A federal appeals court panel appeared skeptical today of the city of Oakland’s attempt to block the closure of a medical marijuana dispensary that describes itself as the nation’s largest.
Oakland is seeking the right to pursue a lawsuit that would challenge a U.S. Justice Department bid for civil forfeiture of the property occupied by the Harborside Health Center.
The city is asking the 9th U.S. Circuit Court of Appeals to overturn a lower court judge’s dismissal of its lawsuit and to allow its challenge to go to trial.
But a three-judge appeals panel, during a 45-minute hearing in San Francisco, seemed to favor the Justice Department’s argument that Oakland had no legal standing to challenge U.S. Attorney Melinda Haag’s decision to file a forfeiture lawsuit.
Circuit Judge Richard Tallman said the forfeiture action appeared to be within Haag’s discretionary authority and asked, “Isn’t that the end of the inquiry?”
The panel took the case under consideration after the hearing and has no deadline for issuing a decision.
Harborside says it is the nation’s largest dispensary, serving 150,000 registered medical marijuana patients in its large Oakland store at 1840 Embarcadero and in a smaller branch in San Jose.
The center has a permit from the city to operate in connection with the state’s voter-approved Compassionate Use Act, which allows seriously ill patients to use marijuana for medical purposes.
Federal laws criminalizing the drug make no exception for state medical marijuana laws, however.
At the time she filed the forfeiture lawsuit in July 2012, Haag called Harborside a “superstore” and said the action was part of an initiative to crack down on large-scale commercial operations that allegedly abuse the state law.
Oakland filed a separate federal lawsuit challenging the action three months later.
It claims the forfeiture lawsuit was filed too late because Harborside has operated since 2006 without federal or state interference.
It also contends shuttering Harborside would cost the city tax revenue and endanger public health and safety by preventing patients from obtaining marijuana or driving them to black market.
“We want you to preserve our regulatory scheme,” Cedric Chao, a lawyer representing Oakland, argued to the panel.
“The six years of operation gave the city a reasonable basis to believe our program would be allowed,” he said.
In 2013, U.S. Magistrate Judge Maria-Elena James dismissed Oakland’s lawsuit, but put the forfeiture case on hold while the city appeals, thus allowing Harborside to remain open for the time being.
An apparent recent shift in Congressional policy on enforcing marijuana laws drew comment from the appeals panel, but didn’t seem to help Oakland’s case.
In a federal budget appropriation law passed in December, Congress instructed the Justice Department not to use its funds to prevent 32 states with medical marijuana laws from implementing their laws.
Oakland argued in an appeal brief that the measure strengthened its argument that it was entitled to regulate the dispensary.
But the circuit judges seemed to agree with Justice Department attorney Adam Jed’s argument that the issue was irrelevant because it had not been raised at the trial court level.
“How is that properly before us?” Tallman asked.
Circuit Judge Johnnie Rawlinson commented, “I find it a little curious” that the Justice Department is pursuing the forfeiture lawsuit in light of the apparent policy shift.
Julia Cheever, Bay City News