UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10-55769 _______________________________________

** PRELIMINARY INJUNCTION APPEAL **

MARLA JAMES, WAYNE WASHINGTON, JAMES ARMANTROUT, CHARLES DANIEL DeJONG,

Plaintiffs-Appellants,

v.

THE CITY OF COSTA MESA, CALIFORNIA, a city incorporated under the laws of the State of California; THE CITY OF LAKE

FOREST, CALIFORNIA, a city incorporated under the laws of the State of California,

Defendants-Appellees

On appeal from an order of the District Court denying Appellants’ request for a preliminary injunction,

Central District of California Honorable Andrew Guilford

No. SACV10-00402 AG (MLGx)

APPELLANTS’ REPLY BRIEF Matthew Pappas Law Office of Matthew Pappas 24611 Spadra Lane Mission Viejo, CA 92691 (949) 371-7881

 

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................... III

TABLE OF ABBREVIATIONS .......................................................................... VI

DISCUSSION ........................................................................................................... 1

I. ZONING AND ACCOMODATION ISSUES ARE OUTSIDE THE SCOPE OF THIS PRELIMINARY INJUNCTION APPEAL ........................... 1

II. CONTRARY TO THE CITIES’ ASSERTIONS, CONGRESS INTENDED THE 12210(D) EXCEPTIONS TO INCLUDE RATHER THAN EXCLUDE THE DISABLED APPELLANTS ..................................................... 2

A. THE REJECTED SENATE ILLEGAL USE OF DRUGS PROHIBITION WOULD HAVE

DISQUALIFIED THE DISABLED APPELLANTS FROM ADA PROTECTION. ...................... 4 B. THE CITIES’ INTERPRETATION OF 12210 REQUIRES SUBSTANTIAL INFERENCE

AND SPECULATION. .................................................................................................. 5 C. THE 42 U.S.C. § 12210(A) PROHIBITION IS AN ADA QUALIFICATION PROVISION

THAT IS SEPARATE AND DISTINCT FROM THE CSA. ................................................... 6 D. BY OMITTING AND REPLACING THE SENATE VERSION OF THE ADA’S 12210

ILLEGAL DRUG USE PROVISIONS, IT IS UNDERSTOOD THAT CONGRESS DID NOT

INTEND THE CSA AUTHORIZATION REQUIREMENT INFERRED BY THE DISTRICT

COURT AND BY THE CITIES. ...................................................................................... 8 E. THE ADA AMENDMENTS ACT OF 2008 WAS PASSED TO REINSTATE THE BROAD

APPLICABILITY OF THE ADA. ................................................................................... 8 F. THE CSA DOES NOT TRUMP OTHER FEDERAL LAWS. ........................................ 10 G. ADA’S SECTION 12210 ADDRESSES ELIGIBILITY AND HAS A DIFFERENT PURPOSE

THAN THE CSA. ..................................................................................................... 10 H. THE ‘MISCHIEF’ CONGRESS SOUGHT TO REMEDY IN 12210 IS NOT THE

‘MISCHIEF’ ALLEGED BY THE CITIES IN THIS CASE. ................................................. 11

III. CONGRESS ACTED PURSUANT TO ITS ARTICLE 1 POWERS WHEN IT ALLOWED THE FEDERAL DISTRICT OF COLUMBIA TO IMPLEMENT INITIATIVE 59............................................................................ 13

A. CONGRESS’ ACTIONS IN PUBLIC LAW 111-117 ALLOWED THE DISTRICT’S

LOCAL GOVERNMENT TO CONSIDER AND IMPLEMENT INITIATIVE 59 ...................... 13 B. DESPITE CITIES’ SUGGESTION, THE “BARR AMENDMENT” WAS MORE THAN A

HOME RULE ACT APPROPRIATIONS RESTRICTION. ................................................... 15

 

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C. CONGRESS ACTED DELIBERATELY WHEN IT ALLOWED THE DISTRICT OF

COLUMBIA TO IMPLEMENT INITIATIVE 59 AND LEGALIZE MEDICAL MARIJUANA .... 16

IV. CITIES MISSTATE THE DISABLED APPELLANTS’ EQUAL PROTECTION ARGUMENTS ............................................................................ 18

A. CONGRESS HAS GIVEN WHAT ARE “TRADITIONALLY STATE POWERS” TO THE

CITIZENS OF WASHINGTON D.C. ............................................................................ 18 B. APPELLANTS DO NOT ASSERT THAT D.C. STAT 13-138, ET SEQ., APPLIES

NATIONWIDE NOR DO THEY ASSERT THAT LAW APPLIES IN LAKE FOREST OR COSTA

MESA. .................................................................................................................... 20 C. D.C. STAT. 13-138 LEGALIZES MEDICAL MARIJUANA ...................................... 21 D. CONGRESS’ ACTION IN WASHINGTON D.C. NECESSARILY VITIATES CONFLICT

AND OBSTACLE PREEMPTION IN THE LIMITED AREA OF MEDICAL MARIJUANA ........ 21 E. THE OCTOBER 2009 JUSTICE DEPARTMENT POLICY MEMORANDUM SUPPORTS

APPELLANTS’ PREEMPTION ANALYSIS. ................................................................... 25

IV. CASE AUTHORITIES CITED BY THE CITIES ARE NOT APPLICABLE IN THIS CASE ............................................................................ 26

CONCLUSION ....................................................................................................... 30

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7) ..................…31

CERTIFICATE OF SERVICE ………………………………......................... 32

CERTIFICATE OF MATCHING PAPER COPY …………......................... 34

 

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TABLE OF AUTHORITIES

CASES

Assenberg v. Anacortes Housing Auth., 268 Fed. Appx. 643 (9th Cir. 2008) ........ 26 Brecht v. Abrahamson, 507 U. S. 619 (1993) .......................................................... 19 Caminetti v. United States, 242 U.S. 470 (1917) ...................................................... 3 City of Hartford v.Tucker 621 A.2d 1339 (Conn. 1993) ......................................... 23 Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146 (1992) .................................... 3 Crowder v. First Federal Savings & Loan Ass'n of Dallas, 567 S.W.2d 550, Tex.

App. 1978 ......................................................................................................... 3, 11 Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982) ................ 22 Gonzales v. Oregon 546 U.S. 243 (2005) ......................................................... 10, 20 Gonzales v. Raich, 545 U.S. 1 (2005) .............................................................. 19, 26 Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989) ..................................... 7 Heydon's Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (King's Bench 1584) .................. 11 Jackson v. District of Columbia Bd. of Elections and Ethics, No. 10-CV-20 (D.C.

