jee, Esq., SBN 198650

Jones & Mayer

3777 North Harbor Boulevard

Fullerton, CA 92835

(714) 446-1400

Attorneys for Appellee, City of Costa Mesa

Case: 10-55769 07/21/2010 ID: 7413629 DktEntry: 15-1 Page: 1 of 54 (1 of 55)

i

TABLE OF CONTENTS

I. INTRODUCTION…………………………………………………………1

II. STANDARD OF REVIEW AND STATEMENT OF JURISDICTION….2

III. ISSUE STATEMENT……………………………………………………..2

IV. STATEMENT OF CASE………………………………………………….4

V. BACKGROUND FACTS………………………………………………….5

VI. SUMMARY OF ARGUMENTS………………………………………….8

VII. THE AMERICANS WITH DISABILITES ACT DOES NOT

PROTECT THE MEMBERS‟ ILLEGAL USE OF DRUGS……………..9

A. The ADA Does Not Protect the Illegal Use of Drugs………………9

1. This Court Has Previously Determined that the Provisions

of Section 12210 Do Not Apply to the Purported Medical

Use of Marijuana Pursuant to State Law…………………….10

2. A plain reading of Section 12210 reveals that the ADA is

not intended to protect the illegal use of drugs, which

includes all uses not permitted by the CSA or other federal

law…………………………………………………………….13

3. Principles of statutory construction support the District

Court‟s reading of Section 12210, as it harmonizes and

honors the purpose and meaning of both the ADA and

the CSA……………………………………………………….17

4. The law does not recognize any right to marijuana for

purported medical purposes…………………………………..23


ii

B. Even If the Court Were to Interpret Members‟ Illegal Drug Use as

Protected Under the ADA, No Reasonable Accommodation Can

Be Required of the City for Such Illegal Use Under the ADA……...26

VIII. THE DISTRICT OF COLUMBIA INITIATIVE ON MEDICAL

MARIJUANA DOES NOT AID THE PATIENTS‟ CLAIMS……………33

A. Initiative 59 is Not a Provision of “Other Federal Law” intended

to be Included Within Section 12210……………………………….33

B. Equal protection analysis does not permit members‟ illegal use of

marijuana, and does not require that initiative 59 be made to apply

throughout the United States………………………………………..38

IX. MEMBERS‟ REMAINING ARGUMENTS DO NOT SUPPORT

THEIR CLAIM OF A VIOLATION OF THE ADA………………………43

X. CONCLUSION…………………………………………………………….45

Certificate of Compliance…………………………………………………………47

Statement of No Related Cases…...………………………………………………48


iii

TABLE OF AUTHORITIES

FEDERAL CASES

Assenberg v. Anacortes Housing Auth., 268 Fed. Appx. 643

(9th Cir. 2008) ................................................................................................ 10, 32

Barber v. Gonzales, 2005 U.S. District LEXIS 37411

(E.D. Wash. 2005) .................................................................................... 11, 12, 32

Carter v. Welles-Bowen Realty, 553 F.3d 979, 985-986 (6th Cir. 2009) .............. 19

Christian Gospel Church, Inc. v. San Francisco, 896 F.2d 1221, 1225 (9th Cir.

1990) ................................................................................................................ 40

Circuit City Stores v. Adams, 532 U.S. 105 (2001) .............................................. 15

Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995) ...................... 28

County of Santa Cruz v. Ashcroft, 279 F. Supp. 2d 1192, n.7 1202 (N.D. Cal.

2003) ........................................................................................................... 21, 39

Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997) ............ 28

Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995) .......................... 29, 30

Doe v. Rumsfeld, 435 F.3d 980, 988 (9th Cir. 2006) ........................................... 17

Dovenmuehler v. St. Cloud Hospital, 509 F.3d 435 (8th Cir. 2007) ..................... 27

Edmonds v. Hammett (In re Estate of Covington), 450 F.3d 917, 922

(9th Cir. 2006) ..................................................................................................... 15

Evans v. UDR Inc., 644 F. Supp. 2d 675, 680 (E.D. N.C. 2009) ..................... 30, 31

FCC v. Beach Communications, 508 U.S. 307 (1993) ......................................... 38

Gonzales v. Raich, 545 U.S. 1, 13 (2005) ............................... 13, 20, 23, 24, 39, 45

Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940) ............................................. 19

Hughes Tool Co. v. Meier, 486 F.2d 593, 596 (10th Cir. 1973) ........................... 21

Kokoszka v. Belford, 417 U.S. 642, 650 (1974) ................................................... 19

Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). ........................... 39

Limited, Inc. v. C.I.R., 286 F.3d 324, 332 (6th Cir. 2007) ................................... 19

Louisiana Public Svc. Commission v. FCC, 476 U.S. 355, 370 (1986) ................ 18

Marijuana Policy Project v. United States, 304 F. 3d 82, 83 (D.C. Cir. 2002) ...... 34

McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008) .............................. 13

Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark LLC,


iv

214 F.3d 872, 875 (7th Cir. 2000) ........................................................................ 18

Muckway v. Craft, 789 F.2d 517, 523 (7th Cir. Ind. 1986) .................................. 40

Raich v. Gonzales, 500 F.3d 850, 864 (9th Cir. 2007) .......................................... 25

Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995) .................. 30

United States v. American Trucking Ass‟n., 310 U.S. 534, 543 (1940). .......... 16, 19

United States v. Hinckley, 550 F.3d 926, 934 (10th Cir. 2008) ............................ 17

United States v. Katz, 271 U.S. 354, 357 (1926). ................................................. 19

United States v. Lopez, 484 F. 3d 1186, 1194 (9th Cri. 2007) .............................. 19

United States v. Luna-Madellaga, 315 F.3d 1224, 1230 (9th Cir. 2003) (citing

United States v. Powell, 6 F.3d 611, 614 (9th Cir. 1993)). ................................... 16

United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491 (2001). 24, 39

United States v. Shirey, 359 U.S. 255, 260-61 (1959) .......................................... 18

Watt v. Alaska, 451 U.S. 259, 266-67 (1981) ...................................................... 22

STATE CASES

City of Claremont v. Kruse, 177 Cal. App 4th 1153 (2009) ................................. 24

City of Corona v. Naulls, 166 Cal. App. 4th 418, 429-30, 433 (2008) .................. 24

People ex rel. Lungren v. Peron, 50 Cal. App. 4th 1383, 1400 (1997) .................. 40

People v. Urziceanu, 132 Cal. App. 4th 747, 774 (2005). .................................... 40

Ross v. Ragingwire, 42 Cal. 4th 920 (2008) ........................................................ 40

FEDERAL STATUTES

21 U.S.C. §§ 801, et seq. ........................................................................................ 9

21 U.S.C. § 802 ................................................................................................... 22

21 U.S.C. § 812 .............................................................................................. 13, 45

21 U.S.C. § 823 ................................................................................................... 22

21 U.S.C. § 829 ................................................................................................... 21

21 U.S.C. § 872 ................................................................................................... 21

29 U.S.C. § 705 ................................................................................................... 11

42 U.S.C. §§ 3602 ................................................................................................ 11

42 U.S.C. § 12101, et seq. ..................................................................................... 1


v

42 U.S.C. § 12110 ................................................................................................ 13

42 U.S.C. § 12112 .................................................................................................. 9

42 U.S.C. § 12210 ......................................................................................... passim

FEDERAL REGULATIONS

21 C.F.R. § 1316.24 ............................................................................................. 21

38 C.F.R. § 3.352 ................................................................................................. 22

DISTRICT OF COLUMBIA REGULATIONS

57 D.C. REG. 3380, 3381 .................................................................................... 42

CONGRESSIONAL MATERIALS

111 H. Rpt. 202 .................................................................................................... 35

155 Cong. Rec. H. 8191 ....................................................................................... 36

155 Cong. Rec. H. 8205, 8210. ............................................................................ 37


1

TO THE HONORABLE CHIEF JUDGE ALEX KOZINSKI AND CIRCUIT

JUDGES:

Appellee, the City of Costa Mesa (“Costa Mesa”), respectfully submits the

following brief on the merits in response to the appeal by Appellants, Marla James,

Wayne Washington, James Armantrout, and Charles Daniel DeJong (collectively

“Members”):

APPELLEE CITY OF COSTA MESA’S BRIEF

I. INTRODUCTION.

Members filed a complaint in the District Court for an alleged violation of

the Americans With Disabilities Act (“ADA”) against the City of Costa Mesa, in

order to challenge a zoning ordinance of the City which prohibits medical

marijuana dispensaries within the City. 42 U.S.C. § 12101, et seq. Members

alleged that they are disabled individuals under the ADA because they suffer from

various physical ailments that limit their participation in major life activities.

