Dispensing (With) Law: Strict Constructionism & Medical Marijuana

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[UPDATE May 21, 2012. In my original article (below), I predicted that the California Supreme Court would take Evergreen Holistic for review. Friday’s Daily Appellate Report announced that they did so. This means Evergreen Holistic is no longer citable.]

Recently, I wrote about what happens to laws when law enforcement doesn’t like certain laws: they simply pretend the laws they don’t like don’t exist. Attorneys who have been around longer and know more than me, like Scott Greenfield, or Brian Tannebaum, or Mark Bennett, will point out that this is nothing new. Those with the power to do what they wish have always done what they wished. There is truth to the saying that there is nothing new under the sun.

With regards to medical marijuana dispensaries, there may finally be a little pushback from the appellate courts, even if they don’t make much more sense interpreting the law than the trial courts. 

If there was ever any doubt the Legislature intended to allow medical marijuana cooperatives and collectives to dispense marijuana, and we do not believe there was, the newly enacted [sic] section 11362.768 has made clear by its repeated use of the term “dispensary” that a dispensary function is authorized by state law.1

So far, so good.

The core of Evergreen contains within it something we — that would be me and other medical marijuana defenders — have been trying to tell cities and counties for some time now: they cannot ban what State law expressly allows. The law expressly allows medical marijuana dispensaries to exist; an outright ban on dispensaries  by local governments conflicts with State law and is therefore not possible.

Unfortunately, the core of Evergreen contains a very bizarre interpretation of the Medical Marijuana Program Act which, I suspect, means that Evergreen will not long be a citable case. For two reasons, actually, I expect the California Supreme Court to take it up for review. And, as anyone who knows how the law works can tell you, that means the case will no longer be citable as law and we’ll have to wait to see what the California Supremes say about it.

Which could take awhile.

It is the secondary core element which causes the problems I think will result in a Supreme review. The secondary core element of the new law — and trust me, this is actually new law, created by Evergreen — for dispensaries is this:

[W]e conclude off-site dispensaries are not authorized by California medical marijuana law because nothing in the law authorizes the transportation and possession of marijuana to stock an off-site location.

If that’s not clear enough for you, here’s another quote:

We discern no intent in the MMPA to authorize dispensaries to operate independently from a cultivation site.

How they get there involves an interesting leap of faith, some twisted logic, and — for a court that did not want to get into the pre-emption problem because the issue was not properly before them2 — the task of separating dicta from what might actually be part of the (again, twisted) argument in support of this holding.3

Before I go farther into that thicket, however, let me explain why I think the courts are having a tough time “interpreting” California’s medical marijuana laws.

You might think that the number one reason California courts are having a tough time interpreting medical marijuana law in California is because the medical marijuana laws in California are poorly written. There is some truth to that, but that is not the real reason. To a certain extent, in fact, the medical marijuana laws are only “poorly written” because of the real cause of the difficulty the courts face.

The real difficulty here is that the authorities do not want marijuana decriminalized. At all. Not even for medical reasons. Not even for those Americans whose suffering is unequivocally shown to be relieved by marijuana. These authorities, which include everyone in the federal government, nearly all those in California’s local governments, many of those in California’s state government, and almost all (but not all) law enforcement agencies, don’t want people using marijuana. They did not pass laws making medical marijuana readily available to seriously ill Californians. The voters did.

And, as we should all know by now, the only time anyone gives a shit what the voters want is in the run-up to an election. Even then, they simply tell people what they want to hear; in the normal course of events, nothing substantive ever comes of it.

The medical marijuana laws for the State of California qualify as “poorly written” only because their authors were not precogs; they failed to recognize the extent to which the authorities would go in resisting the decriminalization of medical marijuana. One of the earliest examples — demonstrating that even the courts would only grudgingly support the will of the voters — came in the case of People v. Trippett, where the court suggested that someone could be charged with a felony for transportation of marijuana if they carried the weed down a hallway to a patient’s room.4

Ok. Maybe that’s strictly-speaking true, but only for someone bound and determined to harass medical marijuana users and their supporters. Anyone with a lick of common sense is going to say, based on the obvious intent of the electorate, that the medical marijuana laws don’t envision that possibility.

