Hey, where did my medical marijuana clients (and due process) go?

My mother always told me that having a genuine and youthful excitement about life would keep me young.  I have tried to live with this principle in mind.  For instance, you could have found me at the very first performance of Lord of the Rings, praying (okay, let's downgrade that to hoping) that I would not be hit by a car on my way to see the final episode of The Return of the King.  You would also find me at every new Disney animation film, laughing louder than the kids.  It's a principle that has given me hope for the future and allows me to avoid becoming jaded in my old age.

The federal government is testing my philosophy.  Of course, I won't try to take this personally but I am facing a tough reality that tests my childish hopes.  As most of you know, I represent several medical marijuana collectives in Lake Forest.  Despite California law that confirms the right of medical marijuana patients to obtain marijuana for their illnesses, the City of Lake Forest insists that collectives and dispensaries can be absolutely banned in the city.

Okay, so we both have our legal positions.  That's what the courts are for.  Unfortunately, the City of Lake Forest has spent an awful lot of money defending its position.  My clients are not nearly as wealthy, or maybe I am just a cheap date, but I have yet to reap the benefits of even a fraction of what the City has paid to its attorneys.  My tools for this battle have been my mind and my research and writing abilities.  They have always served me well.  In fact, one of the things I like about being an appellate lawyer is that you don't have to get your hands dirty, as you might in trial, and its not nearly as confrontational.  When the facts of a case are boiled down to the essentials, an appeal is really about judicial error.  Being an analytical type, I am comfortable in this playground.

By the feds have changed that game plan.  Being a good lawyer is just not enough.  Having the strength of California law on your side is meaningless.  As I prepare for oral argument on the issue of whether the city can ban collectives, I have just discovered - yes, within the last hour - that my clients are gone.  First, the feds seized the bank accounts of the property manager and told the landlord that he or she better evict these evil collectives.  If the property manager failed to do so, then the feds just might seize the real property as well.  Three-day notices to quit were promptly served.  Today I am told by an unnamed (and frightened) source that my clients were told if they did not vacate within three-days, the feds would raid the collectives and shut them down.

To use a term employed in tennis -- Advantage City.  No due process, no right to adjudicate issues in an unlawful detainer and the appellate court, no discussion, just goodbye and don't slam the door behind you.   What happened to my clients?  Perhaps once they are closed down, they might not have the ability to continue the fight. Times are tough, but maybe they will get tougher for me now that my clients have been sent packing.

This is not the America that I have believed in, a land that pays respect to the rights of others and the rule of law.  Worse yet, I have to wonder what will happen to the patients.  I include in my concern the "seemingly healthy young males" that might be suffering from cancer and other diseases but don't advertise their diseases so judgmental people can determine, without medical expertise, if these people are truly suffering.  I also find myself thinking about the man who showed up recently at one of the collectives, struggling to get up the stairs with his crutches and legs that refused to obey him.  And what about the guy who has been struggling to overcome AIDS since 2000?  Don't these people have any rights?  It is a sad day to have to tell these people that their medicine is beyond their reach.

As Michael Moore has often said, we are living in a country ruled by fear.  I refuse to give in to fear.  I have the law and the Constitution on my side!  Oh, wait, there is someone knocking on my door.  The pounding is getting heavier.  I'll be back . . .

A new appellate decision from the Second Appellate District in Pack v. Superior Court (City of Long Beach)

The Court of Appeal in the Second Appellate District, Division Three in Long Beach filed its opinion in Pack v. Superior Court (City of Long Beach), Case No. B228781, in which the plaintiffs filed a declaratory relief action, arguing the city's ordinance is invalid because it is preempted by federal law.  The city set up a system which required a $14,742 non-refundable application fee, and if the collective was approved, it could participate in a lottery for a limited number of permits.  If you were lucky enough to obtain a permit, your collective would pay a minimum of $10,000 annually for a license and be subject to heavy regulations, including having your marijuana analyzed for quality control by an independent lab.

The appellate court held that the ordinance, which permits and regulates medical marijuana collectives, is preempted by federal law, or more specifically, the federal Controlled Substances Act (CSA).  Enacted in 1970, the CSA puts marijuana on Schedule 1, and as such, this scheduling reflects a government determination that marijuana has no accepted medical use.  It is also illegal under federal law to maintain any place for the purpose of manufacturing, distributing, or using any controlled substances.  (21 U.S.C. sec. 856(a)(1).)

California disagrees with this position, and in 1996, a majority of citizens approved the medical use of marijuana by approving Proposition 215, which is known as the Compassionate Use Act (CUA).  In 2003, the Legislature then enacted portions of the Health & Safety Code, now known as the Medical Marijuana Plan Act (MMPA), which seeks to impose some order on this scheme.  (Health & Safety Code sections 11362.5, et seq.)  The MMPA decriminalizes under state law the acts of collective cultivation and maintaining a place for sale or use of medical marijuana.

The Long Beach ordinance defines a "collective" as an association of four or more qualified patients and their primary caregivers who associate at a location within Long Beach.  Plaintiff's complaint did not allege that the ordinance applied to personal cultivation outside of a collective and the City's attorney conceded that the ordinance did not apply to prohibit personal cultivation and possession.  As such, the appellate court did not address this argument.

The plaintiffs argued the City's ordinance went beyond mere decriminalization and "permitted" conduct prohibited by the federal CSA, and for that reason, it was preempted.  And since all drug use, according to federal law, is recreational and illegal, then any ordinance establishing a permit scheme for medical marijuana collectives is an obstacle to federal law and thus preempted.  The appellate court remanded the case back to the trial court to determine if any provisions of the ordinance could be severed from the preempted portions and given independent effect. 

But he (or she) is lying!

