UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No ** PRELIMINARY INJUNCTION APPEAL **

Transcription

1 Case: /03/2010 ID: DktEntry: 21-1 Page: 1 of 41 (1 of 42) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No ** PRELIMINARY INJUNCTION APPEAL ** MARLA JAMES, WAYNE WASHINGTON, JAMES ARMANTROUT, CHARLES DANIEL DeJONG, v. Plaintiffs-Appellants, 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 Matthew Pappas Law Office of Matthew Pappas Spadra Lane Mission Viejo, CA (949) On appeal from an order of the District Court denying Appellants request for a preliminary injunction, Central District of California Honorable Andrew Guilford No. SACV AG (MLGx) APPELLANTS REPLY BRIEF

2 Case: /03/2010 ID: DktEntry: 21-1 Page: 2 of 41 (2 of 42) 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 B. THE CITIES INTERPRETATION OF REQUIRES SUBSTANTIAL INFERENCE AND SPECULATION C. THE 42 U.S.C (A) PROHIBITION IS AN ADA QUALIFICATION PROVISION THAT IS SEPARATE AND DISTINCT FROM THE CSA D. BY OMITTING AND REPLACING THE SENATE VERSION OF THE ADA S 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 E. THE ADA AMENDMENTS ACT OF 2008 WAS PASSED TO REINSTATE THE BROAD APPLICABILITY OF THE ADA F. THE CSA DOES NOT TRUMP OTHER FEDERAL LAWS G. ADA S SECTION ADDRESSES ELIGIBILITY AND HAS A DIFFERENT PURPOSE THAN THE CSA H. THE MISCHIEF CONGRESS SOUGHT TO REMEDY IN IS NOT THE MISCHIEF ALLEGED BY THE CITIES IN THIS CASE III. CONGRESS ACTED PURSUANT TO ITS ARTICLE 1 POWERS WHEN IT ALLOWED THE FEDERAL DISTRICT OF COLUMBIA TO IMPLEMENT INITIATIVE A. CONGRESS ACTIONS IN PUBLIC LAW ALLOWED THE DISTRICT S LOCAL GOVERNMENT TO CONSIDER AND IMPLEMENT INITIATIVE B. DESPITE CITIES SUGGESTION, THE BARR AMENDMENT WAS MORE THAN A HOME RULE ACT APPROPRIATIONS RESTRICTION i

3 Case: /03/2010 ID: DktEntry: 21-1 Page: 3 of 41 (3 of 42) C. CONGRESS ACTED DELIBERATELY WHEN IT ALLOWED THE DISTRICT OF COLUMBIA TO IMPLEMENT INITIATIVE 59 AND LEGALIZE MEDICAL MARIJUANA IV. CITIES MISSTATE THE DISABLED APPELLANTS EQUAL PROTECTION ARGUMENTS A. CONGRESS HAS GIVEN WHAT ARE TRADITIONALLY STATE POWERS TO THE CITIZENS OF WASHINGTON D.C B. APPELLANTS DO NOT ASSERT THAT D.C. STAT , ET SEQ., APPLIES NATIONWIDE NOR DO THEY ASSERT THAT LAW APPLIES IN LAKE FOREST OR COSTA MESA C. D.C. STAT LEGALIZES MEDICAL MARIJUANA D. CONGRESS ACTION IN WASHINGTON D.C. NECESSARILY VITIATES CONFLICT AND OBSTACLE PREEMPTION IN THE LIMITED AREA OF MEDICAL MARIJUANA E. THE OCTOBER 2009 JUSTICE DEPARTMENT POLICY MEMORANDUM SUPPORTS APPELLANTS PREEMPTION ANALYSIS IV. CASE AUTHORITIES CITED BY THE CITIES ARE NOT APPLICABLE IN THIS CASE CONCLUSION CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7) CERTIFICATE OF SERVICE CERTIFICATE OF MATCHING PAPER COPY ii