(Complaint, District Court Docket # 1, at ¶ 4). They have claimed that marijuana

is key to their full participation in services and programs of the City of Costa Mesa

and that they are members of medical marijuana dispensary collectives within the

City. (Complaint, at ¶¶ 6 & 9). This appeal follows the District Court‟s denial of

their request for a preliminary injunction to bar the Cities of Costa Mesa and Lake

Forest from enforcing their ordinances against medical marijuana dispensaries.


2

II. STANDARD OF REVIEW AND STATEMENT OF JURISDICTION.

The City of Costa Mesa does not contest Appellants‟ standard of review,

statement of district court jurisdiction or statement of appellate court jurisdiction,

except to the extent factual issues are asserted therein. Since this appeal centers

around legal issues determined by the District Court, all facts alleged by Members

are presumed to be true for the sole purpose of consideration of those legal issues.

III. ISSUE STATEMENT.

The City of Costa Mesa does not dispute Members‟ statement of the issues,

except as to Members‟ characterization of Congress‟ legislation relating to medical

marijuana in the District of Columbia, as represented in Members‟ issue numbers

two and five. In issue number two, Members characterize Congress‟

appropriations legislation as “allowing the District of Columbia to legalize medical

marijuana.” As set forth in this brief, the appropriations legislation merely

removed a ban on the use of funds relating to medical marijuana in the District of

Columbia and removed a restriction to the implementation of Initiative 59, a local

medical marijuana initiative, for purposes of furthering local home rule in the

District. Congress did not directly allow the legalization of marijuana for

purported medical uses or in any other way contrary to the Controlled Substances

Act (“CSA”).


3

Similarly, in issue number five, Members impliedly assert that Congress‟

recent appropriations act “allow[s] legalization of medical marijuana in

Washington D.C.” As discussed above and within this brief, Congress‟ 2010

Omnibus Appropriations Act, lifts pre-existing restrictions on the use by the

District of Columbia, of funds on medical marijuana, as well as other subjects

unrelated to marijuana. The Act does not directly allow the legalization of

medical marijuana, or any other act contrary to the CSA.

However, Costa Mesa does assert that the legal issues to be determined by

this Court can be more simply stated. The primary issues to be determined on this

appeal are as follows:

1. Are Members prohibited, pursuant to 42 U.S.C. Section 12210, from

being considered qualified individuals who are protected by the ADA,

as to their illegal use of drugs?

2. If Members are not prohibited from being considered qualified

individuals protected by the ADA, can the City of Costa Mesa be

required to reasonably accommodate Members by being required to

permit illegal marijuana dispensaries within the City?


4

42 U.S.C. Section 12210 provides, in pertinent part as follows:

(a) In general. For purposes of this Act, the term "individual with a

disability" does not include an individual who is currently

engaging in the illegal use of drugs, when the covered entity acts

on the basis of such use.

. . .

(d) “Illegal use of drugs” defined.

(1) In general. The term "illegal use of drugs" means the use of drugs,

the possession or distribution of which is unlawful under the

Controlled Substances Act (21 U.S.C. 812). Such term does not

include the use of a drug taken under supervision by a licensed

health care professional, or other uses authorized by the

Controlled Substances Act or other provisions of Federal law.

(2) Drugs. The term “drug” means a controlled substance, as defined

in schedules I through V of section 202 of the Controlled

Substances Act [21 USCS § 812].

IV. STATEMENT OF CASE.

Members filed a complaint for an alleged violation of the Americans With

Disabilities Act by the existence and enforcement of the City of Costa Mesa‟s

zoning code Section 13.30, which prohibits medical marijuana dispensaries within


5

the City. (Complaint, District Court Docket # 1, at ¶¶ 1 & 16). Members

thereafter filed an application for a temporary restraining order and preliminary

injunction as to the City‟s zoning code. (Application for Temporary Restraining

Order and Order to Show Cause Re: Preliminary Injunction, District Court Docket

# 4, at 1-4). By a minute order issued on April 7, 2010, the District Court denied

Members‟ request for a temporary restraining order. (Civil Minutes – General,

District Court Docket # 10). Members have not included this order in their

Excerpts of the Record and do not appear to be challenging the District Court‟s

initial denial of their request for a temporary restraining order. See Ninth Circuit

Court Rule 30-1.4 (c)(ii).

After conducting a hearing on Members‟ preliminary injunction request, the

District Court denied such request, on the primary grounds that Members‟ could

show no likelihood of success on the merits. (Appellants‟ Excerpt of the Record

(“AE”), Tab 1: 1-8). The District Court specifically concluded that the ADA does

not protect Members‟ illegal use of drugs. (AE, Tab 1: 5-7 (citing 42 U.S.C. §

12210)). This is the order challenged by Members‟ present appeal.

V. BACKGROUND FACTS.

The City of Costa Mesa does not dispute the facts asserted by Members in

their background facts, for purposes of the solely legal issues presented by this

appeal. In fact, Members have not included within the Excerpt of the Record any


6

of Members‟ declarations, submitted to the District court. Therefore, the alleged

facts contained therein, are not at issue for purposes of this appeal, in accordance

with Ninth Circuit Court Rule 30-1.4 (c)(ii).

In addition, Members have asserted additional facts in their appellate brief,

which are neither part of the record nor were such facts relied upon by Members in

the District Court. Although these facts do not affect this Court‟s consideration of

the legal issues on this appeal, the City of Costa Mesa notes these unsupported

facts for purposes of objecting to these previously unasserted claims. Specifically,

Members have asserted that they have tried certain prescription drugs which have

failed to provide them with relief. (Appellants‟ Opening Brief (“AOB”), at 1).

Members have previously made vague assertions by declaration only that

“[c]onventional medical services, drugs and medications have not been and are not

sufficient to afford . . .assistance” to them. (Members‟ Memorandum in Support of

Application for Temporary Restraining Order as to Preliminary Injunction, District

Court Docket #5 (Declaration of Marla James, at ¶ 7; Declaration of Wayne

Washington, at ¶ 7; Declaration of James Armentrout, at ¶ 7; Declaration of

Charles Daniel DeJong, at ¶ 7)).

Further, Members make certain claims about cease and desist orders and/or

notices the City of Costa Mesa has allegedly given to certain marijuana

dispensaries. (AOB, at 2). However, Members did not submit any evidence to this


7

effect; Members‟ declarations focus only on media articles of which they are

aware. (Memorandum in Support of Application for Temporary Restraining Order

as to Preliminary Injunction, District Court Docket #5 (Declaration of Marla

James, at ¶ 13; Declaration of James Armentrout, at ¶ 13)).

In addition, Members make certain claims about bans, moratoria and

marijuana dispensary operations in “all cities in Orange County.” (AOB, at 2).

(See also, AOB, at 3). There is no evidence relating to any marijuana dispensaries

in this matter except the one in Costa Mesa and the one in Lake Forest in which

Members claim membership. (Memorandum in Support of Application for

Temporary Restraining Order as to Preliminary Injunction, District Court Docket

#5 (Declaration of Marla James, at ¶ 9; Declaration of Wayne Washington, at ¶ 9;

Declaration of James Armentrout, at ¶ 9; Declaration of Charles Daniel DeJong, at

¶ 9)).

To the extent any facts are at issue in this matter, the City of Costa Mesa

renews the objections it asserted in the District Court.1 (Objections in Opposition

to Application for Temporary Restraining Order, District Court Docket #9, at 1-

23).

1 The District Court overruled the City of Costa Mesa‟s objections to the

declarations of Members submitted in support of Members‟ request for a

preliminary injunction on the grounds that its “analysis does not rely on most of

the evidence under objection” and that it could rely on inadmissible evidence to

prevent irreparable harm. (AE, Tab 1: 3).


8

VI. SUMMARY OF ARGUMENTS.

The ADA does not protect the Members‟ illegal use of marijuana. 42 U.S.C.