Court of Appeals, 7/15/2010) ............................................................................... 14 James v. City of Costa Mesa, 2010 U.S. Dist. LEXIS 53009 (C.D. Cal. 2010) ....... 2 Jones v. Rath Packing Co., 430 U. S. 519 (1977) .................................................... 22 Malone v. White Motor Corp., 435 U. S. 497 (1978) ....................................... 22, 24 Marijuana Policy Project v. U.S., 304 F. 3d 82 (D.C. Circuit, 2002) .............. passim Miss Universe, Inc. v. Flesher, 605 F.2d 1130 (9th Cir. 1979) ................................. 1 Overseas Education Ass'n v. Federal Labor Relations Authority, 876 F.2d 960

(D.C. Cir. 1989) ...................................................................................................... 3 Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development

Comm'n, 461 U. S. 190 (1983) ............................................................................ 22 People v. Boultinghouse 134 Cal.App.4th 619 (2005) ............................................ 22 Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947) ........................................... 21 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................... 26 Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752-53 (9th

Cir.1982) .............................................................................................................1, 2 United States v. American Trucking Ass’ns, 310 U.S. 534, 543-44 (1940) ............. 4 United States v. Great Northern Ry., 287 U.S. 144 (1932) ....................................... 3 United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 .................... 26, 27

 

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Viva! Int. Voice for Animals v. Adidas Promotional Retail Operations, Inc. 41 Cal.4th 929 (2007) ......................................................................................... 22, 23

Whalen v. Roe, 429 U. S. 589 (1977) ...................................................................... 19 Winter v. Natural Resource Defense Council, Inc., 129 S.Ct. 365 (2008) ................ 1

STATUTES

2008 ADA Amendments Act. Pub. L. 110-325 (2008) ............................................ 8 2010 Omnibus Appropriations Act, Pub.L. 111-117 (111th Congress, First Session)

(2009) .................................................................................................................... 14 42 U.S.C. § 12101(a)(1) ............................................................................................. 9 42 U.S.C. § 12101(a)(3) ............................................................................................. 9 42 U.S.C. § 12101(a)(4) ............................................................................................. 9 42 U.S.C. § 12101(a)(7) ............................................................................................. 9 42 U.S.C. § 12102(4)(A) ..................................................................................... 9, 10 D.C. Code Ann. § 1-204.46 .............................................................................. 15, 16 D.C. Code Ann. § 1-206.01 ..................................................................................... 14 D.C. Stat. 13-138 (effective July 29, 2010) ............................................................. 13 Rehabilitation Act of 1973, Section 504, 29 U.S.C. §§ 701-797b .......................... 12 Washington D.C. Initiative 59, Legalization of Marijuana for Medical Treatment

Initiative of 1998 (1998, amended 2010) .............................................................. 13

OTHER AUTHORITIES

135 CR S10803 (Sept. 7, 1989) ................................................................................. 4 136 CR H2638-39 (daily ed. May 22, 1990) ............................................................. 5 136 CR H4629-30 (daily ed. July 12, 1990) .............................................................. 5 Amendment [Proposed] to S.933 (1989) H.R. 2273 / S.933 101st Congress (1989

Second Session) ...................................................................................................... 4 American Civil Liberties Union, Democracy Held Hostage, December 31, 2000 15,

16 Chai R. Feldblum, Medical Examinations and Inquiries Under the Americans with

Disabilities Act: A View from the Inside, 64 Temp. L. Rev. 521, 529–530 (1991) .............................................................................................................................4, 8

Congressman Steny Hoyer, Op-Ed., Not Exactly What We Intended Justice O’Connor, Washington Post, Jan. 20, 2002, Section “B”, Page 1 ......................... 8

 

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David Stout and Solomon Moore, U.S. Won’t Prosecute in States That Allow Medical Marijuana, New York Times (10/19/2009) ............................................ 28

Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008) ............................................................................ 7

H. Rpt. 101-485(II) at 79; 1990 U.S.C.C.A.N. 303, 361 (101st Congress, ........ 5, 12 H.R. 3064 (106th Congress, First Session) (1999) ................................................... 15 H.Rpt. 111-202 (111th Congress, First Session) (2009) ........................................... 14 Senate Hearing, 101st Congress, First Session, 135 CR S10775, (9/7/1989) .......... 12 The ADA Amendments Act of 2008, Chai R. Feldblum, Kevin Barry and Emily A.

Benfer (2008) ......................................................................................................4, 8 U.S. Won’t Prosecute in States That Allow Medical Marijuana, The New York

Times, David Stout and Solomon Moore, reporters (October 19, 2009) .............. 28

CONSTITUTIONAL PROVISIONS

First Amendment, United States Constitution ......................................................... 15 U.S. Constitution, Article 1 ...................................................................................... 13 U.S. Constitution, Article 1, Section 7, Clause 1 .................................................... 13 U.S. Constitution, Article 1, Section 8, Clause 17 .................................................. 13 U.S. Constitution, Article 6, Clause 2 ...................................................................... 21

 

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TABLE OF ABBREVIATIONS  

 

References to the Appendices

E.R. ………………………………………..

Excerpts of the Record

S.Ref. ……………………………………….. Statutory References

in Appellants’ Opening Brief

References to Legislation

ADA ………………………………………..

Americans with Disabilities

Act of 1990 (42 U.S.C. § 12201, et seq.)

CSA ……………………………………….. Controlled Substances Act (21 U.S.C. § 801, et seq.)

LFOB ……………………………………….. City of Lake Forest

Opposition Brief

CMOB ……………………………………….. City of Costa Mesa

Opposition Brief

AOB ……………………………………….. Appellants’ Opening Brief

 

 

 

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DISCUSSION

I. ZONING AND ACCOMODATION ISSUES ARE OUTSIDE THE SCOPE OF THIS PRELIMINARY INJUNCTION APPEAL  

Ordinarily, a preliminary injunction review comes in the early stages of

litigation, when the record is insufficiently complete to allow a reliable resolution

on the merits. Normally, the Court reviews the propriety of the injunction, not the

ultimate merits of the case. Sports Form, Inc. v. United Press International, Inc.,

686 F.2d 750, 752-53 (9th Cir.1982); Miss Universe, Inc. v. Flesher, 605 F.2d

1130 (9th Cir. 1979) at 1132-33.

Here, in its order denying the preliminary injunction, the District Court

analyzed the 42 U.S.C. § 12210(d) exceptions. The District Court limited its

decision to interpretation of 12210(d)(1) illegal use of drugs exceptions finding,

“[b]ecause marijuana cannot be prescribed under the ADA, the Court finds no

likelihood of success on the merits. With this finding, the Court need not reach the

other elements listed in Winter, 129 S. Ct. at 374 (2008). The Court DENIES the

Motion for preliminary injunction.” E.R. 1 at 6.

The District Court’s decision was limited to the Winter “probable success on

the merits” element as that element relates to the illegal use of drugs exceptions

included in 12210(d) and arguments that Congress’ recent action provided an

additional basis for appellants’ ADA qualification. The disabled appellants filed

 

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their complaint in District Court on April 2, 2010. Central District CA No. SACV

10-00402ALG(MLGx); James v. City of Costa Mesa, 2010 U.S. Dist. LEXIS

53009 (C.D. Cal. 2010). The record in this case is limited. Accordingly, the

issues here should be limited to the legal determinations made by the District Court

rather than issues the District Court did not consider. Sports Form, supra.