4 Case: /03/2010 ID: DktEntry: 21-1 Page: 4 of 41 (4 of 42) TABLE OF AUTHORITIES CASES Assenberg v. Anacortes Housing Auth., 268 Fed. Appx. 643 (9th Cir. 2008) Brecht v. Abrahamson, 507 U. S. 619 (1993) Caminetti v. United States, 242 U.S. 470 (1917)... 3 City of Hartford v.tucker 621 A.2d 1339 (Conn. 1993) Connecticut Nat'l Bank v. Germain, 112 S. Ct (1992)... 3 Crowder v. First Federal Savings & Loan Ass'n of Dallas, 567 S.W.2d 550, Tex. App , 11 Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982) 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) Jackson v. District of Columbia Bd. of Elections and Ethics, No. 10-CV-20 (D.C. Court of Appeals, 7/15/2010) James v. City of Costa Mesa, 2010 U.S. Dist. LEXIS (C.D. Cal. 2010)... 2 Jones v. Rath Packing Co., 430 U. S. 519 (1977) 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) People v. Boultinghouse 134 Cal.App.4th 619 (2005) Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947) Skidmore v. Swift & Co., 323 U.S. 134 (1944) Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, (9th Cir.1982)...1, 2 United States v. American Trucking Ass ns, 310 U.S. 534, (1940)... 4 United States v. Great Northern Ry., 287 U.S. 144 (1932)... 3 United States v. Oakland Cannabis Buyers' Coop., 532 U.S , 27 iii

5 Case: /03/2010 ID: DktEntry: 21-1 Page: 5 of 41 (5 of 42) 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) Winter v. Natural Resource Defense Council, Inc., 129 S.Ct. 365 (2008)... 1 STATUTES 2008 ADA Amendments Act. Pub. L (2008) Omnibus Appropriations Act, Pub.L (111 th Congress, First Session) (2009) U.S.C (a)(1) U.S.C (a)(3) U.S.C (a)(4) U.S.C (a)(7) U.S.C (4)(A)... 9, 10 D.C. Code Ann , 16 D.C. Code Ann D.C. Stat (effective July 29, 2010) Rehabilitation Act of 1973, Section 504, 29 U.S.C b Washington D.C. Initiative 59, Legalization of Marijuana for Medical Treatment Initiative of 1998 (1998, amended 2010) OTHER AUTHORITIES 135 CR S10803 (Sept. 7, 1989) CR H (daily ed. May 22, 1990) CR H (daily ed. July 12, 1990)... 5 Amendment [Proposed] to S.933 (1989) H.R / S st Congress (1989 Second Session)... 4 American Civil Liberties Union, Democracy Held Hostage, December 31, , 16 Chai R. Feldblum, Medical Examinations and Inquiries Under the Americans with Disabilities Act: A View from the Inside, 64 Temp. L. Rev. 521, (1991)...4, 8 Congressman Steny Hoyer, Op-Ed., Not Exactly What We Intended Justice O Connor, Washington Post, Jan. 20, 2002, Section B, Page iv

6 Case: /03/2010 ID: DktEntry: 21-1 Page: 6 of 41 (6 of 42) David Stout and Solomon Moore, U.S. Won t Prosecute in States That Allow Medical Marijuana, New York Times (10/19/2009) Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008)... 7 H. Rpt (II) at 79; 1990 U.S.C.C.A.N. 303, 361 (101st Congress,... 5, 12 H.R (106 th Congress, First Session) (1999) H.Rpt (111 th Congress, First Session) (2009) Senate Hearing, 101 st Congress, First Session, 135 CR S10775, (9/7/1989) 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) CONSTITUTIONAL PROVISIONS First Amendment, United States Constitution U.S. Constitution, Article U.S. Constitution, Article 1, Section 7, Clause U.S. Constitution, Article 1, Section 8, Clause U.S. Constitution, Article 6, Clause v

7 Case: /03/2010 ID: DktEntry: 21-1 Page: 7 of 41 (7 of 42) TABLE OF ABBREVIATIONS References to the Appendices E.R. S.Ref..... Excerpts of the Record Statutory References in Appellants Opening Brief References to Legislation ADA CSA.... Americans with Disabilities Act of 1990 (42 U.S.C , et seq.) Controlled Substances Act (21 U.S.C. 801, et seq.) LFOB CMOB.... City of Lake Forest Opposition Brief City of Costa Mesa Opposition Brief AOB.. Appellants Opening Brief vi

