MEDICAL POT RULING CALLED 'SIGNIFICANT VICTORY'

ANAHEIM - A state appellate court released a much-anticipated but
mixed ruling Wednesday on a case involving Anaheim's ban on medical
marijuana dispensaries, failing to provide the clear precedent that
both sides were anticipating on whether California cities have the
right to ban all such dispensaries.

The case will now likely go back to the trail court for further review.

Still, the attorney for the medical-marijuana patients called it a
"significant victory" that prohibits cities from standing solely on
federal law to prohibit medical-marijuana dispensaries.

"This swings the pendulum back toward the middle," said Anthony
Curiale, the Brea-based attorney for medical-marijuana patients. "We
are going to attack Anaheim's ordinance because it conflicts with
state law and they can no longer use federal law as a shield."

Anaheim released a prepared statement from the city attorney
following the ruling, applauding the court for siding with the city
on one issue, but expressing disappointment over its ruling on the
lack of federal preemption.

"This City Attorney's office will be discussing this case with the
City Council in closed session at the August 24th council meeting and
will be seeking further direction from the council at that time," the
statement concluded.

The three-judge panel from California's 4th District Court of Appeal
agreed with medical-marijuana patients that a lower court "erred" in
declaring that federal law, which prohibits any use of marijuana,
pre-empted state law that allows for specific medical-marijuana activities.

But the court also determined that the lower court "correctly
concluded that plaintiffs failed to state a cause of action" related
to the Unruh Act, which the court said pertains to business
establishments, not legislative acts.

"As anxious as we, the parties ... are to reach this important and
interesting question of state pre-emption, this case in its present
posture is not the occasion to do so," the ruling states.

It goes on to say: "Factual issues that we may not resolve on appeal
remain, including whether plaintiffs qualify as primary caregivers or
otherwise for the ... protection against an ordinance imposing
criminal punishment for operating a dispensary."

The Anaheim case was widely regarded as what might set precedent for
cities across the state. In all, 36 cities joined in support of
Anaheim's position, including 10 in Orange County.

"Marijuana advocates were looking to this case hoping it would say
that cities have no ability to restrict or deny (medical) marijuana
dispensaries. But this case does not do that," said Jeffrey Dunn, an
Irvine-based attorney who represents cities including Corona and
Claremont on medical-marijuana issues.

"I've been looking to see if this case contradicts the existing case
precedents cities have been relying on and it does not," Dunn added.

Anaheim unanimously approved its ordinance in July 2007.

In defending the outright ban, an attorney for the city wrote that
the city was exercising "its broad constitutional police powers" by
prohibiting medical-marijuana dispensaries because the city was
"concerned about drug-related crime and the use of marijuana without
medical need."

A group of medical-marijuana patients sued the city in Orange County
Superior Court, but a judge dismissed the case. So the patients
appealed to the state appellate court, saying that the Anaheim
ordinance was counter to the state's Compassionate Use Act.

California voters approved that act (Proposition 215) in 1996. It
allows for the use of marijuana for medicinal purposes.

The decision from the appeals court in the Anaheim case was a long
time in coming. The case was filed in March 2008 and opening
arguments were heard nearly a year ago.

Orange County cities that filed briefs in support of Anaheim's
ordinance included: Costa Mesa, Cypress, Fountain Valley, Fullerton,
Garden Grove, Newport Beach, Orange, Placentia, Tustin and Westminster.

Other cities followed Anaheim's lead and adopted their own ordinances
banning medical marijuana dispensaries.

Curiale, the attorney for medical-marijuana patients, said he's was
waiting to hear back from Anaheim on how it plans to react to the ruling.

If the case goes back to trial courts, he said, it could be many more
months before a decision is reached.