Marla James v. The City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLA JAMES; WAYNE 

WASHINGTON; JAMES ARMANTROUT;

CHARLES DANIEL DEJONG,

Plaintiffs-Appellants, No. 10-55769 v. D.C. No. CITY OF COSTA MESA, a city  8:10-cv-00402- incorporated under the laws of the AG-MLG State of California; CITY OF LAKE OPINION FOREST, a city incorporated under the laws of the State of California, Defendants-Appellees.  Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted May 6, 2011—Pasadena, California

May 21, 2012

Before: Harry Pregerson, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher; Partial Concurrence and Partial Dissent by Judge Berzon

5283 5286 JAMES v. CITY OF COSTA MESA

COUNSEL

Matthew Pappas, Law Office of Matthew Pappas, Mission Viejo, California, for the appellants.

James R. Touchstone and Krista MacNevin Jee, Jones & Meyer, Fullerton, California, for appellee City of Costa Mesa.

Jeffrey V. Dunn (argued), Daniel S. Roberts and…

Opinion by Judge FISHER; Partial Concurrence and Partial Dissent by Judge BERZON.

OPINION

The plaintiffs are severely disabled California residents. They alleged that “[c]onventional medical services, drugs and medications” have not alleviated the pain caused by their impairments. Each of them has therefore “obtained a recommendation from a medical doctor” to use marijuana to treat her pain. This medical marijuana use is permissible under California law, see Cal. Health & Safety Code § 11362.5 (d) (suspending state-law penalties for marijuana possession and cultivation for seriously ill Californians and their caregivers who “possess[] or cultivate[] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician”), but prohibited by the federal Controlled Substances Act (CSA), see 21 U.S.C. §§ 812 (b)(1)(B), 812(c) sched. I(c)(10), 841(a), 844(a).

The plaintiffs obtain medical marijuana through collectives located in Costa Mesa and Lake Forest, California. These cities, however, have taken steps to close marijuana dispensing facilities operating within their boundaries. Costa Mesa adopted an ordinance excluding…

concurring in part and dissenting in part:

The statutory interpretation issue at the core of this case is an unusually tough one, as the majority opinion recognizes. Looking at the language of § 12210(d)(1) alone, I would come out where the majority does — concluding that the statute is ambiguous. But unlike the majority, I would not declare a near-draw. Instead, looking at the words alone, I would conclude that the plaintiffs have much the better reading, but not by enough to be comfortable that their interpretation is surely correct. Turning then to the legislative history, I would again declare the plaintiffs the win *837 ner, this time sufficiently, when combined with the language considerations, to adopt their interpretation, absent some very good reason otherwise. And I am decidedly not convinced that the majority’s facile “trump” via the Controlled Substances Act (“CSA”) works, because, among other reasons, the supposed tension relied upon does not exist.

I therefore would not decide the case on the broad ground that medical marijuana users are not protected by the ADA in inclined to agree with the result the majority reaches on the narrower basis that the particular…