8 Case: /03/2010 ID: DktEntry: 21-1 Page: 8 of 41 (8 of 42) 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, (9th Cir.1982); Miss Universe, Inc. v. Flesher, 605 F.2d 1130 (9th Cir. 1979) at Here, in its order denying the preliminary injunction, the District Court analyzed the 42 U.S.C (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 1

9 Case: /03/2010 ID: DktEntry: 21-1 Page: 9 of 41 (9 of 42) their complaint in District Court on April 2, Central District CA No. SACV ALG(MLGx); James v. City of Costa Mesa, 2010 U.S. Dist. LEXIS (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 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 2

10 Case: /03/2010 ID: DktEntry: 21-1 Page: 10 of 41 (10 of 42) 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 (1992) at Since the District Court s order referred to its interpretation of the statute (E.R. 1 at 5-6), an analysis of 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 history 1. 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). 3

11 Case: /03/2010 ID: DktEntry: 21-1 Page: 11 of 41 (11 of 42) may appear on superficial examination. United States v. American Trucking Ass ns, 310 U.S. 534, (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 ADA 2. 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 / S st 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 rejected 3. 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 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, (1991). 4

12 Case: /03/2010 ID: DktEntry: 21-1 Page: 12 of 41 (12 of 42) 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 (II) at 79; 1990 U.S.C.C.A.N. 303, 361 (101st Congress, First Session, 1989). As noted above, the resulting statute 4, 42 U.S.C (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 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 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 (d)(1), correctly in requiring that the first exception 4 Final conference report passed in House and in Senate 91-6; 136 CR H (7/12/1990); Id. at S9695 (7/13/1990); 136 CR H (5/12/1990); H.Rpt (II) at 79. 5

13 Case: /03/2010 ID: DktEntry: 21-1 Page: 13 of 41 (13 of 42) 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 (II) at 79; 1990 U.S.C.C.A.N. 303, 361; 42 U.S.C (d) (as enacted). C. The 42 U.S.C (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 U.S.C (d)(1). CMOB at 22 (emphasis added). 6

14 Case: /03/2010 ID: DktEntry: 21-1 Page: 14 of 41 (14 of 42) 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 CSA 5. 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 least 6. 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

15 Case: /03/2010 ID: DktEntry: 21-1 Page: 15 of 41 (15 of 42) 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 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 rejected 7 that version in favor of the current version of 12210(d)(1) shows expressio unius est exclusio alterius 8 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 (2008), Congress clarified its intent that the ADA have wide applicability 9 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 by a vote of Chai R. Feldblum, Medical Examinations and Inquiries, supra, (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. 8

16 Case: /03/2010 ID: DktEntry: 21-1 Page: 16 of 41 (16 of 42) with disabilities and provide broad coverage; 42 U.S.C (a)(1) (2008); Pub.L (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 (a)(3) (2008); Pub.L (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 (a)(3) (2008); Pub.L (emphasis added). Other case holdings were discussed in 42 U.S.C (a)(4) through 42 U.S.C (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 (b)(1) (2008); Pub.L (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 (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 9

17 Case: /03/2010 ID: DktEntry: 21-1 Page: 17 of 41 (17 of 42) 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 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 10

18 Case: /03/2010 ID: DktEntry: 21-1 Page: 18 of 41 (18 of 42) drugs under the ADA. 42 U.S.C (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 purpose 10. 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 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) U. S. C. 841(a)(1), 844(a). 11

19 Case: /03/2010 ID: DktEntry: 21-1 Page: 19 of 41 (19 of 42) 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 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, 101 st 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 benefits 12. 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 U.S.C.C.A.N. 303, Rehabilitation Act of 1973, Section 504, 29 U.S.C b 12 Cities objected to evidence showing appellants condition and treatment. The objections were overruled. ER 1 at 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

20 Case: /03/2010 ID: DktEntry: 21-1 Page: 20 of 41 (20 of 42) 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 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 CSA 15. 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 allowed the District s local government to consider and implement Initiative 59 Congress reported its Public Law allows the District to implement medical marijuana regulations. H.Rept (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 (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

