ARGUMENTS HEARD IN MEDICAL MARIJUANA LAWSUIT

The long-delayed lawsuit against the county of Mendocino over its
medical marijuana ordinance was in court Friday for the first time in
more than a year.

Local attorney E.D. Lerman and San Francisco attorney J. David Nick
filed the lawsuit against the Mendocino County Board of Supervisors
and Sheriff Tom Allman in September 2009, on behalf of five medical
marijuana patients, including principal plaintiff Jim Hill.

Mendocino County Superior Court Judge John Behnke said Friday at the
end of the half-hour hearing where both sides presented their
arguments that he would issue a written decision. He has 90 days to do so.

The lawsuit alleges the county's medical marijuana ordinance,
codified as Mendocino County Code 9.31, is unconstitutional because
it limits cultivation in ways state law, outlined in Proposition 215,
the Compassionate Use Act, does not.

Behnke said at the outset of the hearing that he would consider the
matter a "facial challenge" because the plaintiffs don't give
"specific instances in which the ordinance has been wrongfully applied."

The plaintiffs seek an injunction to stop the county from enforcing
the code, which is enforced using the county's nuisance procedures --
a fact that rankled local growers and medical marijuana activists
when the Board of Supervisors was revising 9.31 in 2009.

"This is a policy decision being made by the county in order to
ameliorate insulting other people who may be insulted by those using
medical marijuana," Nick said.

He argued that state law pre-empts any local regulation concerning
medical marijuana.

"The county cannot ban -- municipalities cannot ban -- and prohibit
or sanction ... what state law has expressly allowed people to do," Nick said.

He said the purpose of the Compassionate Use Act was to "take the
stigma out" of using marijuana as a medicine, and that the county's
treatment of its cultivation as a nuisance contradicts that.

"Everybody on this planet understood the Compassionate Use Act as
allowing you to grow marijuana anywhere you wanted, where you have
control, period," Nick said.

Code 9.31 makes it impossible for some people to grow marijuana where
they live, Nick argued. He said county lawmakers should interpret
state law in a way that promotes the purpose of state law. County
code should "enhance access" to medical marijuana, he argued.

"Clearly, an ordinance which is prohibiting an unknown quantity of
individuals that may not live in qualifying properties from growing
in their very own land, that they own or rent or have control over,
is not enhancing access," Nick said.

Allowing the 9.31 regulations to stand, he said, would contribute to
the "crazy quilt" of regulations that change from one city or county
to the next.

Nick said the lawsuit is similar to the Northern California
Psychiatric Society v. city of Berkeley, where the city banned the
use of electroshock therapy for psychiatric patients when the state allowed it.

He also cited an opinion from the state Attorney General's Office
that "if you create ordinances which detract, limit or narrow what
people are allowed to do under this legislation, it's pre-empted."

Attorney Terry Gross of the Mendocino County Counsel's Office
represented the county in the hearing.

State medical marijuana law protects patients and prescribing doctors
from criminal prosecution, but 9.31 doesn't impose criminal
penalties, she argued.

"What we have here is a local ordinance that is regulating something
that is legal," Gross said. "That's what zoning regulations do."

Gross read from the Compassionate Use Act, "Nothing in this action
shall be construed to supersede legislation prohibiting persons from
engaging in conduct that endangers others, nor condone ... marijuana
for non-medical uses.'"

She read from the Medical Marijuana Program Act, "Nothing in this
article shall prevent a city or other local governing body from
adopting and enforcing laws consistent with this article,'" and a
more recent change in the law this year.

"I don't know how the Legislature can say it more concisely or
precisely: Nothing in this section shall prohibit a city, county or
city and county from adopting ordinances or policies that further
restrict the location or establishment of a marijuana collective,
cooperative, dispensary, operator, establishment (or) provider.'"

She said the section also says the law doesn't pre-empt ordinances
adopted prior.

"There's no implied pre-emption here," Gross said.

She continued, "I agree the intent is to enhance access, to remove
stigma ... The county's ordinance is an attempt to balance the needs
of medical marijuana users in the county with the needs of those who
are impacted by sale, use, growth (of marijuana). There's no ban here
. on marijuana or cultivation. Yes, there are people who, by virtue
of the size of their parcel (or) location of their parcel, cannot
cultivate marijuana, but that's what zoning regulation is about."

The restrictions are similar to those that prohibit certain types of
agricultural uses or farm animals in certain areas.

"That is what land use regulation does," Gross said at the conclusion
of her argument.

Nick said outside and inside the courtroom that he believes the case
will end up before the state Supreme Court. Whichever side wins on
this level, he noted, the other side will likely appeal.

He predicted Behnke will likely grant the county's motion to throw
out the lawsuit, but leave room for the petitioners to amend the
complaint and bring it back to court.