California Supreme Court dismissed Pack v. Superior Court

For those of us who are involved in medical marijuana, we have been watching how the Supreme Court handles several important appeals.  The most anxiously watched case is City of Riverside v. Inland Empire Patient's Health and Wellness Center, Case No. S198638, which deals with the issue of whether cities and counties can absolutely ban medical marijuana dispensaries and patients' associations.  An unpublished decision also from the Fourth Appellate District, Division Two, entitled  People v. G3 Holistic, Case No. S198395, raises the same issue.  Several amicus briefs have been filed in both cases.  These cases are fully briefed and are waiting for oral argument dates.

Another medical marijuana case, Pack v. Superior Court, Case No. S197169, involved the City of Long Beach's ordinance, which required high fees to participate in a lottery system, was also pending before the Supreme Court.  At least until August 22, 2012, when the Court dismissed the case, ruling:

"On January 18, 2012, we granted review of the Court of Appeal's decision in this matter. (See Cal. Rules of Court, rule 8.500(a)(1).) The sole issue presented by that decision was whether, as mandamus petitioners Pack and Gayle argued below, City of Long Beach Ordinance No. ORD-10-0007 (Ordinance No. 10-0007), imposing a regulatory permit scheme for the lawful operation of medical marijuana collectives in the city, was preempted by the federal Controlled Substances Act (CSA). However, in their brief to this court, and by a letter from their counsel, the mandamus petitioners have now abandoned their federal preemption argument in favor of unrelated issues not raised or decided at any prior stage of this proceeding." 

The Supreme Court also noted the subject ordinance had been repealed and replaced, and thus the appeal was moot.  In addition, the legal validity of the new ordinance had not been previously considered, and therefore, it was not ripe for the Supreme Court.  (See http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1994201&doc_no=S197169.)

This appeal was heavily briefed, including several amicus briefs and responses.  Then it was dismissed.  Some, including medical marijuana supporters, may celebrate that dismissal, but it still represents a lot of work for the litigants.  I am sure it is a major disappointment to the petitioners, but at least the Riverside cases are still pending.  Meanwhile, petitions for review have also been filed in  two medical marijuana cases in Los Angeles,  County of Los Angeles v. Alternative Medicinal Cannabis Collective, Case No.  S204663, and 420 Caregivers  v. City of Los Angeles,  Case No. S204684.

For most appellate attorneys, arguing before the Supreme Court is one of the highpoints of your career.  In fact, you can work as an appellate attorney for your entire life and never make it to the Supreme Court.  But to get that far and put so much time and effort in briefing, only to have the case dismissed, must be a tough way to resolve a case.  Keep in mind, however, that the dismissal does not revive the Court of Appeal's published decision. It remains depublished.  See CRC rule 8.15(e)(1) "Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing."  The Supreme Court has the power to publish the Court of Appeal Opinion and it did not.  See also CRC, rule 8.528(b)(3) "After an order dismissing review, the Court of Appeal opinion remains unpublished unless the Supreme Court orders otherwise." However, the case is still binding on the parties.