United States District Court, N.D. California
April 21, 2004.
COUNTY OF SANTA CRUZ, CALIFORNIA; CITY OF SANTA CRUZ, CALIFORNIA; VALERIE CORRAL; ELADIO V. ACOSTA; JAMES DANIEL BAEHR; MICHAEL CHESLOSKY; JENNIFER LEE HENTZ; DOROTHY GIBBS; HAROLD F. MARGOLIN; and WO/MEN'S ALLIANCE FOR MEDICAL MARIJUANA, Plaintiffs,
JOHN ASHCROFT, Attorney General of the United States; KAREN P. TANDY, Administrator of the Drug Enforcement Administration; JOHN P. WALTERS, Director of the Office of National Drug Control Policy; and 30 UNKNOWN DRUG ENFORCEMENT ADMINISTRATION AGENTS, Defendants
The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION
Plaintiffs seek reconsideration of this Court's decision denying
their motion for a preliminary injunction and granting Defendants' motion
to dismiss the instant action with leave to amend.*fn1 The motion for reconsideration is opposed. The Court
has read and considered the papers submitted by the parties and has
considered the arguments of counsel presented at the hearing on March 31,
2004. For the reasons set forth below, the motion for reconsideration
will be granted.
The factual and legal background of the present motion, as set forth in
this Court's earlier published opinion, is as follows:
Plaintiff Wo/Men's Alliance for Medical Marijuana ("WAMM") is a
collective hospice organization located in Davenport, California that
maintains an office in Santa Cruz, California. See Declaration
of Valerie Corral in Support of Plaintiffs' Motion for Preliminary
Injunction ("Corral PI Decl."), ¶ 10. It has approximately 250
member-patients who suffer from HIV or AIDS, multiple sclerosis,
glaucoma, epilepsy, various forms of cancer, and other serious illnesses.
See id. The vast majority of WAMM's members are terminally ill.
See id. WAMM assists seriously ill and dying patients by
providing them with the opportunity to cultivate marijuana plants for
their personal medicinal use and to produce marijuana medications
collectively used by members to alleviate their pain and suffering.
See id. ¶¶ 13, 18. Both the cultivation and use of marijuana
by WAMM members are carried out only on the recommendation of the
patients' respective physicians in compliance with California's medicinal
marijuana statute. See id. ¶¶ 11, 13. Members of WAMM assist
in cultivating marijuana plants to the extent of their physical
abilities; they do not purchase, sell, or otherwise distribute marijuana.
See id. ¶¶ 11, 13, 20. WAMM also provides community support
to seriously ill and dying patients through weekly meetings and other
forms of outreach. See id. ¶ 12. WAMM is supported by
voluntary contributions, and its members are not charged for their use of
marijuana. See id. ¶ 20.
Plaintiff Valerie Corral, the executive director of WAMM, and her
husband Michael Corral, her primary caregiver, founded the organization in 1993.
See id. ¶ 10. The Corrals reside on a farm in Davenport,
California, where they have permitted members of WAMM to cultivate
marijuana plants for medicinal use. See id. Valerie Corral and
Plaintiffs Eladio V. Acosta, James Daniel Baehr, Michael Cheslosky,
Jennifer Lee Hentz, Dorothy Gibbs, and Harold F. Margolin (collectively
"the Patient-Plaintiffs") have used medicinal marijuana on the
recommendation of their respective physicians to alleviate pain and
suffering caused by their illnesses and to treat certain other symptoms.
The Controlled Substances Act ("CSA"), 21 U.S.C. § 801, et
seq., provides that "[e]xcept as authorized by this subchapter, it
shall be unlawful for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance."
21 U.S.C. § 841(a)(1).*fn2 California's medicinal marijuana statute, the Compassionate Use Act of 1996, was enacted
by California voters on November 5, 1996, when they passed Proposition
215. See Cal. Health & Safety Code § 11362.5. The
statute creates an exemption from state laws that prohibit the
cultivation and use of marijuana: it permits patients and their primary
caregivers to possess and cultivate marijuana for personal medicinal use
upon a physician's recommendation or approval. Id. §
11362.5(d). Additionally, the California legislature has enacted a
provision creating exemptions for qualified patients and their designated
primary caregivers "who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical
purposes." Id. § 11362.775. There is no dispute that the
activities of WAMM and the Patient-Plaintiffs, each of whose primary
caregiver also is a WAMM member, are legal under the statute.