§ 12210. Since marijuana use is prohibited by federal law, the use of it for any

purpose is illegal and the ADA does not protect such illegal activity. Members are

simply not “qualified individuals” entitled to protection under the ADA as to their

use of marijuana, pursuant to 42 U.S.C. Section 12210. Section 12210 has been,

and can continue, to reasonably be interpreted to require this result. The plain text

of Section 12210 in context requires the conclusion that the ADA is not intended to

protect the illegal use of marijuana in contravention of the CSA. Standard

principles of statutory construction and a look to harmonizing the CSA and the

ADA also require this result. Further, there is no recognized right under either

Federal or California State law to the use of marijuana for purported medical

purposes.

Even if the Court were to find the Members protected under the ADA, the

City of Costa Mesa cannot reasonably be required to accommodate Members‟

illegal drug activity by being required to permit marijuana dispensaries within the

City. No other provisions of law would require any other result, namely Initiative

59 permitting medical marijuana within the District of Columbia, equal protection,


9

and Executive Branch decisions about the proper allocation of enforcement

resources are inapplicable to Members‟ claims.

VII. THE AMERICANS WITH DISABILITES ACT DOES NOT

PROTECT THE MEMBERS’ ILLEGAL USE OF DRUGS.

The Americans with Disabilities Act (“ADA”) explicitly excludes from its

protections individuals who currently engage in the illegal use of drugs. Since

Members currently use marijuana (AOB, at 1-2), a substance banned and

prohibited under the Controlled Substances Act, 21 U.S.C. §§ 801, et seq.

(“CSA”), their use of that substance is an illegal use of drugs. The plain language

of the ADA, the legislative history of the ADA, and controlling case law governing

the facts presented here each compel the conclusion that Members are not entitled

to protection under the ADA. Furthermore, even if Members were qualified

individuals covered by the ADA with respect to their illegal drug use, the City

cannot be compelled to provide any reasonable accommodation which would

permit or further that illegal use.

A. The ADA Does Not Protect the Illegal Use of Drugs.

As the District Court found, “[t]he ADA only protects „qualified individuals

with a disability.‟” (AE, Tab 1:5 (citing 42 U.S.C. § 12112 (a)). The District

Court also correctly concluded that the provisions of the ADA excluding the

“illegal use of drugs” apply to Members. Specifically, the District Court noted that


10

“[a]n „individual with a disability‟ protected under the ADA „does not include an

individual who is currently engaging in the illegal use of drugs, when the covered

entity acts on the basis of such use.‟” (AE, Tab 1:5 (citing 42 U.S.C. §12210 (a)).

Further, Section 12210 provides that:

[t]he term “illegal use of drugs” means the use of drugs, the

possession or distribution of which is unlawful under the Controlled

Substances Act (21 U.S.C. 812). Such term does not include the use

of a drug taken under supervision by a licensed health care

professional, or other uses authorized by the Controlled Substances

Act or other provisions of Federal law.

42 U.S.C. § 12210 (d)(1). The plain meaning, statutory construction principles,

and this Court‟s prior construction of Section 12210 all indicate that the above

exception does not exclude Members‟ use of marijuana from the “illegal use of

drugs” which is not protected by the ADA.

1. This Court Has Previously Determined that the Provisions of Section

12210 Do Not Apply to the Purported Medical Use of Marijuana

Pursuant to State Law.

The Ninth Circuit Court of Appeal has interpreted the very same statutory

provision at issue here, and rejected the argument that a marijuana user can be a

qualified individual under the ADA. Assenberg v. Anacortes Housing Auth., 268


11

Fed. Appx. 643 (2008).2 The Court in Assenberg found that the residency of an

individual could be terminated based on the individual‟s marijuana use for

purported medical purposes. The Court found that “[t]he Fair Housing Act,

Americans With Disabilities Act, and Rehabilitation Act all expressly exclude

illegal drug use, and AHA did not have a duty to reasonably accommodate

Assenberg‟s marijuana use for purported medical purposes. Id. (citing 42 U.S.C.

§§ 3602 (h), 12210 (a); 29 U.S.C. § 705 (20)(C)(i)).

The District Court for the Eastern District of the State of Washington has

also specifically considered the same arguments presented by Members in Barber

v. Gonzales, 2005 U.S. District LEXIS 37411 (E.D. Wash. 2005).3 The Barber

Court found that the ADA does not create any federal claim relating to marijuana

use for purported medical purposes. The Court further recognized that “[a]t first

glance, § 12210 (d)(1) appears to support Mr. Barber‟s position that he had a right

under the ADA to possess marijuana if prescribed by a Washington physician,” but

ultimately concluded that “the structure of the second sentence of § 12210 (d)(1)

requires the use of the drug taken under the supervision of a licensed health care

professional be consistent with the Controlled Substances Act.” Id. (emphasis

added).

2 Pursuant to Federal Rules of Appellate Procedure, Rule 32.1, the citation of

unpublished opinions issued on or after January 1, 2007. See Appellee City of

Lake Forest‟s Brief, Appendix A. 3 See AOB, Appendix, R.


12

The Court, therefore, held that a “physician-approved drug use [under the

ADA] must be an authorized drug use under the Controlled Substances Act or

other provisions of Federal law.” Id. Ultimately, because “[t]he Controlled

Substances Act does not allow for medical marijuana use unless under a strictly

regulated research program,” an individual‟s personal use of marijuana for

purported medical purposes, even if allowed by state law, is “an „illegal use of

drugs‟ as defined by the ADA.” Id.

In refusing to recognize any federal right to marijuana for purported medical

purposes under the ADA, the Barber Court noted that “the purpose of the ADA is

not to expand the scope of permissible drug use, but rather to eliminate the

discrimination against individuals with disabilities who lawfully utilize

prescription medicines in connection with their disability.” Id. The Court

concluded that “a federal claim under the ADA does not exist because the term

„individual with a disability‟ does not include an individual who is currently

engaging in the illegal use of drugs, when the covered entity acted on the basis of

such use.” In sum, the Assenberg and Barber courts explicitly rejected the exact

argument that Members make in this case.


13

2. A plain reading of Section 12210 reveals that the ADA is not intended to

protect the illegal use of drugs, which includes all uses not permitted by

the CSA or other federal law.

The plain meaning of Section 12210 prohibits application of the ADA to

protect or foster the illegal use of marijuana by Members. Specifically, the

definition of the phrase “illegal use of drugs” in Section 12210 refers to those

Schedule I substances “the possession or distribution of which is unlawful under

the Controlled Substances Act.” 42 U.S.C. § 12110 (d). Marijuana is listed as a

Schedule I substance under the CSA. 21 U.S.C. § 812. As the District Court aptly

noted, “Schedule I drugs have „no currently accepted medical use in treatment in

the united States.‟” (AE, Tab 1:6 (citing 21 U.S.C. §812 (b)(1)(B)). The United

States Supreme Court has also reached the same conclusion.

In Gonzales v. Raich, 545 U.S. 1, 26-7 (2005), the United States Supreme

Court held that the federal government, pursuant to the Controlled Substances Act

(“CSA”), had determined that marijuana is “contraband for any purpose.”

Therefore, Members‟ use of marijuana for purportedly medical purposes is an

illegal use of that substance under the CSA. The plain meaning of Section 12210

is that such uses are not protected under the ADA.

As the Ninth Circuit has previously recognized,

“[t]he first step in construing the meaning of a statute is to determine

whether the language at issue has a plain meaning. „The preeminent


14

canon of statutory interpretation requires us to presume that the

legislature says in a statute what it means and means in a statute what

it says there. Thus, our inquiry begins with the statutory text, and ends

there as well if the text is unambiguous.‟”

McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008) (citing BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183, 124 S. Ct. 1587, 158 L. Ed. 2d 338

(2004) (internal quotations omitted).

Members claim that one phrase in one sentence of the ADA provides an

exception to the rule that the Schedule I drug they have chosen to use is not in fact

illegal for purposes of interpretation of the coverage provisions of ADA. More

specifically, Members assert that one phrase in the last sentence of Section

12210(d)(1), and even the minute placement of one comma within that phrase,

provides that they are subject to protection under the ADA. Incredibly, they also

argue that this phrase and comma usurp all authority of the CSA to control the use

of marijuana. Members focus on the following sentence:

Such term does not include the use of a drug taken under supervision

by a licensed health care professional, or other uses authorized by the

Controlled Substances Act or other provisions of Federal law.