Pages 26 through 32 of Costa Mesa’s opposition brief discuss issues of

zoning and accommodation. Pages 10 through part of page 12 of the opposition

brief submitted by appellee City of Lake Forest relate to Lake Forest’s zoning

powers. Issues of zoning and accommodation were not considered by the District

Court and should not be issues in this appeal.

II. CONTRARY TO THE CITIES’ ASSERTIONS, CONGRESS INTENDED THE 12210(d) EXCEPTIONS TO INCLUDE RATHER THAN EXCLUDE THE DISABLED APPELLANTS In its opposition brief, Lake Forest states, "[w]ithout citation to authority,

Appellants speculate that 'the ADA's 'illegal use of drugs' prohibition was not

meant for [them]." LFOB at 24.

Before analyzing legislative history, the disabled appellants first provided

authority supporting their position that the plain language of 42 U.S.C. § 12210

provides them several exceptions to that statute’s illegal use of drugs prohibition.

“If the intention of the legislature is so apparent from the face of the statute that

there can be no question as to its meaning, then there is no need for the court to

 

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apply canons of construction.” Overseas Education Ass'n v. Federal Labor

Relations Authority, 876 F.2d 960 (D.C. Cir. 1989);  Connecticut Nat'l Bank v.

Germain, 112 S. Ct. 1146 (1992) at 1149. Since the District Court’s order referred

to its interpretation of the statute (E.R. 1 at 5-6), an analysis of 12210’s plain

language was included in appellants’ opening brief. Because the District Court’s

analysis of the comma and the word “other” in 12210(d)(1) was at odds with

general rules of grammar, the statute appeared to have several possible meanings

thus appellants examined its legislative history. Crowder v. First Federal Savings

& Loan Ass'n of Dallas, 567 S.W.2d 550, Tex. App. 1978). The court had to imply

a CSA authorization requirement into 12210(d)(1) making appellants’ analysis of

legislative intent and statutory construction appropriate. E.R. 1 at 5-6; LFOB at 22

(assuming CSA reference “even where this is not stated.”); Crowder v. First

Federal, supra. When something must be implied into a statute, it is appropriate to

analyze canons of construction as well as the statute’s legislative history1.

Overseas Education Ass'n, supra; Crowder v. First Federal, supra; and United

States v. Great Northern Ry., 287 U.S. 144 (1932). Also, “[w]hen aid to the

construction of the meaning of words, as used in the statute, is available, there

certainly can be no ‘rule of law’ which forbids its use, however clear the words

                                                            1 United States v. Great Northern Ry., 287 U.S. 144 (1932).

 

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may appear on ‘superficial examination.’” United States v. American Trucking

Ass’ns, 310 U.S. 534, 543-44 (1940).

A. The rejected Senate illegal use of drugs prohibition would have disqualified the disabled appellants from ADA protection.  

Included in the disabled appellants’ opening brief is a reference to the

original illegal drug use prohibition amendment proposed in the Senate at the time

Congress debated the ADA2. Although later rejected, Senate Amendment 715 to

S.933 provided:

“[T]he term `illegal drugs' does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by the Controlled Substances Act or other provisions of federal law.” Amendment to S.933 (1989) H.R. 2273 / S.933 101st Congress (1989) 135 CR S10775-S10777 (emphasis added); S.Ref Q; AOB at 26.

The Senate accepted this amendment before the bill was sent to the House of

Representatives, 135 CR at S10803 (9/7/1989), where it was later rejected3. After

concerns were raised that the Senate exceptions were too strict, the House took up

the issue and then provided the more reasonable and inclusive version of

12210(d)(1) noting:

“The term ‘illegal drugs’ … does not include drugs taken under supervision by a licensed health care professional … Many people with disabilities, such

                                                            2 S. 933 passed 76-8. 135 CR S10803 (9/7/1989); The ADA Amendments Act of 2008, Chai R. Feldblum, Kevin Barry and Emily A. Benfer (2008). 3 Numerous modifications were made to the Senate version. Chai R. Feldblum, Medical Examinations and Inquiries Under the Americans with Disabilities Act: A View from the Inside, 64 Temp. L. Rev. 521, 529–530 (1991).

 

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as people with epilepsy, AIDS, and mental illness, take a variety of drugs … under supervision by a health care professional. Discrimination on the basis of use of such drugs would not be allowed.” H. Rpt. 101-485(II) at 79; 1990 U.S.C.C.A.N. 303, 361 (101st Congress, First Session, 1989).

As noted above, the resulting statute4, 42 U.S.C. § 12210(d), differed from the

Senate version by including the “use of a drug taken under supervision by a

licensed health care provider” exception. Additionally, the enacted version

inserted a comma before the conjunction “or.” The Oxford Dictionary provides

that a writer should use a comma followed by a conjunction (and, but, for, nor, yet,

or, so) to separate two independent clauses. It makes sense that Congress inserted

this comma to separate the independent first exception from the other exceptions

when it replaced the rejected Senate version with the enacted version of 12210(d).

B. The cities’ interpretation of 12210 requires substantial inference and speculation.  

According to the cities, only drug use authorized by the CSA allows a person

to remain qualified under the ADA. Costa Mesa states, “[a] plain reading of

Section 12210 reveals that the ADA is not intended to protect the illegal use of

drugs, which includes all uses not permitted by the CSA.” CMOB at 13. Lake

Forest states, “[t]he District Court properly interpreted the ADA's limited

exception, 42 U.S.C. s. 12210(d)(1), correctly in requiring that the first exception

                                                            4 Final conference report passed in House 377-28 and in Senate 91-6; 136 CR H4629-30 (7/12/1990); Id. at S9695 (7/13/1990); 136 CR H2638-39 (5/12/1990); H.Rpt. 101-485(II) at 79.

 

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for drug use under the supervision of a licensed health care professional be read in

conjunction with the second exception for “other uses authorized by the CSA.”

LFOB at 9. Lake Forest notes that there are three 12210(d) exceptions that it

assumes reference the CSA “even where this [reference] is not stated.” LFOB at

22 (emphasis added).

The Senate version of 12210(d)(1) read, “[t]he term ‘illegal drugs’ does not

mean the use of a controlled substance pursuant to a valid prescription or

other uses authorized by the CSA …” Since the rejected Senate version

provides explicitly for all methods of authorization under the CSA, it means

exactly what Costa Mesa and Lake Forest want 12210(d) to mean. However,

Congress did not accept the Senate version. H. Rpt. 101-485(II) at 79; 1990

U.S.C.C.A.N. 303, 361; 42 U.S.C. § 12210(d) (as enacted).

C. The 42 U.S.C. § 12210(a) prohibition is an ADA qualification provision that is separate and distinct from the CSA.  

Here, the cities have not inferred but rather have speculated that CSA

medical studies and research studies are what 12210(d) means when it refers to

“use of a drug taken under supervision by a licensed health care professional.”