As I said, the drafters were not sufficiently-developed precogs.

This same attempt at a literal reading of California’s medical marijuana laws pervades law enforcement. “Well, the law says x,” where x is some specific word, or phrase. “The law does not say y,” where y is some obvious implication of x — utilizing the kind of common sense that is common to everyone who considers the stated purposes of California’s laws in a non-adversarial manner. If you take an honest look at why the voters passed the laws they passed, and apply the laws with that in mind,  you don’t end up with stupid results like charging a caregiver with felony transportation for carrying marijuana from the kitchen to the patient’s bedroom.

“But the purposes are not the law,” you will hear the authorities (including courts) say. “If the People had wanted y, they should have made the law say y.5

Supreme Court Justice Antonin Scalia is often called a “strict constructionist.” In several speeches I’ve listened to, he states:

I am not a strict constructionist. I never use that term. I think strict constructionists give a bad name to those of us who are originalists. The Constitution should not be construed strictly. It should not be construed sloppily. It should be construed reasonably. If you were a strict constructionist, you would presumably think that Congress has the authority to censor handwritten mail inasmuch as all that the First Amendment protects is the freedom of speech and of the press. A handwritten letter being neither speech nor press, it may be cen–of course that’s not what the First Amendment means. “Speech” and “press” are stand-ins for the full range of human expression. And it doesn’t matter whether the expression is in handwriting, or semaphore, or Morse code, or burning a flag.6

What the Fourth Appellate District is doing in Evergreen is abandoning any reasonable interpretation of the statute in favor of a perverse and inconsistent “strict constructionism.” This is particularly clear from the language in the subsection titled “Procedural Posture, Evergreen’s Contentions, and Civil Code Section 3482″ of the Evergreen opinion.7

Statutory immunity for an alleged nuisance arises “only where the acts complained of are authorized by the express terms of the statute … or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury.8

In that subsection and in the next one titled “Standard of Review,” the court repeatedly uses words like “exactly what was lawfully authorized” and “scrutinize the statutes” and “powers expressly conferred.”9 The court also states:

[W]e ascertain the Legislature’s intent “with a view to effectuating the purpose of the statute, and construe the words of the statute in the context of the statutory framework as a whole….”10

They then go on — in a strict constructionist fashion as opposed to any reasonably interpretation — to decide that the Legislature made dispensaries legal, but only when the dispensary exists at the grow site.

Reduced to its essence, this statewide plan envisions locally-grown, locally-accessible medical marijuana. As we explain, that does not mean medical marijuana patients or their primary caregivers are confined to individualized efforts to grow a supply of their own medicine. Rather, they may band together with others to meet their need. But they must do so locally, in local cultivation projects, with distribution tethered to the cultivation site. ((Id. (emphasis added).))

Ultimately, the court says,

[W]e conclude a dispensary may be located at the site where its members collectively and cooperatively cultivate their marijuana.

And, furthermore,

Marijuana stocked at an off-site dispensary inevitably would exceed the amount authorized for any single medical marijuana user because, simply put, opening a dispensary as an outlet for only one person would be pointless.

The court does not explain how that analysis differs if the amount of marijuana stocked at the on-site dispensary exceeds the amount authorized for any single medical marijuana user. Apparently, the court believes that its analysis of Health and Safety Code section 11362.775 means on-site dispensaries are exempted from this analysis, but off-site dispensaries cannot be.

This is not completely outside the realm of possibility if, as I have already noted, you try to impose a strict constructionist, anti-medical-marijuana view on California’s medical marijuana laws, instead of following a reasonable interpretation. Read through the court’s opinion a half-dozen times, as I have, and you almost begin to believe it.

Yet that this is not a reasonable interpretation is shown by the fact that no other individual — not even law enforcement officers or local government officials who look for every loophole to shut down dispensaries — and, more importantly, no other court has come to this same analysis.