42 U.S.C. § 12210 (d)(1).

Members argue that the phrase “use of a drug taken under supervision by a

licensed health care professional” permits them to take any Schedule I drug,

including marijuana. They further contend that they are entitled to absolute

protection under the ADA as to that use directly.


15

In an attempt to justify their contention, Members conduct an extensive,

tortured grammatical analysis concerning this provision of Section 12210 (d)(1).

Members‟ purported grammatical analysis, however, is far too convoluted to be

useful in construing the meaning of this language. More importantly, it simply

does not constitute commonsense.

Members would have this Court believe that the phrase “under supervision

by a licensed health care professional” in the last sentence of Section 12210 (d)(1),

in isolation, renders all other provisions of, and case law interpreting the

application of, the CSA concerning illegal drug use meaningless. In fact, in the

context of the whole last sentence in Section 12210, the phrase “under supervision

by a licensed health care professional” clearly exempts drug use only in overall

keeping with what is otherwise legal or permissible under the CSA.

The structure of the last sentence of Section 12210 (d)(1) makes clear that

the phrase “under the supervision of a licensed health care professional” is

intended to only include those uses of controlled substances that are actually

permitted by the CSA. Based on principles of statutory construction, the term “or

other uses authorized by the Controlled Substances Act” is directly related to the

term immediately preceding it, “licensed health care professionals.” See Edmonds

v. Hammett (In re Estate of Covington), 450 F.3d 917, 922 (9th Cir. 2006) (citing

Circuit City Stores v. Adams, 532 U.S. 105, 114-115, 121 S. Ct. 1302, 149 L. Ed.


16

2d 234 (2001) (“‟[W]here general words follow specific words in a statutory

enumeration, the general words are construed to embrace only objects similar in

nature to those objects enumerated by the preceding specific words.‟”).

The District Court concluded that the use of the word “other” in the phrase

“or other uses authorized by the Controlled Substances Act” “shows that the

preceding clause also requires authorization from the Controlled Substances Act.”

(AE, Tab 1:6). The District Court properly rejected Members‟ argument that the

comma and the word “or” between the phrases “under supervision by a licensed

health care professional” and “other uses authorized by the Controlled Substances

Act” indicated independent clauses that were not related and each could therefore

“trigger the exception to illegal drug use.” (AE, Tab 1:6).

As the District Court correctly determined, Members‟ reading of the last

sentence of Section 12210 (d)(1) would give[] no effect to the word „other‟ in

Section 12210 (d). (AE, Tab 1:7). If the word “other” in the phrase “or other uses

authorized by the Controlled Substances Act” were entirely removed, according to

Members‟ reading, the meaning of the phrase would not change. However, “[s]uch

analysis is contrary to the directive that „we avoid any statutory interpretation that

renders any section superfluous and does not give effect to all of the words used by

Congress.‟” United States v. Luna-Madellaga, 315 F.3d 1224, 1230 (9th Cir.

2003) (citing United States v. Powell, 6 F.3d 611, 614 (9th Cir. 1993)). In


17

addition, “[t]here is, of course, no more persuasive evidence of the purpose of a

statute than the words by which the legislature undertook to give expression to its

wishes. Often these words are sufficient in and of themselves to determine the

purpose of the legislation.” United States v. American Trucking Ass‟n., 310 U.S.

534, 543 (1940).

3. Principles of statutory construction support the District Court’s reading

of Section 12210, as it harmonizes and honors the purpose and meaning

of both the ADA and the CSA.

Members‟ reading of the phrase “or other uses authorized by the Controlled

Substances Act” would directly contradict maxims of statutory construction that

require that the Court consider statutes in context and not in conflict with other

statutes. As the Tenth Circuit Court of Appeals recognized in United States v.

Hinckley, 550 F.3d 926, 934 (10th Cir. 2008), regarding the interpretation of a sex

offender registration statute, a court “must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole law, and to its object

and policy.” (internal quotations omitted).

The Hinckley Court noted that “[a] reviewing court should not confine itself

to examining a particular statutory provision in isolation.” Id. (internal quotations

omitted). Further, “‟[s]tatutory construction . . . is a holistic endeavor. A

provision that may seem ambiguous in isolation is often clarified by the remainder


18

of the statutory scheme . . . because only one of the permissible meanings produces

a substantive effect that is compatible with the rest of the law.‟” Id. (omissions in

original). See also, Doe Rumsfeld, 435 F.3d 980, 988 (9th Cir. 2006) (“when

interpreting statutory schemes, the court should, where possible, read the

provisions of the statute so as not to create a conflict with other statutes”);

Louisiana Public Svc. Commission v. FCC, 476 U.S. 355, 370 (1986) (“where

possible, provisions of a statute should be read so as not to create a conflict”).

The United States Supreme Court has recognized that legislative enactments

“are instruments of government, and in construing them „the general purpose is a

more important aid to the meaning than any rule which grammar or formal logic

may lay down.‟ This is so because the purpose of an enactment is embedded in its

words even though it is not always pedantically expressed in words.” United

States v. Shirey, 359 U.S. 255, 260-61 (1959). After all, “[g]rammar needn‟t

trump sense; the purpose of statutory interpretation is to make sense out of statutes

not written by grammarians.” Miller v. McCalla, Raymer, Padrick, Cobb, Nichols,

& Clark LLC, 214 F.3d 872, 875 (7th Cir. 2000).

In context, Members‟ interpretation of the last sentence of Section 12210

(d)(1) would provide for an overly expansive interpretation of this provision of the

ADA which would be directly contradictory to the provisions of the CSA. Most

importantly, Members‟ reading of the phrase “under supervision by a licensed


19

health care professional” would carve a gaping hole in the CSA, where there is no

manifest intent that Congress intended any such result. As the United States

Supreme Court has required, “[a]ll laws are to be given a sensible construction;

and a literal application of a statute, which would lead to absurd consequences,

should be avoided whenever a reasonable application can be given to it, consistent

with the legislative purpose.” United States v. Katz, 271 U.S. 354, 357 (1926).

Even when the merely an unreasonable result comes from a statutory

interpretation, “plainly at variance with the policy of the legislation as a whole,”

then courts are to look beyond the “literal words” of a statute to its purpose.

United States v. American Trucking Ass‟n., 310 U.S. 534, 543-44 (1940). As a

part of interpreting a statute, the Ninth Circuit has found that a proper reading of a

statute is one that “is most consistent with its text, structure, history, and purpose.”

United States v. Lopez, 484 F. 3d 1186, 1194 (9th Cri. 2007) (citing Kokoszka v.

Belford, 417 U.S. 642, 650 (1974) (“When interpreting a statute, the court will not

look merely to a particular clause in which general words may be used, but will

take in connection with it the whole statute and the objects and policy of the law,

as indicated by its various provisions, and give to it such a construction as will

carry into execution the will of the Legislature.”) (omissions and internal

quotations omitted). See also Carter v. Welles-Bowen Realty, 553 F.3d 979, 985-

986 (6th Cir. 2009) (“In discerning legislative meaning, the court considers other


20

persuasive authority only if the statute is „inescapably ambiguous.‟”) (citing

Limited, Inc. v. C.I.R., 286 F.3d 324, 332 (6th Cir. 2007) (“Resort to legislative

history is not appropriate, however, if the text of the statue may be read

unambiguously and reasonably.”)); Haggar Co. v. Helvering, 308 U.S. 389, 394

(1940) (“A literal reading of them [statutes] which would leave to absurd results is

to be avoided when they can be given a reasonable application consistent with their

words and with the legislative purpose.”).

Section 12210 is part of the ADA and there is no evidence that the ADA was

intended in any way to supplant or even address the separate, comprehensive goals

of the CSA. In particular, the United States Supreme Court has determined that, in

enacting the CSA, “Congress devised a closed regulatory system making it

unlawful to manufacture, distribute, dispense, or possess any controlled substance

except in a manner authorized by the CSA.” Gonzales v. Raich, 545 U.S. 1, 13

(2005) (emphasis added). Notably, the CSA forms a part of the Comprehensive

Drug Abuse Prevention and Control Act. Id. at 12. Further, the Supreme Court

has specifically found that “the CSA is a comprehensive regulatory regime

specifically designed to regulate which controlled substances can be utilized for

medicinal purposes, and in what manner.” Id. at 27 (emphasis added).

Congress could not have been more clear in its treatment of marijuana under

the CSA. Marijuana is classified as a Schedule I drug. 21 U.S.C. § 812 (c).