“The CSA permits the use of marijuana under limited circumstances in research studies. These studies would undoubtedly involve the “supervision of health care professionals.” 21 U.S.C. § 823 (f). Congress could very well have been specifically referencing this type of study when including the phrase “under the supervision by a licensed health care professional” in Section 12210. 42 U.S.C. § 12210 (d)(1).” CMOB at 22 (emphasis added).

 

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However, the rejected Senate amendment 715 version of the exceptions provided

for all possible CSA exceptions. It covered the 21 U.S.C. § 823(f) research

studies referenced by Costa Mesa because it covered all allowed CSA uses of a

drug. Likewise, similar language found in the enacted version of 12210(d) covers

the 21 U.S.C. § 823(f) medical and research provisions. One of the flaws in Costa

Mesa’s interpretation is that there has to be a great deal of “inferring” to equate the

independent “use of a drug taken under supervision by a licensed health care

professional” exception with “CSA authorized medical and research studies.”

Since those medical and research studies are already provided for in the CSA,

those things are already “other uses authorized by the CSA” and it is duplicative to

restate them using terms that do not even appear in the CSA5. Referring to those

exceptions twice and then obfuscating their meaning instead of saying, “does not

mean use of a drug in CSA authorized medical studies and research studies or

other uses authorized by the CSA” seems far fetched to say the least6. Lake Forest

argues, “the District Court’s interpretation of 12210(d)(1) is at least as plausible”

as the interpretation submitted by appellants. LFOB at 23. However, the only

                                                            5 “Use of a drug taken under supervision of a licensed health care professional” appears nowhere in the CSA. 6 Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989); Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008), p. 148.

 

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plausible and reasonable interpretation is the disabled appellants’ interpretation

that gives meaning to the first exception.

D. By omitting and replacing the Senate version of the ADA’s 12210 illegal drug use provisions, it is understood that Congress did not intend the CSA authorization requirement inferred by the District Court and by the cities.  

The fact that Congress considered the proposed Senate version and rejected7

that version in favor of the current version of 12210(d)(1) shows expressio unius

est exclusio alterius8 that the first exception does not require CSA authorization.

Because Congress could have implemented the rejected Senate version, it is

understood it did not intend CSA authorization be “inferred” in the first exception

in the enacted 12210(d)(1).

E. The ADA Amendments Act of 2008 was passed to reinstate the broad applicability of the ADA.  

In the 2008 ADA Amendments Act, Pub. L. 110-325 (2008), Congress

clarified its intent that the ADA have wide applicability9 providing:

“Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals

                                                            7 After S.933 was passed by the Senate, it went to the House where staff members from Rep. Steny Hoyer’s office reviewed the bill. Numerous modifications were made. In May 1990, the House passed H.R. 2273 by a vote of 403-20. Chai R. Feldblum, Medical Examinations and Inquiries, supra, 529–530 (1991); The ADA Amendments Act of 2008, Chai R. Feldblum, Kevin Barry and Emily A. Benfer (2008). 8 Roughly meaning whatever is omitted is understood to be excluded 9 Congressman Steny Hoyer, Op-Ed., Not Exactly What We Intended Justice O’Connor, Washington Post, Jan. 20, 2002, Section “B”, Page 1.

 

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with disabilities” and provide broad coverage;” 42 U.S.C. § 12101(a)(1) (2008); Pub.L. 110-325 (emphasis added).

Congress found that the courts had inconsistently applied the definition of a

handicapped individual noting, “that [Congress’] expectation has not been

fulfilled.” 42 U.S.C. § 12101(a)(3) (2008); Pub.L. 110-325 (emphasis added). It

then identified specific cases:

“[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;” 42 U.S.C. § 12101(a)(3) (2008); Pub.L. 110-325 (emphasis added).

Other case holdings were discussed in 42 U.S.C. § 12101(a)(4) through 42 U.S.C.

§ 12101(a)(7). Following these declarations, Congress rejected the holdings noting

it had adopted the Amendments Act to restate, “a broad scope of protection to be

available under the ADA;” 42 U.S.C. § 12101(b)(1) (2008); Pub.L. 110-325

(emphasis added).

To clarify its intent, Congress provided:

“[T]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. § 12102(4)(A) (2008) (emphasis added).

Section 12102(4)(A) makes it clear that a determination of a person’s

eligibility as “disabled” for purposes of the ADA “shall be construed in favor of

broad coverage.” Ibid. Congress provided this construction should be applied, “to

 

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the maximum extent permitted by the terms of chapter.” Ibid. It follows that

analysis of 12210(d) requires an interpretation by courts that seeks to include

rather than exclude the disabled appellants.

F. The CSA does not trump other federal laws.  

21 U.S.C. § 903 of the CSA provides, "[n]o provision of this subchapter

shall be construed as indicating an intent on the part of the Congress to occupy the

field in which that provision operates, including criminal penalties, to the exclusion

of any State law on the same subject matter." In Gonzales v. Oregon 546 U.S. 243

(2005) , Justice Scalia referred to section 903 as a “non preemption clause." Id. at

289 (dis. opn. of Scalia, J.).

CSA Section 903 shows Congress did not intend the CSA to be the

sacrosanct law the cities contend it is. The ADA is comprehensive federal

legislation that does not contain the same limiting preemption language and that

contains its own, independent illegal drug use provisions. The CSA should not be

considered “above” the ADA.

G. ADA’s section 12210 addresses eligibility and has a different purpose than the CSA.  

The disabled appellants are not arguing that the ADA implicitly repeals the

CSA as the cities contend. CMOB at 34. The ADA’s illegal drug use prohibition

addresses ADA eligibility and defines conduct that is considered illegal use of

 

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drugs under the ADA. 42 U.S.C. § 12210(a). The ADA provision does not except

liability under the CSA. Nor does the ADA provision purport to limit or impose

criminal sanctions for drug use. The CSA has a completely different purpose10.

While use of drugs may violate the CSA, the same use of drugs does not

automatically disqualify a person from ADA protection. Under the original

Rehabilitation Act of 1973, illegal drug use and addiction were being used by

people as their “handicap” to obtain benefits. The enacted version of 12210(d)

tackles the “mischief” debated by Congress while balancing the realities faced by

truly disabled people.

H. The ‘mischief’ Congress sought to remedy in 12210 is not the ‘mischief’ alleged by the cities in this case.  

"[T]he office of all judges is always to make such construction as shall

suppress the mischief, advance the remedy, and to suppress subtle invention and

evasions for continuance of the mischief … according to the true intent of the

makers of the act" Heydon's Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (King's Bench

1584). When interpreting a statute, courts consider the history and nature of the

subject matter of the statute; the end to be attained by the law; the "mischief," or

wrong, sought to be remedied; and the purpose to be accomplished by the law

Crowder v. First Federal , supra (emphasis added).

                                                            10 21 U. S. C. §§841(a)(1), 844(a).

 

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In their opening brief, the disabled appellants provided authority showing

that Congress was concerned about people using drug addiction as their handicap

to claim benefits under the Rehabilitation Act of 197311. AOB at 26.

