Happy 2012!

Every year about this time, I am faced with a dilemma.  Do I prepare a list of resolutions or not?  In the past, I have diligently done so with a hoped for weight loss almost always at the top of the list.  Sometimes my wishes were general, i.e., "peace on earth," "exercising more," or they involved specific items, such as writing in my journal on a daily basis or walking for 30 minutes a day.  Other years have gone by and I made no resolutions.  Why not?  Because I make resolutions every single day and January 1st was just another day.  That line of thinking eliminated lots of pressure because I could take a failed resolution and fashion it into a brand new for the following day.

I have been done this blog for several years now.  With the birth of Google+, Twitter, and Facebook, I am told that  blogging is dead.  My blog is written mostly for trial lawyers, so it would be hard to imagine that a mainstream audience might be interested in recent appellate cases if I were to post publicly on Google+.  Or perhaps I am underestimating a large segment of the population.

I find myself being interested in events beyond my appellate practice.  I listen and watch news programs - I love Rachel Maddow! - when before I might have filled up that time with episodic comedies or classic movies.  Last month I traveled to Cuba to conduct some research on its legal system, only to discover that one cannot accurately assess Cuba's legal system without considering its political and social systems.  It was a valuable mission and I can't wait to report on my visit and share my observations.

While I enjoy my appellate work, I want to devote time to more creative endeavors, such as photography and creative writing.  So much is happening in the world right now that I find I cannot stick my nose in a law book and ignore it.  That means that my blog will change too.  I hope you enjoy it.             

HAPPY HOLIDAYS TO ALL

Oh, let's forget about work and just enjoy the Holiday season.   I hope you appreciate what you have and your friends and family.  I'll be back in January 2012!  

Prop. 8 supporters celebrate the California Supreme Court's decision in Perry v. Brown

In Perry v. Brown, 2011 Cal. LEXIS 11683, filed on November 17, 2011, the Supreme Court of California was asked by the United States Court of Appeals for the Ninth Circuit the question of whether the official proponents of an initiative measure have standing to defend the constitutionality of the initiative or appeal a judgment invalidating the initiatve when public officials refuse to do so.

The Supreme Court decided a procedural issue that might arise in any action involving an initiative.  In the federal case, the opponents of Proposition 8 are challenging its constitutionality.  Proposition 8 would add a section to the California Constitution providing that "[o]nly marriage between a man and a woman is valid or recognized in California."  The Supreme Court was not deciding the substantive question of the constitutional validity of Proposition 8, which will be decided by the Ninth Circuit.

The Court noted that in the past official proponents of initiative measures have been allowed to participate as parties, either as interveners or real parties in interests, and they did not have to show that their property, liberty or other personal legally protected interests would be affected if the measure was invalidated.  They were also allowed to participate in such lawsuits whether or not the government officials were also defending the measure. 

In an opinion by our new Chief Justice Cantil-Sakauye, the Court wrote that in situations where the public officials have declined to defend the initiative's validity, and in light of the "nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution . . . and the unique role of initiative proponents in the constitutional initiative process . . .," it would constitute an abuse of discretion to deny official proponents a role in the proceedings.  (Opn. , pg. 10.)  The Court continued:

"In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, sec. 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state's interest  in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment."

(Opn., pgs. 10-11.)

I know, that's a fine way to start the Holiday season.  Now the 9th Circuit can work on the substantive aspects of the appeal, and hopefully, Proposition 8 will be declared unconstitutional.

Have a Happy Thanksgiving!

A new decision that will banish medical marijuana dispensaries and collectives

The Court of Appeal in the Fourth Appellate District, Division Two in Riverside just filed its opinion in City of Riverside v. Inland Empire Patient's Health and Wellness Center, Case No. E052400.  Inland Empire appealed from the trial court's finding that its dispensary constituted a public nuisance per se and ithe court's issuance of a preliminary injunction enjoining Inland Empire from operating in Riverside.  You can find the opinion here: http://www.courtinfo.ca.gov/opinions/documents/E052400.PDF.

Inland Empire claimed Riverside's ordinance was preempted by state law, and in particular, the Compassionate Use Act of 1996 and the Medical Marijuana Program Act (MMPA).  The court disagreed and affirmed the lower court's judgment.

According to Riverside's zoning codes, medical marijuana dispensaries are prohibited.  Riverside's zoning code also state that any use that is prohibited by state and/or federal law is prohibited, and any violation of its code is deemed a public nuisance and subject to abatement.