21

Schedule I drugs have “no currently accepted medical use in treatment in the

United States.” 21 U.S.C. §812 (b)(1)(B). The District Court acknowledged these

provisions, including the fact that “some illegal drugs, such as opium, may be

prescribed under the Controlled Substances Act, [but] marijuana cannot be

prescribed because it is a Schedule I drug.” (AE, Tab1:6 (citing 21 U.S.C. § 829)

(“allowing for prescriptions of only Schedule II through Schedule V drugs”)).

As such, marijuana is among the most “controlled of the substances listed

and identified in the CSA. Its only permissible, legal use under the CSA, in fact, is

as part of educational and research programs carried out under the supervision of

the United States Attorney General. 21 U.S.C. § 872. See also, 21 C.F.R. §

1316.24.

The import of Members‟ interpretation of Section 12210 would be a

complete sea change in the above restrictions of the CSA with respect to

marijuana. In actuality, Members‟ reading of Section 12210 would impermissibly

permit individuals the “right to use other controlled substances that alleviate pain

and suffering such as heroin and morphine.” County of Santa Cruz v. Ashcroft,

279 F. Supp. 2d 1192, n.7 1202 (N.D. Cal. 2003) (rejecting argument that medical

marijuana users had fundamental right to alleviate their pain).

The interpretation of Section 12210 which Members advocate would

fundamentally undermine and significantly modify the CSA. However, “[i]t is


22

hornbook law that where possible a statute should be construed so that it will be

constitutional and in harmony with other statutes.” Hughes Tool Co. v. Meier, 486

F.2d 593, 596 (10th Cir. 1973). See also, Watt v. Alaska, 451 U.S. 259, 266-67

(1981) (“repeals by implication are not favored”; “[t]he intention of the legislature

to repeal must be clear and manifest”) (internal quotations and citations omitted).

In fact, it is unfathomable, given the highly regulated nature of controlled

substances, that Congress would have inserted an undefined term like “license

health care professional” in Section 12210, and yet intend such an expansive

impact as to such term. See, 21 U.S.C. § 802 (definitions).4

The common sense interpretation of Section 12210 which was adopted by

the District Court is also harmonious with the provisions of the CSA. The CSA

permits the use of marijuana under limited circumstances in research studies.

These studies would undoubtedly involve the “supervision of health care

professionals.” 21 U.S.C. § 823 (f). Congress could very well have been

specifically referencing this type of study when including the phrase “under the

supervision by a licensed health care professional” in Section 12210. 42 U.S.C. §

12210 (d)(1).

4 Members cite to a definition of such term in 38 C.F.R. § 3.352 (AOB, at 30

n.39), but the cited definition applies only to that section, and is contained in a

completely different set of regulations relating to compensation for veterans.


23

4. The law does not recognize any right to marijuana for purported

medical purposes.

All facets of the law establish that there is no right to marijuana for

purported medical purposes, and any use of marijuana, except as part of an

authorized research project, is strictly forbidden. There is no question that the

United States Supreme Court, in analyzing the scope and intent of the CSA, has

explicitly held that Congress‟ commerce power was sufficiently exercised to

encompass all forms of marijuana: “Congress devised a closed regulatory system

making it unlawful to manufacture, distribute, dispense, or possess any controlled

substance except in a manner authorized by the CSA.” Gonzalez v. Raich, 545

U.S. 1, 14 (2005). Congress‟ power includes both the ability to prohibit entirely

“commerce in a particular commodity” and the ability to regulate “the intrastate

manufacture and possession of marijuana.” Id. at 19, n. 29, 22 (emphasis added).

The Supreme Court has concluded that “the mere fact that marijuana -- like

virtually every other controlled substance regulated by the CSA -- is used for

medicinal purposes cannot possibly serve to distinguish it from the core activities

regulated by the CSA.” Id. at 28.

Notably, the plaintiffs in Raich sought an injunction to prohibit the

enforcement of the CSA against them, to the extent such enforcement interfered

with their “right” to cultivate, possess or distribute marijuana for their personal


24

medical use pursuant to the California Compassionate Use Act. Id. at 5. The

Supreme Court was mindful of the claim by plaintiffs that they would “suffer

irreparable harm” if they were unable to use marijuana for purported medical

purposes, but found that plaintiffs could not succeed on the merits. Id. at 9. An

injunction was thus improper as a matter of law. Id.

Similarly here, Members have no right to marijuana under the ADA or

otherwise. Since there is no possibility of them prevailing on the merits, it was

proper for the District Court to have denied Members‟ request for a preliminary

injunction. Any such injunction would impermissibly interfere with the City of

Costa Mesa‟s valid zoning authority. See, e.g., City of Claremont v. Kruse, 177

Cal. App 4th 1153 (2009) (finding valid under the CUA and the MMPA a city

zoning prohibition of medical marijuana dispensaries); City of Corona v. Naulls,

166 Cal. App. 4th 418, 429-30, 433 (2008) (holding preliminary injunction

properly issued to prohibit continued operation of medical marijuana dispensary

when city prohibited such uses and city business violated business license

regulations).

In United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491

(2001), the United States Supreme Court refused to recognize that any medical

necessity defense to the purported medicinal use of marijuana was in any way

available under the CSA. The Supreme Court found that “a medical necessity


25

exception for marijuana is at odds with the terms of the Controlled Substances

Act” and the “provisions [of the CSA] leave no doubt that the defense is

unavailable.” Id. (emphasis added).

Similarly, the plaintiffs in Raich argued that they had a fundamental right to

medical marijuana. Raich claimed a “fundamental right to „make life-shaping

medical decisions that are necessary to preserve the integrity of her body, avoid

intolerable physical pain, and preserve her life.‟” Raich v. Gonzales, 500 F.3d 850,

864 (9th Cir. 2007). However, the Ninth Circuit Court of Appeal recognized that

“[c]onspicuously missing from Raich‟s asserted fundamental right is its

centerpiece: that she seeks the right to use marijuana to preserve bodily integrity,

avoid pain, and preserve her life.” Id. (emphasis in original). The Ninth Circuit,

therefore, found that “federal law does not recognize a fundamental right to use

medical marijuana prescribed by a licensed physician to alleviate excruciating pain

and human suffering,” noting that current law relating to medical marijuana does

not “fully decriminalize the use of medical marijuana.” Id. at 866 & n.15.

Since Members‟ use of marijuana, even if for purported medical purposes, is

wholly illegal under the CSA, Members‟ use of marijuana and/or the obtaining of

marijuana from a dispensary is, likewise, not protected by the ADA pursuant to

Section 12210. Further, the City of Costa Mesa is explicitly permitted under State

law to impose zoning regulations, including the prohibition of marijuana


26

dispensaries. Neither Federal nor State law recognizes any right to marijuana, for

medical purposes or otherwise. Therefore, Members simply cannot support their

claims under any valid interpretation of the ADA.

B. Even If the Court Were to Interpret Members’ Illegal Drug Use as

Protected Under the ADA, No Reasonable Accommodation Can Be

Required of the City for Such Illegal Use Under the ADA.

Even assuming, arguendo, that Members were somehow protected by the

ADA in their purported medical use of marijuana contrary to the provisions of the

CSA, Members are not entitled to a reasonable accommodation that essentially

amounts to a requirement that the City of Costa Mesa permit the use of illegal

drugs. The ADA does not protect illegal activity and an accommodation is not

reasonable when it would compel the City to permit the illegal activity of the

Members.

As set forth above, Members have no independent right, under either State

or Federal law, to use marijuana or to obtain marijuana from dispensaries.

Likewise, they are afforded no right to such substance or access to it by the ADA

itself. In particular, the ADA does not protect their illegal use of drugs and does

not require the City to “reasonably accommodate” such illegal activity. In

circumstances analogous to those presented by Members, federal courts have

consistently found that it is not discriminatory for a disabled individual to suffer


27

adverse consequences from illegal activities. The underpinnings of the legal

principles in this case, and its outcome, are clear when one analyzes the holdings

of cases with various analogous fact scenarios.

For example, in Dovenmuehler v. St. Cloud Hospital, 509 F.3d 435 (8th Cir.

