Meeting for oral arguments, the state high court considered the legality of a ban on dispensaries by the city of Riverside. Several justices noted that the state Constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.
"The Legislature knows how to say 'Thou Shall Not Ban Dispensaries,' " Justice Ming W. Chin said. "They didn't say that."
The court's ruling, due in 90 days, will determine the fate of about 200 local bans on cannabis dispensaries. If the justices uphold the bans, more such measures are anticipated. Medical marijuana advocates said that outcome would force tens of thousands of patients to drive long distances or resort to the black market.
But the justices appeared more focused on the regulatory rights of cities than on patient access to cannabis.
Chief Justice Tani G. Cantil-Sakauye said she viewed the case as a test of the "authority historically invested in municipalities" over land use.
J. David Nick, representing a dispensary, argued that municipalities could regulate, but not prohibit, an activity the state has permitted. He said the goal of the medical marijuana laws was to provide for uniformity from county to county.
"You can pass local laws, but they have to be consistent" with the state laws intended to make medical marijuana available, Nick told the court during the televised hearing.
Justice Marvin R. Baxter seemed skeptical.
"If the Legislature wanted to prevent localities from banning the dispensaries, why didn't it say so expressly?" he asked.
Justice Goodwin Liu noted that state medical marijuana laws provided limited immunity from state sanctions, not from local rules. The laws' "language doesn't seem to get you very far," Liu told the dispensary attorney.
Some justices suggested that the Legislature might not have legal authority to prevent cities from banning dispensaries through zoning.
Justice Carol A. Corrigan noted that the California Constitution confers on local governments the right to police their borders. "It is not for the Legislature to try to retract that which it does not confer," she said.
Justice Joyce L. Kennard appeared to agree. She said municipalities had a "preexisting power" to regulate land use that is independent of the state's medical cannabis laws.
But Justice Kathryn Mickle Werdegar observed that local bans on dispensaries might thwart the intent of the medical marijuana laws. Although the Legislature has given cities the right to regulate dispensaries, it was "debatable" whether regulation means outright prohibitions, she said.
Even considering Werdegar's remarks, Los Angeles Special Assistant City Atty. Jane Usher said the court seemed headed for a unanimous decision in favor of permitting bans. Usher said Los Angeles does not plan to introduce any new regulations until voters consider three medical marijuana measures on the May ballot.
Joe Elford, chief legal counsel for a medical marijuana advocacy group, said he was disappointed that the hearing failed to elicit much concern for patients.
"I didn't really feel like the patients' voices were heard," he said. He agreed that the court was likely to give municipalities discretion to ban dispensaries but expressed hope that the ruling would otherwise affirm their legality.
"I am hopeful the court will let them know it is a discretion, not an obligation, and they can do the right thing if they chose," Elford said.