Therein lies another reason I believe this case will ultimately be taken up for review. It pretty much has to be taken up by the California Supreme Court, if for no other reason than to address the split in authority this case creates.

The split in authority comes because just about a week before Evergreen was decided by the Fourth Appellate District Court, the Second Appellate District Court reached a different conclusion in another case — Colvin — regarding the protections provided by the Medical Marijuana Program Act of 2004.11

Simply stated, Colvin co-owned and operated two geographically separated medical marijuana dispensaries. At least one of those dispensaries is located at a grow-site, based on the facts stated in the case, but as I will show in a moment, that does not prevent Evergreen from constituting a split of authority.

The sites in Colvin deliberately keep small quantities of marijuana at the dispensaries to discourage robberies. Colvin had just left one of the dispensaries where he presumably dropped off some marijuana and was transporting one pound of marijuana to the other dispensary when he was stopped and arrested on the transportation charge.

The Second Appellate District Court held,

The court found that Colvin was a qualified patient and that he was operating a “legitimate” “dispensary.” [footnote deleted] If Colvin, a qualified patient, was operating a legitimate medical marijuana cooperative, then he “shall not solely on the basis of that fact be subject to state criminal sanctions under” section 11360 (transportation or sale of marijuana).12

The Second Appellate District Court also stated:  

It is unclear what the trial court meant when it said that Colvin’s transportation of marijuana was unrelated to the cultivation process and was outside what section 11362.775 allows. There was no evidence that Colvin’s transportation of one pound of marijuana was for anything other than Holistic. To the extent the trial court ruled as it did because it believed that only cooperative or collective cultivators of marijuana can transport the product, Colvin/Holistic is a cultivator: Holistic has three onsite “grow rooms,” which the LAPD visited. Fourteen members of Holistic also grow marijuana for Holistic offsite. All of the marijuana Holistic distributes is from a cooperative member; none of it is acquired from an outside source. Thus, even under a reading of section 11362.775 limiting transportation of marijuana only to cooperatives that cultivate it, then Colvin was entitled to the immunity.13

At first blush, this paragraph might appear to erase any problems regarding a split of authority between Colvin and Evergreen. It does not because the clear statement of the Fourth Appellate District Court in Evergreen is that someone like Colvin, transporting marijuana away from the cultivation site when that marijuana was not for his personal use alone, would not be protected by Health & Safety Code section 11362.775.

Nowhere else does the MMPA address transportation, except in section 11362.775, which allows for transportation of medical marijuana in collective amounts at the cultivation site, as discussed. ((Evergreen, supra. (italics in original; underlining is mine).))

Evergreen says cultivators are protected while transporting marijuana only around the grow site. Colvin says they are protected while transporting marijuana for the collective when the collective itself is a “legitimate medical marijuana cooperative.”14

Ergo, we have a split of authority.

Now, it is possible that the California Supreme Court will take Colvin on review, leaving Evergreen intact. I don’t think that’s the best course of action myself, but I’m not — unfortunately for medical marijuana users — a California Supreme Court Justice. (Nor am I ever likely to be appointed to a judgeship even at the lower court levels.) The California Supreme Court may like the strict-constructionist-anti-reasonable-interpretation approach to medical marijuana law better.

Even if they do, though, I think they are better off taking up Evergreen. The logic of Evergreen is sloppy and tortuous and full of dicta. I would argue that’s because it is a strict constructionist approach — and a dishonest one at that. There is no more reason to believe that the Legislature intended to restrict cooperatives to cultivation sites than there is to believe they did not intend such a restriction. The Fourth Appellate District Court imposes its own view, inferring such a restriction by essentially “reading between the lines.” But the view of the Fourth Appellate District Court essentially ignores both the purpose of California’s medical marijuana laws and the way cooperatives, or collectives, normally operate — and I’m not talking about “medical marijuana collectives”; I’m talking about “collectives.” Period.

The bottom line on this is essentially the same as what I wrote in my article “When Law ENFORCEMENT Doesn’t Like the Law.” When it comes to medical marijuana and dispensing under the law, the authorities would rather dispense with the law. The more resistant the powerful elite — including the judges of our courts — are to the desires of the voters, the more carefully the law must be written because we cannot count on the courts to do a reasonable interpretation.