2007), the Court of Appeal specifically found that an accommodation relating to

illegal drug use was not reasonable. In Dovenmuehler, a nurse claimed that she

was terminated for her drug addiction, which is a recognized disability under the

ADA. The court noted that it was her burden to show that she was a qualified

disabled individual under the ADA and that she had not met that prima facie

burden. Id. at 439. In particular, her actions at issue in that matter were not merely

her drug use, but her “illegal . . . conduct [which] is not protected by the ADA.”

Id. at 440 (emphasis added).

The Eighth Circuit found that “[u]nder the ADA, Dovenmuehler is not

protected from the consequences of illicit conduct explainable by her chemical

dependence, such as diverting hospital drugs intended for patients to personal use. .

. . Neither the ADA nor MHRA protects appellant from the consequences of that

conduct.” Id. (emphasis added). In particular, the health services plan that was

required for her continued practice as a nurse was “considered an unreasonable

accommodation [for her employer and] stemmed directly from her unprotected,


28

illegal conduct, not from her status as one chemically dependent.” Id. (emphasis

added)).

Similar to the above circumstances, the City of Costa Mesa‟s regulation of

marijuana dispensaries targets businesses that have as their essential activities the

cultivation, possession or distribution of marijuana, which is in violation of Federal

law. Members, like the nurse in Dovenmuehler, cannot use their physical

disabilities to excuse them from illegal conduct or to seek the City‟s complicity in

their continued illegal conduct within the City of Costa Mesa.

In Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995), this

Court found that summary judgment was proper in favor of an employer‟s

termination where “‟the plaintiffs [employees] concede drug usage, drug

purchases, and drug sales in a variety of circumstances and in many cases on

company property.‟” As to the employees, the employer “was entitled to act as it

did in discharging them because their misconduct, rather than any alleged

disability, was the reason for their discharge.” Id. (emphasis added).

Similarly, in Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir.

1997), the Tenth Circuit Court of Appeal also found that “employers need not

make any reasonable accommodations for employees who are illegal drug users

and alcoholics.” In addition, the court distinguished between a set of

circumstances where dismissal of an employee was on account of his misconduct


29

as opposed to a dismissal that was due to the employee‟s disability and/or the

employer‟s failure to reasonably accommodate that disability.

Members here seek an injunction against the City of Costa Mesa‟s valid

zoning ordinances and seek to prohibit the City from enforcing its valid zoning

regulations, which prohibit marijuana dispensaries. They seek what the courts

have been unwilling to give, protection under the ADA to those who engage in

illegal misconduct, and who only also happen to be disabled. Where the City‟s

zoning regulation of illegal activity does not directly relate to either Members‟

physical disabilities, or the City of Costa Mesa‟s ability to reasonably

accommodate those physical disabilities, Members‟ claimed right to protection

under the ADA fails.

In Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995), the Seventh

Circuit Court of Appeals affirmed a grant of summary judgment in an ADA case in

favor of an employer that demoted a maintenance worker because he had lost his

driver‟s license, which was necessary for his job, as a result of drunk driving. The

Court found that no reasonable accommodation could be made to excuse the

employee from his criminal conduct, analyzing the issue as follows:

To impose liability under the Americans with Disabilities Act or the

Rehabilitation Act in such circumstances would indirectly but

unmistakably undermine the laws that regulate dangerous behavior. It

would give alcoholics and other diseased or disabled persons a

privilege to avoid some of the normal sanctions for criminal activity.

It would say to an alcoholic: We know it is more difficult for you to


30

avoid committing the crime of drunk driving than it is for healthy

people, and therefore we will lighten the sanction by letting you keep

your job in circumstances where anyone else who engaged in the

same criminal behavior would lose it.

The refusal to excuse, or even alleviate the punishment of, the

disabled person who commits a crime under the influence as it were of

his disability yet not compelled by it and so not excused by it in the

eyes of the criminal law is not "discrimination" against the disabled; it

is a refusal to discriminate in their favor. It is true that the Americans

with Disabilities Act and the Rehabilitation Act require the employer

to make a reasonable accommodation of an employee's disability, but

we do not think it is a reasonably required accommodation to

overlook infractions of law.

Id. at 637 (emphasis added).

In the case of Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir.

1995), the village was permitted to dismiss its police officer based upon an

incident where the officer went into diabetic shock while driving on duty. The

Court found that the village knew of the officer‟s disability, but had an expectation

that he would monitor and control its physical effects while on duty. The dismissal

was based, not upon his disability directly, but upon his failure to control it as

expected. The Court specifically found that the officer could not “bootstrap his

disease into the line of causation. He argues that but for his diabetes, the incident

would not have occurred. But we have never held that mere „but for‟ causation is

sufficient under the ADA.” Id. at 666. Disability-caused misconduct then, is not

protected by the ADA.


31

Analogously, under the FHA, disabled individuals also are not “grant[ed] . . .

a „blanket waiver‟ from all facially neutral policies and rules.” Evans v. UDR Inc.,

644 F. Supp. 2d 675, 680 (E.D. N.C. 2009). In Evans, a rental applicant with a

mental disability and recovering from substance abuse was denied housing based

upon her criminal record. Id. at 677. She argued that her criminal record was due

to her mental disability and she was thus protected under the FHA from being

denied housing on that basis. Id. at 681, 684.

The Court found that “an accommodation is „necessary‟ only if there is a

causal connection between the proposed accommodation and the equal opportunity

to be afforded the person with a disability.” Id. at 690. Where the connection

between the denial of housing and the alleged disabilities was too removed, the

Evans Court found that “accommodating Evans's criminal history is not equivalent

to accommodating her mental disabilities.” Id. at 683-684. Specifically, “[t]he

types of stereotypes Congress was concerned with, however, do not include

concerns related to the criminal actions of people with mental disabilities where

such disabilities are an underlying cause of a crime.” Id. at 684 (emphasis added).

The example presented by the Evans Court is telling: “if an individual is

discriminated against by an apartment complex because it refuses to install a

wheelchair ramp, the causal connection exists. However, criminal conduct caused


32

by a mental disability is not an effect of a disability with which Congress was

concerned in the FHA.” Id. at 685.

Members sought from the District Court precisely the type of

accommodations which have been consistently refused in the cases referenced

above. They have sought an accommodation which would permit, sanction,

further and allow illegal drug activity.

Moreover, there is no direct connection between Members‟ claimed physical

disabilities and the City of Costa Mesa‟s zoning regulation of marijuana

dispensaries. The fact that they claim some tenuous and tangential impact on their

ability to engage in illegal activity, which activity they claim is necessary because

of their asserted physical disabilities, is an insufficient connection between their

disability and the City‟s zoning regulations prohibiting illegal conduct to be worthy

of any protection by the ADA.

Their claims in their entirety, then, fail as a matter of law. As set forth

above, the Ninth Circuit has already concluded that there is no ADA claim for

Members‟ illegal drug use. See Assenberg v. Anacortes Housing Auth., 268 Fed.

Appx. 643 (9th Cir. 2008). See also, Barber v. Gonzales, 2005 U.S. District

LEXIS 37411 (E.D. Wash. 2005).


33

VIII. THE DISTRICT OF COLUMBIA INITIATIVE ON MEDICAL

MARIJUANA DOES NOT AID THE PATIENTS’ CLAIMS.

Members make various additional claims relating to Initiative 59, which is a

local initiative approved by the residents of the District of Columbia for the

medicinal use of marijuana. (AOB, at 32-42). They claim that actions by

Congress with respect to Initiative 59 render it “other federal law” for purposes of

interpretation of Section 12210. This claim is essentially that Members‟ use of

marijuana does not qualify as an “illegal use of drugs” under Section 12210 (d)(1),

because that Section exempts from the definition of the term “illegal use of drugs”

those uses that are “under supervision by a licensed health care professional, or

other uses authorized by the Controlled Substances Act or other provisions of

Federal law.” 42 U.S.C. § 12210 (d) (emphasis added). Members further assert

that the existence of the Initiative 59, and their equal protection rights, require that

all persons within the United States should be afforded the same rights as are given

to District of Columbia residents by Initiative 59. These arguments have no merit.

A. Initiative 59 is Not a Provision of “Other Federal Law” intended to Be

Included Within Section 12210.

Members admit that Initiative 59 was a local measure voted upon and

approved by the residents of the District of Columbia. (AOB at 34). Members

further concede that Congress imposed certain limiting measures for numerous


34

years on the effectiveness of Initiative 59. (AOB, at 34-35). Namely, Congress

imposed an appropriations requirement, during a ten-year period, that the initiative

should not take effect and that the District of Columbia could use no federal funds

for its implementation. (AOB at 35). They claim that the lifting of Congress‟ ban

has implications and ramifications well beyond what can reasonably be inferred

from such action.