During the Senate hearings on the ADA, Senator Helms introduced his

proposed Amendment 715. In describing the effect of 715, Helms stated that,

“[a]busers of illegal drugs do not qualify as handicapped for the purposes of

Federal programs.” Senate Hearing, 101st Congress, First Session, 135 CR S10775,

(9/7/1989). The legislative record shows the "mischief" Congress sought to

remedy was preventing “those who abuse drugs” from using drug abuse as their

handicap to improperly obtain federal benefits. Ibid.

The appellants in this case are not drug abusers trying to obtain ADA

benefits12. Rather, they suffer from handicaps that are not drug abuse. The

appellants treat their conditions with “substances such as marijuana or morphine

under the supervision of medical professionals as part of a course of treatment.13”

“[D]iscrimination on the basis of use of such drugs [should] not be allowed.” 1990

U.S.C.C.A.N. 303, 361.

                                                            11 Rehabilitation Act of 1973, Section 504, 29 U.S.C. §§ 701-797b 12 Cities objected to evidence showing appellants’ condition and treatment. The objections were overruled. ER 1 at 3-5. 13 During hearings, the administration noted disabled people using marijuana or morphine under the supervision of medical professionals as part of a course of treatment or study should remain qualified. AOB at 26.

 

13 

III. CONGRESS ACTED PURSUANT TO ITS ARTICLE 1 POWERS WHEN IT ALLOWED THE FEDERAL DISTRICT OF COLUMBIA TO IMPLEMENT INITIATIVE 59  

In its opposition brief, Costa Mesa states, “[appellants] acknowledge that the

ban on implementation of Initiative 5914 was included in an appropriations bill.”

CMOB at 34. Costa Mesa then asserts appellants have argued that Congress’

recent Washington D.C. actions provide for the “wholesale repeal of the CSA15.”

Ibid. Lake Forest argues that the actions of Congress in respect to Washington

D.C. are not federal law. LFOB at 26.

Congress is vested with full legislative authority in the federal District of

Columbia. Art. 1, S. 8, Cl. 17. Legislative action taken by Congress that results in

a bill’s enactment is federal law. Art. 1. The Constitution requires appropriations

bills originate in the House of Representatives but does not say appropriation laws

carry less weight than other federal laws. Art. 1, S. 7, Cl. 1.

A. Congress’ actions in Public Law 111-117 allowed the District’s local government to consider and implement Initiative 59  

Congress’ reported its Public Law 111-117 “allows” the District to

implement medical marijuana regulations. H.Rept. 111-202 (2009). Costa Mesa’s

                                                            14 Washington D.C. Initiative 59, Legalization of Marijuana for Medical Treatment Initiative of 1998 (1998, amended 2010); D.C. Stat. 13-138 (effective 7/29/2010). 15 “Members would have this Court conclude … that Congress intended a wholesale repeal of the CSA by its modification of this appropriations bill.” CMOB at 34.

 

14 

suggestion that Congress was only getting “out of the way” of the District’s local

affairs does not alter Congress’ constitutional responsibility. Art. 1, S. 8, Cl. 17;

Marijuana Policy Project v. U.S., 304 F. 3d 82 (D.C. Circuit, 2002) at 84-90.

Despite Costa Mesa’s implication, Congress did not abrogate its

constitutional duties in the Home Rule Act. Jackson v. District of Columbia Bd. of

Elections and Ethics, No. 10-CV-20 (D.C. Court of Appeals, 7/15/2010) at 8;

Marijuana Policy Project, supra. at 83-88. To be sure, Congress included Title IV,

Section 601, “RETENTION OF CONSTITUTIONAL AUTHORITY”, in the Home

Rule Act. D.C. Council enactments become law only if Congress declines to pass a

joint resolution of disapproval within thirty days. D.C. Code Ann. § 1-

206.02(c)(1); Moreover, Congress expressly reserves the right to enact legislation

concerning the District on any subject and to repeal D.C. Council enactments at

any time. D.C. Code Ann. § 1-206.01; Marijuana Policy Project at 84.

The 2010 Omnibus Appropriations Act, Pub.L. 111-117 (111th Congress,

First Session) (2009), is federal law that “allows the District to conduct and

implement a referendum on use of marijuana for medical purposes, as has been

done in various states.” H.Rpt. 111-202 (111th Congress, First Session) (2009)

(emphasis added). It is clear Congress understood its power and responsibility

when it used the word “allows.” Regardless of Congress’ reference to its actions

being “further steps towards reducing undue congressional interference” (H.Rept.

 

15 

111-202), it allowed the implementation of the D.C. medical marijuana law (D.C.

Stat. 13-138).

B. Despite cities’ suggestion, the “Barr Amendment” was more than a Home Rule Act appropriations restriction.  

Cities characterize Congress’ ban on the District’s medical marijuana

initiative as a prohibition on the District’s ability to appropriate funds imposed by

Congress16 under provisions of the Home Rule Act. D.C. Code Ann. § 1-204.46.

In 1998, when Initiative 59 was on the ballot in D.C., Congress was

considering its 1999 appropriations legislation17. In response to Initiative 59,

Congress adopted the “Barr Amendment” prohibiting funds for Initiative 59. Suit

was brought seeking to invalidate the prohibition. Marijuana Policy Project v.

U.S., 304 F. 3d 82 (D.C. Circuit, 2002). After the trial court ruled in favor of the

plaintiffs in that case, in 2000 Congress added, “[T]he Legalization of Marijuana

for Medical Treatment Initiative of 1998, also known as Initiative 59, approved by

the electors of the District of Columbia on November 3, 1998, shall not take

effect.” H.R. 3064 (106th Congress, First Session) (1999) at Section 167(b) to the

Barr Amendment. Until 2009, while the Barr Amendment was effective, the D.C.

                                                            16 Costa Mesa suggests the Barr Amendment is a simple appropriations prohibition that provided the “District of Columbia could use no federal funds for its implementation.” CMOB at 34. 17 ACLU, Democracy Held Hostage, December 31, 2000, <http://www.aclu.org/drug-law-reform/democracy-held-hostage>.

 

16 

Board of Elections would not certify medical marijuana initiatives. Marijuana

Policy Project v. U.S., supra, at 82-86.

Section 167(b) of the “Barr Amendment” was not a D.C. Code Ann. § 1-

204.46 appropriations prohibition. Rather, 167(b) overturned18 the decision of

Washington D.C. voters through Congress’ Art. 1, S. 8, Cl. 17 authority. See

ACLU, Democracy Held Hostage, supra.

As it had done when it imposed the 167(b) ban, Congress acted using its Art.

1, S. 8, Cl. 17 powers when it removed the Barr Amendment in Decmeber, 2009.

Thereafter, Congress approved D.C. Stat. 13-138 through the Home Rule Act. It

did this despite a proposed joint resolution to defeat the measure (H.J.Res. 93,

supra). Congress did not simply remove a Home Rule Act appropriations

restriction.