“Strict construction” is the last bastion of the tyrant.

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  1. City of Lake Forest v. Evergreen Holistic Collective, 2012 Cal. App. LEXIS 239 (February 29, 2012). []
  2. Qualified Patients Assn. v. City of Anaheim, 187 Cal. App. 4th 734, 755, 115 Cal. Rptr. 3d 89 (2010). []
  3. Dicta” are words spoken or written by courts which may appear to have something to do with their ruling, but which actually do not. Since they are not relevant to the holding of the court in a particular case, they do not count as law and are not often helpful in arguing future points in other cases. “An observation unnecessary to the decision of a court does not constitute binding precedent.” (Consumers Lobby Against Monopolies v. Public Utilities Com., 25 Cal.3d 891, 902, 160 Cal. Rptr. 124, 603 P.2d 41 (1979). []
  4. People v. Trippett, 56 Cal. App. 4th 1532, 1547, 66 Cal. Rptr. 2d 559 (1997). []
  5. Maybe that’s why they cannot understand the United States Constitution. The Founders, rather deliberately, did not spell out every single eventuality that might implicate constitutional consideration. []
  6. Justice Antonin Scalia at about the 44-second mark in this discussion (may require iTunes to access) with Chris Matthews before a group of 200 students. []
  7. I’d give you better cites on this, but the United States Postal Service — which needs to be finally put down so something better can take over — refuses to deliver my copy of the Daily Appellate Report in a timely fashion. If I’m lucky enough to actually receive the DAR, it will arrive anywhere from one to ten days late. It also doesn’t arrive in order: I will, for example, receive February 17th’s copy before I receive February 10th’s copy. Hopefully, you will read the opinion yourself and be able to find what I’m referring to using the sectional pointers, etc. I apologize for the United States Postal Service’s incompetence, but I have no power over them. Believe me: I’ve lost hours trying to straighten this out. Ultimately, they just quit taking my calls. []
  8. Evergreen, supra, citing Zack’s, Inc. v City of Sausalito, 165 Cal. App. 4th 1163, 1179, 81 Cal. Rptr. 3d 797 (2008)(emphasis added). []
  9. Id. (emphasis added). []
  10. Id. (emphasis added). []
  11. People v. Colvin (February 23, 2012). You’re going to have to find the point cites yourself. I’m currently writing from home and using Lexis instead of the DAR. The Lexis version is 2012 Cal. App. LEXIS 200. The Google Scholar version is here. []
  12. Colvin, supra. []
  13. Id. (italics in original). []
  14. Colvin, supra. []

About Rick

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also owns Fresno Criminal Defense.


  1. Rick, I’m so surprised that you missed correcting the grammar error in the second line. It should be “…know more than I,…” and not “…know more than me…”. You do it again later, but I didn’t go back to find it. I’m shocked!

    Kiss, kiss, love you – I didn’t write this comment for posting, so please erase it, don’t display it.

    • I hate to be the one to tell you, but you were incorrect in your post — and I didn’t catch it until now so I don’t know if I should remove it, but I feel like I can’t because of my driving need to educate certain writers for whom I have a great deal of love (and who should appreciate my use of “whom” in that last phrase). Which makes the whole thing more interesting anyway.

      At any rate, as I will argue below because I am a prepositionist, you are wrong. 😉

      The rule is that “me” is the correct form of the personal problem when used as the object. English teachers in certain parts of the country (the south and east, if I remember correctly) teach students to incorrectly to say “I” in constructions like that because they thought it more proper. In actuality, it sounds pretentious.

      If you read the article I linked above, though, you will know that this is a fight which has been fought for a long, long time.

      And, as I said, I happen to be a prepositionist. (Seriously.)

      I really do know this stuff. :) And that’s the sort of thing that allows you to make — or break — your own rules, as I did in the first paragraph when I used (to good effect, I think) an incomplete sentence, which is also a no-no.