In particular, Members acknowledge that the ban on implementation of

Initiative 59 was included in an appropriations bill. Members would have this

Court conclude, as do they, that Congress intended a wholesale repeal of the CSA

by its modification of this appropriations bill. Members‟ contention goes well

beyond any reasonable interpretation of Congress‟ action, however.

Specifically, “the Home Rule Act prohibits District officers and employees

from expending any funds unless authorized to do so by Congress.” Marijuana

Policy Project v. United States, 304 F. 3d 82, 83 (D.C. Cir. 2002) (citing D.C.

Code Ann. § 1-204.46)). Congress, however, never affirmatively permitted the

expenditure of funds for medical marijuana. Instead, Congress banned the use of

funds for such purpose and then removed that ban. This cannot be considered any

affirmative support or approval of the use of such funds.

In fact, it is clear from the legislative history of the recent appropriations

changes that Congress‟ action had much more to do with furthering home rule in


35

the District of Columbia, allowing the residents of the District to govern

themselves. In line with this purpose, the appropriations changes applied to more

than one subject matter, and did not relate directly to medical marijuana.

The broad scope of the appropriations bill which lifted the ban on Initiative

59 was explained to legislators as follows:

The bill also takes further steps towards reducing undue

congressional interference in local affairs and eliminating restrictions

on the District that do not apply to other parts of the Nation. As

requested 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 partnership registration

and benefits and a ban on use of funds for needle exchange programs,

and allows the District to conduct and implement a referendum on use

of marijuana for medical purposes, as has been done in various states.

111 H. Rpt. 202 (emphasis added).

As is clear from the above explanation, the lifting of Congress‟

appropriations ban with respect to marijuana was not actually focused on medical

marijuana. More importantly, the purpose of such lifting had nothing whatsoever

to do with legalizing or permitting the use of medical marijuana or in any way

supplanting the CSA as Members contend here. Instead, Congress‟ action, simply

undoing its prior ban, sought to accomplish a provisions of home rule to the

residents of the District of Columbia so that they would have some modicum of

control over their local governance more in line with what regular states enjoy

elsewhere in the United States. This conclusion is inevitable when considering


36

additional analysis contained in the legislative history of Initiative 59. The District

of Columbia representative supporting the appropriations changes, Eleanor Holmes

Norton, explains this overarching purposes of the appropriations actions precisely:

The District asks, only be left abortion in our control insomuch as it is

left in the control of other Americans. And throughout the United

States, pursuant to the Supreme Court decision in Roe v. Wade, local

jurisdictions may use local funds for abortions for poor women.

. . .

[W]hy is Congress having anything to do with the D.C. budget, a local

budget? It is none of your affair. And it is an anomaly that we are

going to cure soon. But the fact is that it is here under the Home Rule

Act, which made the District of Columbia a self-governing

jurisdiction. It is in the Financial Services bill because there is no

place to put it. There is no place to put it because it doesn't belong in a

Federal budget because it is not the money of the people of the United

States. These are the funds of the people who live in the District of

Columbia.

Some Members may mistakenly, others deliberately, come to the floor

to try to impose their will or their choices or the choices of their

citizens on the citizens of another jurisdiction. They wouldn't stand for

that for one second in their own jurisdictions, whether on abortion or

on any other issue. We saw the deadly effects that can occur, and I

appreciate that Mr. Serrano removed from the D.C. appropriations an

attachment that was responsible for the death and for the terrible

health of thousands of D.C. residents when we were barred from using

a needle exchange program that thousands of jurisdictions are able to

do. We are not going to stand for it. It is not your business to deal with

the health of my citizens or to keep us from doing what is required

and legal to keep them healthy.

. . .

This is a local budget. Make no mistake about it: no amendment is in

order on anybody's local budget. The time for lip service for local

control has run out. We have profound disagreements on some issues

from abortion to vouchers. Go home and deal with them there. Allow

us to deal with these issues in our own way as a local jurisdiction.


37

I appreciate that the Rules Committee has indeed respected our

citizenship. And I demand that other Members of Congress do so, as

well.

155 Cong. Rec. H. 8191

Congresswoman Norton continued further with respect to the appropriations

changes relating to medical marijuana and other subjects:

I thank the gentleman, the ranking member and the committee for

bringing this bill forward, especially Chairman Serrano for

consistently showing respect for our citizenship as American citizens

by not interfering with local governance and trying to keep others

from doing so.

Mr. Chairman, it‟s very painful for a Member to have to come to the

Congress to ask that you vote for her local budget. It‟s particularly

painful when that Member doesn‟t even have a vote herself on her

own local budget. Yet some Members are quick to step up with

amendments of their own on a budget they had nothing to do with

raising, as if District of Columbia were just another Federal

appropriation.

One Member, I regret to say, came forward with some misinformation

which the Rules Committee and I had to correct this morning that

somehow we wanted Federal funds to be used for abortion. Nonsense.

We have never asked for Federal funds for abortion services in the

District of Columbia, only for use of local funds. We have never

asked for anything except equality with other jurisdictions and other

American citizens.

All residents ask is that you respect the Home Rule Act. Congress had

no intention that our local budget would be treated any differently.

These are our funds, local funds, not Federal funds. It is very difficult

for Congress, and Congress does not, in fact, change the local budget

because Congress doesn‟t know anything about it. The presence of the

D.C. budget here becomes a basis for a small minority to use us for

their own purposes, to try to impose on us their own choices.


38

You can‟t endorse local control as a founding principle for everybody

except the residents of your Nation‟s Capital. The Founders never

made exceptions. I ask you to vote for this appropriation and in doing

so, to remember, we demand not to be relegated to second-class

citizenship because of our treatment in this process and on this floor.

155 Cong. Rec. H. 8205, 8210.

Based on the above, the impact and scope of 2010 Omnibus Appropriations

Act is extremely narrow and limited. It was clearly intended as only the

appropriations act that it purported to be, as well as addressing only potential

medical marijuana uses within the District of Columbia, as part of that area‟s home

rule similar to States‟ independent rights to impose local law, and nothing more.

Members‟ attempt to overstate and magnify the Act is unwarranted, unsupportable,

and erroneous. The Act is simply irrelevant to this Court‟s determination of

whether Members may support a claim under the ADA for their illegal use of

marijuana and whether the City of Costa Mesa can be compelled to allow such

illegal uses.

B. EQUAL PROTECTION ANALYSIS DOES NOT PERMIT

MEMBERS’ ILLEGAL USE OF MARIJUANA, AND DOES NOT

REQUIRE THAT INITIATIVE 59 BE MADE TO APPLY

THROUGHOUT THE UNITED STATES.

Members have further vaguely asserted that equal protection principles

guarantee them the right to use marijuana, namely that they are entitled to equal


39

protection in California of abstract implications of the implementation of Initiative

59. Equal Protection analysis, however, does not apply to the present

circumstances or individuals for several reasons.

In order to show a violation of equal protection, Members would be required

to show that they are part of a protected class, that a fundamental right they possess

is infringed upon, or that there is no rational basis for the City of Costa Mesa‟s

prohibition against marijuana dispensaries within the City. FCC v. Beach

Communications, 508 U.S. 307 (1993) (“In areas of social and economic policy, a

statutory classification that neither proceeds along suspect lines nor infringes

fundamental constitutional rights must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts that could provide a

rational basis for the classification.”)

Members, as allegedly disabled individuals for purposes of the ADA, are not

a protected class. Equal protection does not protect individuals who are disabled

under the ADA from the valid application of the City of Costa Mesa‟s zoning

ordinance prohibiting illegal marijuana dispensaries under the City‟s policy power:

“Because „the disabled do not constitute a suspect class‟ for equal protection

purposes, a governmental policy that purposefully treats the disabled differently

from the non-disabled need only be rationally related to legitimate legislative goals


40

to pass constitutional muster.” Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th

Cir. 2001).

Further, equal protection protects only the exercise of fundamental rights.

There is no right, fundamental or otherwise, to the use or dispensation of

marijuana. As already discussed above, there is simply no right, under either state

or federal law, to use, possess or distribute marijuana, even for purported medical

purposes. See, Gonzalez v. Raich, 545 U.S. 1, 14 (2005); United States v. Oakland

Cannabis Buyers' Coop., 532 U.S. 483, 491 (2001); County of Santa Cruz v.