C. Congress acted deliberately when it allowed the District of Columbia to implement Initiative 59 and legalize medical marijuana  

The House report, H.Rpt. 111-202, supra, included Minority Viewpoints

noting strong opposition to the change allowing medical marijuana in the District

of Columbia. Minority committee members Jerry Lewis and Jo Ann Emerson

reported that they did not believe medical marijuana would improve the District.

There was discussion and debate regarding medical marijuana and, despite

minority opposition, the bill was enacted.                                                             18 ACLU, Democracy Held Hostage, supra.

 

17 

Costa Mesa refers to opinions of Rep. Elanor Holmes Norton regarding

Congress’ interference with the District’s local budget. CMOB at 35-37. Rep.

Norton does not refer to the Barr Amendment or medical marijuana in her remarks.

She does refer to issues that she believed should be left to local decision making.

Ibid. She urges Congress to treat D.C. more like a state. Ibid. However, Rep.

Norton is not a voting member of Congress. Although she is an excellent

supporter of the District, Congress’ power under Art. 1, S. 8, Cl. 7 of the

Constitution remains effective. Marijuana Policy Project v. U.S., 304 F. 3d 82

(D.C. Circuit, 2002) at 83-89. While her remarks indicate her position as the

District’s limited voice in the House of Representatives, they do not have the effect

Costa Mesa urges. Through Public Law 111-117 and then subsequent approval of

D.C. Stat. 13-138, Congress turned over control of medical marijuana to the

citizens of Washington D.C. and approved its legalization of medical marijuana.

The urgings of an effective yet non-voting single member of the House do not

change this.

During the 30-day Home Rule Act approval period for 13-138, Rep. Jason

Chaffetz proposed House Joint Resolution 93 seeking to invalidate the District’s

medical marijuana law. H.J.Res. 93 (111TH Congress, First Session) (2010), Rep.

Jason Chaffetz, 3rd Dist., Utah). The resolution proposed by Rep. Chaffetz was not

accepted.

 

18 

IV. CITIES MISSTATE THE DISABLED APPELLANTS’ EQUAL PROTECTION ARGUMENTS Cities suggest that Congress has done nothing applicable outside of

Washington D.C. in respect to medical marijuana. CMOB at 38. However,

Congress used the word “allow” in its House report on 111-117. H.Rept 111-202,

supra. For over ten (10) years, Congress knew it was banning Initiative 59 and it

knew the scope, purpose and intent of Initiative 59. It recognized that states have

similar laws and said so in its House report. H.Rept.111-202, supra. It approved

D.C. Stat. 13-138 on July 29, 2010.

A. Congress has given what are “traditionally state powers” to the citizens of Washington D.C.  

Lake Forrest suggests that Congress is like a state legislature when it acts in

respect to Washington D.C. LFOB at 29. Costa Mesa suggests that Congress gave

Washington D.C. control over its local affairs in Public Law 111-117 and submits

Congress was providing:

‟home rule to the residents of the District of Columbia so that they would have some modicum of control over their local governance more in line with what regular states enjoy elsewhere in the United States.” CMOB at 35. (emphasis added).

The disabled appellants do not disagree with Costa Mesa that part of what

Congress did in that law turned control over issues to the District’s local

government. In fact, Congress specifically provides that it is giving the District

 

19 

local control to eliminate “undue congressional interference.” H.Rept 111-202,

supra. Missing from both cities discussions is the fact that Congress specifically

returned control over medical marijuana to the District’s local government.

Referring to giving the District state powers, Congress allowed the District to

control and implement its medical marijuana law. H.Rept. 111-202. It follows the

District did not have that authority before 111-117 was enacted.

The states' core police powers include authority to define criminal law and to

protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507

U. S. 619 (1993) at 635; Whalen v. Roe, 429 U. S. 589 (1977) at 603, note 30. The

medical marijuana area is one “traditionally” belonging to the states. Gonzales v.

Raich, 545 U.S. 1 (2005) at 34 (Scalia, J., concurring); also Id. at 39 (O’Connor, J.,

dissenting).

In Public Law 111-117, Congress’ has conveyed a “traditionally” state area

of regulation to the citizens and government of that city. Although Lake Forest

submits that Congress acts similar to a state legislature in regard to the federal

District, Congress remains the federal sovereign. As the disabled appellants have

shown, removal of the Barr Amendment was not just Home Rule Act legislation

but was an exercise of Congress’ Art. 1, S. 8, Cl. 17 powers.

The very limited “traditional” state area to legislate and regulate in respect to

medical marijuana that Congress has given to the citizens of Washington D.C.

 

20 

should also be areas the states themselves can regulate. After Congress allowed

the District to implement its medical marijuana initiative, it acted pursuant to its

Home Rule Act authority and approved the District statute legalizing medical

marijuana. Considering Congress’ preemption statement in section 903 favoring

state law in this area (the “non preemption” section19) of the CSA, when it acted

for the District, it intended this area of regulation be local in nature. Through equal

protection, Congress has eliminated conflict and obstacle state preemption in the

limited area of medical marijuana for voters in California as well.

B. Appellants do NOT assert that D.C. Stat 13-138, et seq., applies nationwide nor do they assert that law applies in Lake Forest or Costa Mesa.  

Despite cities’ assertions, appellants have not suggested that Washington

D.C.’s medical marijuana regulations apply in Lake Forest or Costa Mesa. Rather,

Congress has turned the traditionally state power in the limited area of medical

marijuana over to the citizens and local government in Washington D.C. The

disabled appellants submit that the citizens of the various states and their

respective governments have likewise been granted the same local control in this

limited area. Congress has removed the “undue congressional interference” that

it referred to in H.Rept. 111-202.

                                                            19 Gonzales v. Oregon 546 U.S. at 289, infra, (J. Scalia, dissenting).

 

21 

C. D.C. Stat. 13-138 legalizes medical marijuana Despite the cities’ contention that Washington D.C. has simply

“decriminalized” the use and possession of medical marijuana, Washington D.C.

has actually provided for medical marijuana dispensaries to distribute medical

marijuana. Washington D.C. has provided a set of clear regulations providing for

use, possession, transportation and distribution of medical marijuana. The

appellants cannot find where the cities aver Congress has taken this action

knowing that the CSA will be enforced against seriously ill and handicapped

individuals.

D. Congress’ action in Washington D.C. necessarily vitiates conflict and obstacle preemption in the limited area of medical marijuana Principles of preemption have been articulated by numerous courts. Article 6

of the Constitution provides that the laws of the United States "shall be the

supreme Law of the Land;. .. any Thing in the Constitution or Laws of any state to

the Contrary notwithstanding." U.S. Constitution, Article 6, Clause 2.

Consideration of issues arising under the Supremacy Clause "start[s] with the

assumption that the historic police powers of the States [are] not to be superseded

by . . . Federal Act unless that [is] the clear and manifest purpose of Congress."

Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947) at 230. Accordingly, "[t]he

 

22 

purpose of Congress is the ultimate touchstone" of pre-emption analysis. Malone v.

