[UPDATED: Everyone Thinks Court Will Uphold Bans] California Supreme Court Weighs Future of Medical Marijuana

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Click to next page for an update where I admit nobody agrees with my reading of oral arguments yesterday.

ORIGINAL POST, Feb. 5, 2:00 p.m.: The fate of California's medical marijuana movement is now in the hands of the seven justices of the California Supreme Court.

For two hours this morning, the justices listened to arguments from two attorneys, San Francisco-based J. David Nick, and Orange County's very own Jeffrey Dunne, who has represented various cities including Lake Forest, which have banned marijuana dispensaries. The case in question, in fact, stems from a lawsuit filed by a shuttered dispensary against the city of Riverside, which contends that it is illegal for cities or counties to enact bans against activity that is legal under state law.

Speaking on behalf of the pro-medical marijuana community at the hearing, attorney Nick succinctly summed up the argument. "It's a very simple rule," he said. "Local governments do not have the authority and never have...to ban what the state leg has made lawful."

Much of the discussion today centered on the question of whether banning something can be construed to be just another way of regulating it. As the justices seemed to agree, California's Medical Marijuana Program Act, which became state law in 2003, required municipalities to regulate the enforcement of Proposition 215, the ballot initiative passed by voters in 1996 that legalized marijuana for medical purposes. Dunne did his best to convince the court today that when cities ban pot dispensaries, they are simply regulating them, albeit in a very harsh, existential manner. 

The conflict between state and federal law, which prohibits pot, has made California's medical marijuana industry a mess. It's anyone's guess how the justices will rule, but they didn't seem to buy Dunne's argument. Regulating an industry is one thing. Banning it is something else. Stay tuned.

UPDATE, Feb. 6, 9:30 a.m.: Okay, so basically nobody agrees with me on this. After posting yesterday that the justices didn't seem to agree with Dunne's argument that banning is the same as regulating, I noticed that I was just about the only observer who thought this was important. Everyone else from the Los Angeles Times to NPR seems to agree that the justices feel that if state law required cities and counties to allow pot dispensaries to operate, the law would say so explicitly, which by all accounts it does not.

"California Seems Inclined to Uphold Bans on Pot Shops," reports one typical example LA Times story. "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 Times reported, quoting Justice Ming W. Chin thusly:  "The Legislature knows how to say 'Thou Shall Not Ban Dispensaries,' They didn't say that."

The court has 90 days to issue its ruling, deciding the fate of roughly 200 local bans throughout California.

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