In a 27-page opinion, the appellate court found that the CUA and MMPA, which it narrowly construed to constitute a limited criminal defense, did not touch on land use issues or prohibit a city from banning dispensaries.  It stated, "[N]othing in the CUA or MMP sugggests that cities are required to accommodate the use of medical marijuana and MMD, by allowing MMD's within every city.  Nothing stated in the CUA and MMP precludes cities from enacting zoning ordinances banning MMD's within their jurisdiction.  Furthermore, those who wish to use medical marijuana are not precluded from obtaining it by means other than at an MMD in Riverside."  (Opn., pgs. 22-23.)

While the CUA and MMPA does envision local government regulations, it does not explicitly allow banning collectives or dispensaries.  The court disagreed, fiding that a ban is a "lawful method of limiting the use of property by regulating and restricting the location and establishment of MMD's in the city . . . A ban or prohibition is simply a type or means of restriction or regulation."  (Opn., pg. 25.)

Given this Court's decision, one might expect to see the cities and counties enacting absolute bans to collectives and dispensaries.  It might be one way for them to eliminate the costs of litigation incurred in fighting the establishment of such groups.  Coupled with the recent actions by the federal authorities in seizing bank accounts and properties, one might easily conclude the forces of the federal and local governments - not necessarily the State - are aligned against group activities involving medical marijuana. 

The story is not yet over as it is anticipated that Inland Empire will seek review from the California Supreme Court.  There are other cases involving the same issue filed in other districts, and if one district were to conclude MMDs cannot be banned, then the matter will eventually have to be resolved by the California Supreme Court or the State legislature. 

It also means that qualifying patients will have to struggle to find any dispensary that is open to them, even if it involves a lot of travel.  Growing in the home may also be an option, but given that the immediate source of medical marijuana may be cut off, anyone who starts growing now will have weeks and months to wait before harvesting a crop.  As more and more people learn of the medicinal effects of marijuana, it will be impossible to put the geni back into the bottle, and we can expect to see a surge in the purchase of illegal drugs. 

Whether we will also see an increase to fend off the drop in sales for prescription painkillers remains to be seen.  By mandating cholesterol tests for kids as young as 11, perhaps the big pharmaceutical companies can make up the gap in prescribing statins to adolescents, confident in the knowledge that if they can give statins to children at 11, they may have a steady stream of income in this area for the next 60 years of that child's life.

The correct use of a motion in limine

In Johnson v. Chiu (2011) 199 Cal.App.4th 775, the Fourth Appellate District, Division Three examined what it considered to be "a textbook example of the inappropriate use of in limine motions."  In that case, the plaintiff sued Dr. Chiu for medical malpractice and negligent maintenance of a laser machine that malfunctioned during a skin treatment.  The trial court granted summary adjudication on the medical malpractice cause of action, but denied summary judgment on the negligent maintenance claim.  After the case was sent to a second judge for trial, the defendant brought a motion to dismiss the negligent maintenance claim, labeling it as a motion in limine.  The motion was denied and defendant filed a writ, which was also denied.  Not one to give up, the defendant brought his motion in limine before a third judge, who was assigned to try the case, and the motion was granted.  What perserverence!  Then the plaintiff appealed.

The court examined the use of a motion in limine, noting it is a motion to exclude evidence before the evidence is offered a trial, on grounds that would also be sufficient to object or move to strike the evidence.  The motion is brought in advance of trial to avoid trying to undo damage (or "unring the bell") of evidence heard by the jury.  It is not designed to replace dispositive motions.  The court noted: 

"'[M]otions in limine deal with evidence.  May this particular documentbe admitted?  May an expert witness testify to certain facts or conclusions?  An in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication.'"

(Id. at p. 780.)  The motion in limine was dispositive of plaintiff's action and it sought a determination that either the pleading was insufficient or there was no triable issue of fact.  Demurrers, motions for judgment on the pleadings, and summary judgment motions should be used to deal with such challenges.  Here, hwever, the plaintiff failed to challenge the motion in limine as a disguised (and insufficient) motion for summary judgment and a motion to reconsider.  She conceded this omission and withdrew her procedural challenge.

Nonethless, the appellate court found that the motion failed on a substantive level and that the trial court erred in granting defendant's motion.  The judgment was reversed and plaintiff will now be able to continue on with her negligent maintenance cause of action.