White Motor Corp., 435 U. S. 497 (1978) at 504.

There are four types of federal preemption: express, conflict, obstacle, and

field. Viva! Int. Voice for Animals v. Adidas Promotional Retail Operations, Inc.

41 Cal.4th 929 (2007) at 935-936. Congress' intent may be “explicitly stated in the

statute's language or implicitly contained in its structure and purpose.” Jones v.

Rath Packing Co., 430 U. S. 519 (1977) at 525. In the absence of an express

congressional command, state law is pre-empted if that law actually conflicts with

federal law, Pacific Gas & Elec. Co. v. State Energy Resources Conservation and

Development Comm'n, 461 U. S. 190 (1983) at 204, or if federal law so

thoroughly occupies a legislative field “as to make reasonable the inference that

Congress left no room for the States to supplement it.” Fidelity Fed. Sav. & Loan

Assn. v. De la Cuesta, 458 U. S. 141 (1982) at 153.

Numerous courts have concluded that Congress’ statement in the CSA that

“[n]o provision of this subchapter shall be construed as indicating an intent on the

part of the Congress to occupy the field in which that provision operates, including

criminal penalties, to the exclusion of any State law on the same subject matter”

(21 U.S.C. § 903) demonstrates Congress intended to reject express and field

preemption of state laws concerning controlled substances. People v.

Boultinghouse 134 Cal.App.4th 619 (2005) at 623 (showing 21 U.S.C. § 903's

 

23 

“express statement by Congress that the federal drug law does not generally

preempt state law gives the usual assumption against preemption additional

force”); Gonzales v. Oregon 546 U.S. at 289, supra, (Scalia, J., dissenting)

(characterizing section 903 as a "non pre-emption clause"); City of Hartford

v.Tucker 621 A.2d 1339 (Conn. 1993) at 1341 (describing 21 U.S.C. § 903 and

"the anti-preemption provision of the [CSA]"). When Congress has expressly

described the scope of the state laws it intended to preempt, the courts “infer

Congress intended to preempt no more than that absent sound contrary evidence.”

Viva!, supra, at 945.

Comparing Supremacy clause preemption to Congress’ control over

Washington D.C., the appellate court in Marijuana Policy Project v. U.S., supra,

stated, “[i]f Congress can preempt state legislation without running afoul of the

First Amendment, then, in view of Congress's "exclusive" Article 1 authority over

the District of Columbia, it can certainly limit D.C. legislative authority without

violating D.C. voters' First Amendment rights.” Id. at 88. In referring to the Barr

Amendment, the Court also notes that, “the Constitution permits Congress … to

reserve for itself ‘exclusive’ authority to enact marijuana legislation.” Ibid.

 

24 

(emphasis added). The Court determined that Congress had properly done that in

the Barr Amendment20. Ibid.

In Marijuana Policy Project, the federal circuit court analogized Congress’

Supremacy clause state law preemption powers with its Article 1 powers over the

District of Columbia. It found non-appropriation parts of the Barr Amendment

were a proper exercise of Congress’ Article 1 powers. Id. (holding). Congress

gave back the “authority to enact marijuana legislation” to the District as well as

gave the District the right to “reduce marijuana penalties.” Pub.L. 111-117;

H.Rept. 111-202. Furthermore, considering leges posteriores priores contrarias

abrogant, the CSA predates Congress’ recent actions by almost 40 years and, as

Costa Mesa noted, Congress has turned control of medical marijuana issues over to

the District. It has also, through the Home Rule Act, allowed D.C. Stat. 13-138. It

follows that the states should be afforded the same legislative rights without undue

federal interference or CSA conflict or obstacle preemption in this limited area.

In Gonzales v. Oregon, supra, Justice Scalia described section 903 of the

CSA as a “non pre-emption clause.” The Connecticut court in City of Hartford

v.Tucker, supra, referred to 903 as an “anti-preemption” provision. The California

appellate court in Boultinghouse, supra, referring to 903, stated that the “express

statement by Congress that the federal drug law does not generally preempt

                                                            20 Ibid. The Barr Amendment is not just an appropriations limitation as the appellees suggest.

 

25 

state law gives the usual assumption against preemption additional force.”

(emphasis added). Given the “anti-preemption” nature of CSA section 903 in

favor of state law, even if Congress’ recent actions in respect to Washington D.C.

are considered “insignificant” as the cities urge, Congress approved 13-138

through the Home Rule Act. That District law included reductions and

exemptions21 for medical marijuana possession, use, and distribution22. Congress

could not have intended the CSA to contravene the District’s 13-138 provisions.

Rather, Congress has turned over the traditionally state area of medical marijuana

to the District. It follows that state laws in this same limited area should not be

subject to conflict or obstacle preemption.

E. The October 2009 Justice Department policy memorandum supports appellants’ preemption analysis. The Justice Department’s 10/19/2009 memorandum predating 111-117’s

enactment indicates agency regulations that show deference to state law in the area

of medical marijuana. AOB at 39-40; David G. Ogdens, Deputy Attorney General,

Memorandum, (10/19/2010). The policy memorandum came after the House had

approved removal of the Barr Amendment from H.R. 2273 but before enactment of

111-117 and D.C. Stat. 13-138. Not a formal regulation but rather an agency

policy document, when considered using a Skidmore v. Swift & Co., 323 U.S. 134                                                             21 D.C. Act 13-1386(b). 22 D.C. Act 13-138 is the District’s local controlled substances regulation not the federal CSA.

 

26 

(1944) analysis, the substantive directive in the memorandum is the most recent

indicator of agency position that federal law should defer to state medical

marijuana laws.

IV. CASE AUTHORITIES CITED BY THE CITIES ARE NOT APPLICABLE IN THIS CASE  

  The cases cited by cities predate Congress’ action in Washington D.C.

Many of the cases relate to Title I rather than Title II of the ADA. Some have

nothing to do with the ADA. Most involve either the Commerce Clause23 or state

law preemption24 issues. With the exception of Barber v. Gonzales, No. CV-05-

0173-EFS, 2005 WL 1607189 at 4 (E.D. Wash. July 1, 2005), none of the cases

directly address the issue of whether 12210(d) allows the appellants to remain

qualified under the ADA. Barber is an unpublished decision of a district court that

is not binding precedent. Using the same logic relied on by the District Court in

this case, the Barber court incorrectly interpreted 12210. It did not consider or

analyze 12210’s legislative history25.

Although cities cite Assenberg v. Anacortes Housing Auth., 268 Fed. Appx.

643 (9th Cir. 2008), that case did not include an analysis of ADA section 12210’s

                                                            23 U.S. Constitution, Article 1, Section 8, Clause 3. 24 United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001) at 491 (holding common law medical necessity cannot overcome the statutory provisions in the federal CSA); Gonzales v. Raich, supra (holding the CSA was a proper exercise of Congressional power under the Commerce Clause); AOB at 29-30 (Barber discussion).