  2. Christian Noll says:

    Police have always used their discretionary powers to suit their political needs, or that of their friends.

    “Justice” rarely has much to do with it.

    This from vtdigger.com

    Once again our besieged fourth amendment.


  3. I hate to be the one to tell you this, but I am not incorrect. All you need to do is add the implied verb to the end, and you can immediately see that “…know more than I do…” is correct, and that “know more than me do…” is not correct. Notwithstanding your attempt at an excuse by calling yourself a prepositionist, and the fact that, indeed, it does make me sound a bit pretentious, the use of “I” is the correct choice.

    However, we must agree to disagree, as this fight has been fought for decades between folks much wiser than you and I (see how I’ve done it again? Just go ahead and add the verb “are” at the end, and you’ll agree that it could never be “you and me”. In the sentence.)

    I don’t know if the certain writers you wish to educate are reading this series of posts, and frankly, since I asked you not to post this, I’m surprised that I am reading this here. What I said before was just in fun. What I really wanted to comment on earlier, but time got away from me, was the topic of medical marijuana. I do not have a prescription for this and do not use it. I have serious issues with nausea, appetite, and thus problems with proper nutrition, following more than a year-long battle with cancer, which has included four surgeries, many various treatments, and so much medication I need to carry lists in order to remember what they are and discuss them with my medical team. I have not taken any steps toward getting a prescription for medical marijuana, even though it might be very beneficial for me in my condition, due to the issues you have discussed at various times in your blog. I have great sympathy for the people who really need this, the people who grow it for themselves and others in need, and the people who operate dispensaries, and find it .(…I’m looking for the right word…”frustrating” doesn’t scratch the surface but will have to suffice…) frustrating that police will continue to ignore laws that they find inconvenient.

    Or we could go back to discussing how wrong you are in using “me”, when clearly it is “I” that is correct. 😉

  4. PS – I thought you were able to review and approve a comment before it was posted – yes/no?

  5. Once I’ve approved a poster in the past, they can post without needing approval in the future. So you posted the comment. I didn’t see it until hours later. By that time, I was concerned that if I took it down, it would look like I was censoring commenters and discourage others from posting.

    Unless something is clearly spam, or obviously quite nasty, I leave it up, as I’m sure you’ve noticed in the past. Since your comment wasn’t in either of those categories, and gave an opportunity for us to have some fun (at least, I think we had fun!), I left it up. Again, I didn’t want some people who might have seen it to think that because you said I made a misteakanation that I took it down.

    Anyway, as you and I both agree that this argument has been going on for a long time, we’re going to have to agree to disagree.

    So, in the end, I think you agree with me. 😉

  6. Tricky!

  7. Mr. Horowitz,

    Second year law student down here at Mississippi College, currently interning with the Federal Public Defenders and planning on practicing Criminal Defense after graduating. Found this blog, and gotta say I am addicted, and learning a ton. Keep up the great writing, and best of luck with your continuing practice


    • Thanks very much for your kind words. I wish I had more time for writing blog articles and it’s encouraging to know people are getting something from it. It gives me the encouragement to keep writing.

      Best of luck to you in your studies. Soak up what you can from the Federal Public Defenders! THAT’S a great opportunity for you!

  8. I dunno, the decision in evergreen does sound a little tortured, but it actually does seem in line with my (layman’s memory of) both the text and the intention of Prop 215 & SB420 (I love that the enabling legislation was SB420… f***ing priceless!). Those measures allow collectives and dispensaries, sure, but by collective they mean something like “several medical marijuana patients setting up a garden together” not “the corner pot store.” Then AG Jerry Brown’s office issued guidelines on the topic in 2008: http://bit.ly/yhYvwz

    I would suggest that while the Evergreen court may have taken strict constructionism to a whole new level, defending the wild west of ‘medical’ marijuana as legal requires an equally tortured stretch in the other direction.

    • I don’t know how you can say that when the legislation clearly states “dispensaries” are legal, using that term, and nothing in the legislation states “and those dispensaries must be located at the garden” (to add your term). Surely if the legislators wanted the dispensaries to be located only at the garden, they could have said so.