Ashcroft, 279 F. Supp. 2d 1192, n.7 1202 (N.D. Cal. 2003). See also, People ex

rel. Lungren v. Peron, 50 Cal. App. 4th 1383, 1400 (1997); People v. Urziceanu,

132 Cal. App. 4th 747, 774 (2005); Ross v. Ragingwire, 42 Cal. 4th 920 (2008).

In addition, the City of Costa Mesa‟s prohibition against medical marijuana

dispensaries has a rational basis. In order to establish a violation of equal

protection, a claimant “must make a showing that a class that is similarly situated

has been treated disparately.” Christian Gospel Church, Inc. v. San Francisco, 896

F.2d 1221, 1225 (9th Cir. 1990). See also, Muckway v. Craft, 789 F.2d 517, 523

(7th Cir. Ind. 1986) (rejecting plaintiffs‟ “attempt to bootstrap their state law

zoning claim into a federal court action by dressing it in the verbiage of equal

protection”).


41

The City of Costa Mesa‟s prohibition of medical marijuana dispensaries

does not treat Members differently than others that are similarly situated. Medical

marijuana dispensaries that provide marijuana only to individuals who are

“disabled” under the ADA are prohibited on equal footing with medical marijuana

dispensaries that provide marijuana to individuals who may have some medical

ailment but who are not “disabled.” If Members‟ argument were correct, all

controlled substances laws would be subject to rescission as to those individuals

that are “disabled” under the ADA and who have some need for illegal narcotics in

relation to their “disability.” This cannot be so.

The City of Costa Mesa‟s zoning code provisions prohibiting marijuana

dispensaries merely treats differently those businesses that conduct operations

legally from those businesses which have illegal operations. This an eminently

reasonable and legitimate basis for statutory distinction. Therefore, the different

treatment of marijuana dispensaries, engaging in illegal conduct, is rational and is

a reasonable and legitimate form of regulation, which is not violative of equal

protection.

Moreover, equal protection analysis simply does not extend as far as

Members claim it does. They assert that the implementation of a wholly local

initiative is somehow relegated to national application merely because Congress

removed a prior prohibition to the use of any District of Columbia funds relating to


42

that initiative. Equal protection principles do not go so far as to protect all citizens

of the United States in the same manner as may be provided by each and every

other state or local jurisdiction affording rights to its residents or citizens.

Members appear to claim that the District of Columbia initiative exempts

residents from criminal liability under the CSA. (AOB, at 40-41). Members,

however, ignore the fact that the reference to the “Controlled Substances Act” is

specifically defined in Section 3 of Initiative 59 (D.C. ACT 13-138) as follows:

the District of Columbia Uniform Controlled Substances Act of 1981, effective

August 5, 1981 (D.C. Law 4-29; D.C. Code § 33-501 et seq.). 57 D.C. REG. 3380,

3381 (emphasis added). See also, Appellee City of Lake Forest‟s Brief, Appendix

. Initiative 59 does not exempt District of Columbia residents from federal law

(the CSA), but from local laws applicable only in the District of Columbia. As

stated previously, Congress‟ removal of a bar to implementation of Initiative 59

has merely placed the residents of the District on equal footing vis-à-vis their

“state” as other state residents are to their states. This has no federal or equal

protection implications whatsoever.

Moreover, the appropriations bill, as referenced above, does nothing more

than put the residents of the District of Columbia on equal footing with residents of

other states within the United States, in terms of their local government having

local control in certain respects. Members‟ claim, if carried to its logical


43

conclusion, would eviscerate all state boundaries and nullify each state or local

jurisdiction‟s inherent authority to adopt legal provisions applicable to its residents

and citizens; each state or local legislature would be raised to an equal level with

Congress and able to apply its regulations to the entirety of the United States. This

consequence of Members‟ claims is nonsensical.

For each of these reasons, Members‟ equal protection argument fails. As

such, this Court should affirm the District Court‟s decision to deny Members‟

request for a preliminary injunction.

IX. MEMBERS’ REMAINING ARGUMENTS DO NOT SUPPORT

THEIR CLAIM OF A VIOLATION OF THE ADA.

Members make various other claims, all of which are simply variations of

the issues already addressed. Fundamentally, their claims fail because they are not

entitled to protection by the ADA for their illegal use of drugs, they have no right

to marijuana, and no reasonable accommodation can be provided by the City which

would permit their illegal use of drugs. Moreover, Initiative 59, permitting the use

of medical marijuana in the District of Columbia is not federal law, is irrelevant to

Members‟ use of marijuana or the regulation of marijuana dispensaries in the State

of California. Congress‟ action to remove a prior ban on implementation of

Initiative 59 does not constitute an exception to the illegal use of drugs under

Section 12210 or in any way represent a policy statement of Congress modifying


44

or undermining the absolute prohibition on the general use of marijuana under the

CSA.

One additional argument that Members make, however, is the assertion that

the executive branch has “recognized” state medical marijuana laws. Of course, as

an initial matter, the executive branch‟s mere “recognition” of state medical

marijuana laws could not modify Congress‟ clear statement prohibiting marijuana

under the CSA. Perhaps more importantly, a statement of the scope of

enforcement and allocation of resources to that effect by the Department of Justice

has no bearing whatsoever on the continued and full applicability and validity of

all of the provisions of the CSA.

Pursuant to the CSA marijuana is a controlled substance, and its distribution

is illegal, regardless of whether such distribution is for sale to individuals or

distributed to members of a collective. One statement from the October 19, 2009

Memorandum from U.S. Deputy Attorney General David W. Ogden does not in

any way change that. (AOB at 41-42). Regardless of any general statement not to

prosecute individuals complying with state law, the statement goes on to clarify

that

“[o]f course, no State can authorize violations of federal law. . . .

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 [U.S.] Department [of Justice]‟s authority to

enforce federal law, including laws prohibiting the manufacture,


45

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.”

See City of Costa Mesa‟s Request for Judicial Notice, filed concurrently herewith.

The above statement of inaction, in certain instances, of medical marijuana

prosecution is akin to the inaction of Congress in addressing its appropriations to

the District of Columbia and the implementation of Initiative 59. Inaction or

passive acquiescence of state action simply cannot be construed by this Court as

making any statement by Congress as to the nature of medical marijuana under the

CSA. Marijuana remains an illegal, Schedule I narcotic for all purposes, under

both the CSA and as interpreted by the United State Supreme Court. 21 U.S.C. §

812; Gonzales v. Raich, 545 U.S. 1, 26-7 (2005).

The ADA does not make sweeping changes to this clear designation, nor

does any other law or action of Congress or the States. Therefore, Members‟

claims fail. Unless and until Congress makes explicit modifications to the CSA or

otherwise actually expresses a direct intent to protect any purported medical use of


46

marijuana, Members are not entitled in any way to such use and the City of Costa

Mesa cannot be required to allow such illegal use under the ADA or any other law.

X. CONCLUSION.

For all of the foregoing reasons, Appellee the City of Costa Mesa urges this

Court to uphold the District Court‟s denial of a preliminary injunction to

Appellants Marla James, Wayne Washington, James Armantrout, and Charles

Daniel DeJong. The District Court properly found that the ADA does not protect

Appellants‟ illegal use of marijuana. Further, even if the ADA protected

Appellants, it does not require the City to permit the illegal use of marijuana as a

reasonable accommodation to Appellants. Finally, certain unrelated acts of

Congress or the Executive Branch with respect to medical marijuana within the

District of Columbia or enforcement priorities do not effect a wholesale revision

of the explicit prohibitory regulation of marijuana within the CSA.

Respectfully submitted,

JONES & MAYER

By: /s/

James R. Touchstone and

Krista MacNevin Jee


47

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32

(a)(7)(B) because this brief contains 10,951 words. The word processing program

used to create this brief was used to calculate the above word count.


JONES & MAYER

By: /s/


Krista MacNevin Jee


48

STATEMENT OF NO RELATED CASES

Appellee, City of Costa Mesa, is not aware of any cases pending is this

court related to this matter which would be required to be identified in a statement

of related cases pursuant to Ninth Circuit Rules, Rule 28-2.6.


JONES & MAYER

By: /s/


Krista MacNevin Jee


united states court of appeals for the ninth circuit...

Documents