 

27 

language or history. The court in Assenberg based its decision on state law

preemption. The plaintiff in Assenberg relied on Washington state’s medical

marijuana law in trying to overcome the ADA’s “illegal drug use” prohibition.

Assenberg is an unpublished decision that is not precedent. LFOB at 25.

The cities have also cited cases holding medical marijuana use is not a

“fundamental” right and that such use is not protected by the ADA. CMOB. First,

appellants could find no requirement that the use of any aide for the blind, drugs

for treatment, wheelchairs or walkers must be deemed a “fundamental” right for

the ADA to apply. Appellants do not contend medical marijuana is a fundamental

right. Additionally, the cases cited supporting the proposition that the ADA is not

applicable in medical marijuana cases all predate Congress’ action in Washington

D.C. Many of those cases are state cases and are cases that predate passage of the

ADA Amendments Act of 2008. In the cases that deem the ADA inapplicable, the

holdings have universally been based on illegality under the CSA or on state law.

The cities also cite Raich and United States v. Oakland Cannabis Buyers'

Coop., 532 U.S. 483 (2001) suggesting that medical marijuana has “no current

medical purpose.” LFOB at 18. In Oakland, referring to the medical necessity

defense, the Court stated, “[u]nder any conception of legal necessity, one principle

is clear: The defense cannot succeed when the legislature itself has made a

‘determination of values.’ 1 W. LaFave & A. Scott, Substantive Criminal Law §

 

28 

5.4, p. 629 (1986).” Oakland, supra, at 491. Oakland holds that common law

medical necessity cannot overcome the statutory provisions of the CSA. Oakland,

supra.

First, this ADA case has nothing to do with common law medical necessity.

Next, in 2001, when the Oakland decision was published, the “Barr Amendment”

prohibiting implementation of Initiative 59 was in full force26. Congress had not

taken any action to change its position as provided in the then 30 year old CSA.

Shortly after the Oakland decision, the appeals court in Marijuana Policy Project,

supra, determined the Barr Amendment was a proper exercise of Congressional

power under Article 1, Section 8, Clause 17 .

Many things have changed since the Oakland decision was handed down.

Among other things, at least fourteen (14) states and the District of Columbia have

enacted medical marijuana laws27. A national poll showed that 81% of Americans

support legalization of medical marijuana when recommended by a physician28.

Congress has allowed Washington D.C. to implement its Legalization of

Marijuana for Medical Purposes law and has conveyed to that city’s citizens local

control over medical marijuana. H.Rept. 111-202, (Pub.L. 111-117) (2009); D.C.

Stat. 13-138 (effective 7/29/2010).

                                                            26 H.R. 3064 (106th Congress, First Session) (1999), sections 167(a) and 167(b) 27 David Stout and Solomon Moore, U.S. Won’t Prosecute in States That Allow Medical Marijuana, New York Times (10/19/2009). 28 Gary Langer, High Support for Medical Marijuana, ABC News (1/18/2010)

 

29 

Congress has changed its “determination of values” in respect to marijuana

from that which it espoused almost 40 years ago in the CSA. Congress was

provided with the entire text of Initiative 59 and has been aware of its provisions

for over ten (10) years29. It prohibited medical marijuana in the District from 1998

to 2009 and then removed its Article 1 prohibition in 2009. H.Rept. 111-202.

Through D.C. Code Ann. § 1-206.02(c)(1), Congress approved the District’s

“Legalization of Marijuana for Medical Purposes.” (D.C. Stat. 13-139). Through

its actions, Congress has, at the very minimum, found marijuana to have medical

purpose and value. In light of these changes, Oakland is not applicable.

Raich, supra, is a commerce clause case. The Court in Raich held that

Congress could regulate purely intrastate activities through the CSA. The Court

did not address 42 U.S.C. § 12210 in Raich. Also, Raich predates Congress’ recent

actions in Washington D.C. In Raich, the Court suggests the “voices of the voters”

can perhaps be heard in the “halls of Congress.” Raich at 33. Congress has acted

for the voters in Washington D.C. The voting rights it has returned to Washington

D.C. in the limited area of medical marijuana should be returned to the citizens and

legislatures in the states as well.

                                                            29 13-138 submitted to Congress June 2010.

 

30 

CONCLUSION

 

The plain language and legislative history of the ADA show that the

disabled appellants in this case remain qualified for ADA protection. The disabled

appellants have provided authority showing Congress has turned over a

traditionally state power in the limited area of medical marijuana to the citizens

and local government of Washington D.C. Through equal protection and other

principles of fairness, it follows that Congress has eliminated conflict and obstacle

preemption for the states in this limited area. By approving the District’s 13-138

law, Congress has also recognized marijuana has medical value and purpose.

The trial court should be reversed and the case remanded.

___________________________________ Matthew Pappas Attorney for Appellants

 

31 

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)

The undersigned, counsel for plaintiffs-appellants, furnishes the following in

compliance with F.R.A.P. 32(a)(7).

I hereby certify that this brief complies with the provisions for a reply brief

produced using proportionally spaced fonts. The font size is 14. The brief has

6,965 words (count was retrieved from the word processor). This count does not

include the table of contents, table of abbreviations, title page, jurisdiction

statements, reference pages, certificates, and table of authorities.

____________________________ Matthew Pappas Attorney for Plaintiffs-Appellants

 

32 

CERTIFICATE OF SERVICE

I, Matthew Pappas, declare as follows:

I am over the age of 18. On August 3, 2010, I served a copy of the

Appellants’ Reply Brief in James v. Costa Mesa, et al., 9th Circuit Case No. 10-

55769, electronically using the Court’s ECF system to the CM/ECF recipients.

I served a copy of the Appellants’ Reply Brief by mail on the parties

identified in Attachment “A” who do not accept service through the ECF system.

Additionally, I mailed a courtesy copy of the Appellants’ Reply Brief in paper

format to each of the appellees (courtesy copy recipients are listed in Attachment

“A”).

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

EXECUTED this 3rd day of August, 2010:

____________________________ Matthew S. Pappas Attorney for Plaintiff-Appellants

 

33 

ATTACHMENT “A” (CERTIFICATE OF SERVICE)

Appellants’ Reply Brief (Through ECF): All parties that receive service through the ECF system in this case. Appellants’ Reply Brief (Paper Copy): Ms. Elena Quero Gerli Jones & Mayer 3777 N Harbor Blvd Fullerton, CA 92835 Courtesy Paper Copy: Mr. James Touchstone Jones & Mayer 3777 N Harbor Blvd Fullerton, CA 92835 Mr. Jeff Dunn Best, Best and Krieger 5 Park Plaza, Ste. 1500 Irvine, CA 92614

 

34 

CERTIFICATE OF MATCHING PAPER COPY

I, Matthew Pappas, counsel for appellants, declare as follows:

I prepared the appellants’ reply brief. The paper version of the brief served

by mail is the same as the electronic copy served using the Court’s ECF system.

EXECUTED this 3rd day of August, 2010:

____________________________ Matthew S. Pappas Attorney for Plaintiff-Appellants