      Furthermore, until now, no one — not any other individual, not any municipality, and not any other court — has taken the legislation to mean that the dispensary could only be located at the grow site. Given how hard the municipalities wish to limit medical marijuana dispensaries, you’d think if the legislation indicated this limitation was possible, the municipalities would have jumped on it. This is particularly true in places like LA, where I assume it would make it more difficult to put a dispensary in some of the districts where they are currently located. Yet, as I point out in the article (and this comment), until now no one has come up with this idea.

      That the legislators were very able to say what they meant is demonstrated by what the law says about “making a profit.” The language of the statute indicates that the statute itself does not “authorize” the making of a profit. As the bill’s sponsor points out, the phrasing was very deliberately chosen. No legislation ever authorizes any business in California to make a profit. It doesn’t have to: businesses exist to make profits. The wording in the legislation came about because there were proponents for both the idea that profits could not be made and for the idea that profits could be made. The legislators wanted to support neither side and therefore worded the legislation to indicate that the legislation itself, by itself, did not indicate that a profit could be made. But, as Vasconcellas points out, that doesn’t mean a profit cannot be made. And, in the normal way of business in California, that means that profits can be made: it’s just not specifically “authorized” by the legislation. That is, the legislation doesn’t add (or subtract) anything regarding profits.

      If the legislators could be that careful in their choice of words for profit-making, I’m pretty sure they could have added “dispensaries must be at the grow sites only,” if that’s what they meant.

  9. brenda A. Linder says:

    Relevant points and observations. Although the Vasconcellas letter has not as of yet received a great deal of attention, I think the issues raised in that letter will be the next area of debate in the courts. The next time local authorities “raid” a dispensing collective under the guise of looking for evidence of “profiteering” I suspect the Vasconcellas letter will be at the center of the operator’s defense. By the way, I would love to comment here more often but I understand this is the primary place of business of the Internet Grammar Police.

  10. In the US alone, enforcement of cannabis prohibition costs taxpayers around $10 billion each year. If it was taxed and controlled like alcohol, cannabis sales could generate an estimated $6.2 billion in yearly tax revenue. Cannabis has also been shown to ease symptoms of people with HIV/AIDS, cancer, multiple sclerosis and many other medical issues. It has been successfully used to TREAT nausea, appetite issues, glaucoma, muscle spasms, and many other types of pain. In 2010, nearly 45,000 Americans were serving time in state and federal prisons for nonviolent cannabis possession. In that same year, over 700,000 Americans were arrested for the same crime. The estimated total cost to the taxpayers is $9,000,000,000

    The arguments for weed are endless: (1) It’s impossible to overdose and there is no hangover; (2) People don’t get violent when they are on weed like they do on alcohol; (3) Its smoke is not carcinogenic (cancer-causing) like cigarette smoke (and even if that were an issue you can eat it in brownies or use a vaporizer) (4) It’s cheaper than alcohol; (5) It’s much safer to drive on than alcohol; (6) Many successful people have smoked or still do smoked weed (many Presidents of the United States, famous scientists such as Carl Sagan, and countless musicians, writers and artists; (7) It’s not physically addictive (it’s really only addictive in the sense that fun is addictive, fun is addictive in many things besides weed), some people get addicted to television for example); (8) It’s no more of a gateway drug than alcohol (most pot smokers eventually end of quitting having over done any other drug besides alcohol).

  11. I hope every government will legalize the usage of marijuana as it has a lot of health benefits to our body…
    Less Sickness for everybody will make each country more prosperous and developed.


  1. […] If the STATE Legislature cannot place limits on the amount of marijuana because of the CUA, neither can any LOCAL governments. State law trumps local ordinances. For more on that, see my article “Dispensing (With) Law: Strict Constructionism & Medical Marijuana.” […]

  2. […] a previous post, “Dispensing (With) Law: Strict Constructionism & Medical Marijuana,” I predicted that the California Supreme Court would take the case of City of Lake Forest v. […]