I have to admit that I am getting caught up in Google+.  It is much more interactive than this blog or even Facebook, and I have taken to following people with many different interests.  Some say that blogs will be a thing of the past and most "blog" entries will migrate to services such as Google+.  But I am here for now.

I was watching another round of oral argument before the court of appeal last week when one of the attorneys made a reference to opposing counsel.  The justice stopped the attorney, asked what he meant by the remark, and chastised him for making the reference.  It wasn't offensive by any means, but the attorney had used the opposing counsel as an example when he might have used any other California resident.

I often remind attorneys not to make personal attacks, not even a mention that appears to be a personal attack, on opposing counsel.  The courts just don't like it.  No matter how many times I have raised this point, attorneys continue to make personal attacks.  It puts the court in the uneviable position of trying to decide just who is lying.

Okay, but what about when the other side is dishonest, or shall I say, just out and out lying?  Sorry, I think you need to banish the word "liar" from your vocabulary.  I like to think the other side has forgotten, overlooked, or even is suffering from temporary amnesia.  We often don't see the same event eye-to-eye.  First, you need to consider whether the alleged lie could be the result of a different interpretation of the same set of facts.  Second, give the person the benefit of the doubt that maybe he or she misheard or misinterpreted the communication.

Okay, so we've eliminated all of that, and yes, the attorney is really just lying.  Sometimes it does happen, although I suspect it might happen less than we believe it does.  If the truth can be revealed by resorting to facts, then by process of elimination, the attorney is wrong.  Leave it to the court to suspect he or she is lying.  If you have to write a declaration countering what has been presented as the truth, present your version, stating your belief that opposing counsel is in error or has possibly overlooked that letter or later conversion.  If you do it in an objective style, then you will increase your credibility without "attacking" the other attorney.

Here's an example:  several years ago I was blasted in a Respondent's Brief for not addressing  in my Appellant's Opening Brief a case cited below at the trial level.  He argued that it was proof I was trying to pull a fast one or worse, an acknowledgment that my position sucked (a legal term).  I thought I had mentioned the case.  It was there in the table of contents.  When I went through the brief, I could see that one page was missing, which contained a discussion of the case.  I was able to fix the omission and dealt with the case.  I was apologetic about the omission and thanked opposing counsel for pointing out an error that I could correct.  I did not resort to any personal attacks, but I think he looked badly for engaging in such an aggressive attack only to be proven that I was not avoiding the case.

A nice review on An Appeal to Reason

Fellow appellate attorney Mary-Christine (or affectionately known as M.C.) Sungaila posted a very nice book review of An Appeal to Reason, on http://socal-appellate.blogspot.com/2011/09/introducing-guest-bloggers.html

I do appreciate her recommendation to pick up my book, along with a few others, for your summer reading but I am not sure I would ask anyone to go that far.  I am a big advocate of balance in one's life and find that far too many attorneys are working almost round the clock.  The new social media does not make it any easier because we attorneys are now so accessible.  I have even read about the lack of sleep and insomnia experienced by attorneys who cannot "shut off their minds" at the end of the night.  I would much rather take advantage of a well-rested attorney who can then learn some valuable pointers from my book.  Read it first thing in the morning over a steaming cup of coffee (skip the donut, please!) or maybe at the end of the day.  But for summer reading at the beach?  My advice is to put the book down, jump into our California surf and play with your children or loved ones.  

A word of warning about frivolous appeals

In Foust v. San Jose Construction Co. (2011) 198 Cal.App.4th 181, the plaintiff employee appealed from a judgment that found the defendant employer had not breached a written employment contract.  The plaintiff argued the trial court erred in finding his contract was subsequently modified.  The plaintiff elected to proceed with the appeal from a three-day trial without a reporter's transcript and designated only a partial clerk's transcript.  The defendant brought a motion for sanctions.

The appellate court found that plaintiff's showing on appeal was insufficient and the appeal was frivolous.  Without a reporter's transcripts or the exhibits presented below, the appellate court could not undertake a meaningful review of plaintiff's argument on appeal.   It stated, "[Plaintiff] seems to want this court to reevaluate his credibility and reweigh the evidence presented below, but we can do neither."  (Id. at p. 188.)   The court also noted,  "Generally, appellants in ordinary civil appeals must provide a reporter's transcript at their own expense . . . In lieu of a reporter's transcript, an appellant may submit an agreed or settled statement."  (Id. at p. 186.)

The appellate court noted that plaintiff argued the evidence below was insufficient, but elected to proceed without a reporter's transcript.  The lower court's findings were inconsistent with plaintiff's argument, another reason the appellate court wanted to see the reporter's transcript and exhibits. (The trial court also noted that plaintiff's testimony was not credible, another nail in the coffin.)

The appellate court concluded that because plaintiff's appeal was without merit, this finding supported defendant's claim the appeal was filed for an improper purpose.  Defendant requested $8,743 in sanctions, representing the attorney's fees and costs in defending the appeal.  Not wanting to be left out, the appellate court also ordered that sanctions be paid directly to the clerk of the appellate court to compensate the state for the cost of processing the appeal.  The total award was $8,743 payable to the defendant and $6,000 payable to the court, for a total of $14,743, not to mention the attorney's fees and costs incurred by the plaintiff in pursuing this appeal.

Now it could be that the appeal was brought to harass defendant San Jose Construction, but it might also be that the plaintiff was either trying to save money rather than ordering the reporter's transcripts of the entire trial and by preparing an abbreviated clerk's transcript, or that the plaintiff was intentionally trying to hide the true facts from the court.  Clients will often want to reduce the high costs of obtaining a full reporter's transcript, but the appellate attorney provides an incomplete record at his or her peril.  This client has gained nothing and lost more money by pursuing an appeal without a meaningful record.