21 Case: /03/2010 ID: DktEntry: 21-1 Page: 21 of 41 (21 of 42) 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 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 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 (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 ; Marijuana Policy Project at 84. The 2010 Omnibus Appropriations Act, Pub.L (111 th 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 th 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. 14

22 Case: /03/2010 ID: DktEntry: 21-1 Page: 22 of 41 (22 of 42) ), it allowed the implementation of the D.C. medical marijuana law (D.C. Stat ). 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 Congress 16 under provisions of the Home Rule Act. D.C. Code Ann In 1998, when Initiative 59 was on the ballot in D.C., Congress was considering its 1999 appropriations legislation 17. 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 (106 th 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 ACLU, Democracy Held Hostage, December 31, 2000, < 15

23 Case: /03/2010 ID: DktEntry: 21-1 Page: 23 of 41 (23 of 42) Board of Elections would not certify medical marijuana initiatives. Marijuana Policy Project v. U.S., supra, at Section 167(b) of the Barr Amendment was not a D.C. Code Ann appropriations prohibition. Rather, 167(b) overturned 18 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, Thereafter, Congress approved D.C. Stat 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 , 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. 16

24 Case: /03/2010 ID: DktEntry: 21-1 Page: 24 of 41 (24 of 42) Costa Mesa refers to opinions of Rep. Elanor Holmes Norton regarding Congress interference with the District s local budget. CMOB at 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 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 and then subsequent approval of D.C. Stat , 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 , Rep. Jason Chaffetz proposed House Joint Resolution 93 seeking to invalidate the District s medical marijuana law. H.J.Res. 93 (111 TH Congress, First Session) (2010), Rep. Jason Chaffetz, 3 rd Dist., Utah). The resolution proposed by Rep. Chaffetz was not accepted. 17

25 Case: /03/2010 ID: DktEntry: 21-1 Page: 25 of 41 (25 of 42) 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 H.Rept , 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 , supra. It approved D.C. Stat on July 29, 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 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 18

26 Case: /03/2010 ID: DktEntry: 21-1 Page: 26 of 41 (26 of 42) local control to eliminate undue congressional interference. H.Rept , 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 It follows the District did not have that authority before 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 , 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. 19

27 Case: /03/2010 ID: DktEntry: 21-1 Page: 27 of 41 (27 of 42) 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 section 19 ) 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 , 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 Gonzales v. Oregon 546 U.S. at 289, infra, (J. Scalia, dissenting). 20

28 Case: /03/2010 ID: DktEntry: 21-1 Page: 28 of 41 (28 of 42) C. D.C. Stat 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 21

29 Case: /03/2010 ID: DktEntry: 21-1 Page: 29 of 41 (29 of 42) 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 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 22

30 Case: /03/2010 ID: DktEntry: 21-1 Page: 30 of 41 (30 of 42) 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. 23

31 Case: /03/2010 ID: DktEntry: 21-1 Page: 31 of 41 (31 of 42) (emphasis added). The Court determined that Congress had properly done that in the Barr Amendment 20. 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 ; H.Rept 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 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. 24

32 Case: /03/2010 ID: DktEntry: 21-1 Page: 32 of 41 (32 of 42) 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 through the Home Rule Act. That District law included reductions and exemptions 21 for medical marijuana possession, use, and distribution 22. Congress could not have intended the CSA to contravene the District s 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 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 but before enactment of and D.C. Stat Not a formal regulation but rather an agency policy document, when considered using a Skidmore v. Swift & Co., 323 U.S D.C. Act (b). 22 D.C. Act is the District s local controlled substances regulation not the federal CSA. 25

33 Case: /03/2010 ID: DktEntry: 21-1 Page: 33 of 41 (33 of 42) (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 Clause 23 or state law preemption 24 issues. With the exception of Barber v. Gonzales, No. CV EFS, 2005 WL 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 It did not consider or analyze s legislative history 25. 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 s 23 U.S. Constitution, Article 1, Section 8, Clause 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 (Barber discussion). 26

34 Case: /03/2010 ID: DktEntry: 21-1 Page: 34 of 41 (34 of 42) 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 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 27