Prior to passage of Proposition 215, Plaintiff County of Santa Cruz
("the County") had adopted an ordinance directing County officials to use
their authority to support the availability of marijuana for medicinal
use. See Santa Cruz County Code Ch. 7.122.020-7.1222.060.
Following enactment of the Compassionate Use Act of 1996, Plaintiff City
of Santa Cruz ("the City") enacted additional legislation to facilitate
implementation of the statute. See Santa Cruz Municipal Code Ch.
6.90.010, et seq. Among other things, the City's medicinal
marijuana ordinance authorizes the City to deputize individuals and
organizations as medicinal marijuana providers to assist the City in
implementing the statute. Id. Ch. 6.90.040(1).
On September 5, 2002, between twenty and thirty armed agents led by
officers of the federal Drug Enforcement Administration ("DBA") arrived
at the Corrals' property to execute a search warrant. See Corral
PI Decl., ¶ 27. The DBA agents forcibly entered the premises, pointed
loaded firearms at the Corrals, forced them to the ground, and handcuffed
them. See id. The Corrals subsequently were transported to the federal courthouse
in San Jose, where they were released without being charged. See
id. ¶¶ 27, 28. DBA agents remained on the premises for eight
hours, seizing 167 marijuana plants, many of the WAMM members' weekly
allotments of medicinal marijuana, various documents and records, and
other items. See id. ¶ 28.
Less than two weeks after the DEA's September 5, 2002 raid, the
County's Board of Supervisors adopted a resolution condemning the raid
and urging the federal government not to indict the Corrals for their
activities. See Declaration of Ellen Pirie . . . in Support of
Plaintiffs' Motion for Preliminary Injunction ("Pirie Decl."), Ex. B. On
September 17, 2002, the City permitted WAMM members to receive their
weekly allotments of medicinal marijuana at the Santa Cruz City Hall.
See Corral PI Decl., ¶ 33; Declaration of Emily Reilly . . .
in Support of Plaintiffs' Motion for Preliminary Injunction ("Reilly
Decl."), ¶ 5. The City Council subsequently adopted a resolution
deputizing WAMM and the Corrals to function as City-authorized medicinal
marijuana providers pursuant to the City's medicinal marijuana ordinance.
See Reilly Decl., Ex. A.
On September 24, 2002, WAMM and the Corrals filed a related action
against the federal government in this Court seeking return of the
marijuana plants and other property seized in the September 5, 2002 raid
pursuant to Federal Rule of Criminal Procedure 41(e). See
Wo/Men's Alliance for Medical Marijuana, et al. v. United
States, No. 02-MC-7012 JF (N.D. Cal. filed Sept. 24, 2002) ("the
related action").*fn3 The movants argued that their conduct did not
affect interstate commerce and that application of the CSA to such
conduct thus constituted an unlawful exercise of Congressional powers
under the Commerce Clause. This Court concluded, however, that
disposition of the movants' motion was controlled by Ninth Circuit
precedent that precluded the relief sought. Accordingly, the Court denied
the motion for return of property by order issued December 3, 2002.
See Wo/Men's Alliance for Med. Marijuana v. United States, No.
02-MC-7012 JF, 2002 U.S. Dist. LEXIS 26389 (N.D. Cal. Dec. 3, 2002). That
decision has been appealed to the United States Court of Appeals for the
Ninth Circuit, and oral argument took place in September 2003.
On April 23, 2003, Plaintiffs filed the instant action against
Defendants John Ashcroft, Attorney General of the United States; Karen P.
Tandy, Administrator of the DEA*fn4; John P. Walters, Director of the
Office of National Drug Control Policy; and 30 Unknown DEA Agents,
seeking to enjoin alleged violations of their constitutional rights. They
assert the following claims: (1) deprivation of fundamental rights under
the Fifth and Ninth Amendments to alleviate pain and suffering and to
control the circumstances of one's own death; (2) deprivation of the
fundamental right to follow the recommendations of one's physician; (3)
unlawful exercise of Congressional powers under the Commerce Clause; and
(4) violation of the Tenth Amendment. Plaintiffs also seek a declaration
that WAMM and Valerie Corral are immune from civil and criminal liability
under the CSA for their activities, as well as damages for Defendants'
alleged violations of their constitutional rights. Only the third claim
is at issue in the present motion.
II. LEGAL STANDARD
A. Motion for a Preliminary Injunction
The primary purpose of a preliminary injunction is to preserve the
status quo pending a trial on the merits. Los Angeles Memorial
Coliseum Comm'n v. Nat 7 Football League, 634 F.2d 1197,
1200 (9th Cir. 1980). A party seeking a preliminary injunction must show
either (1) a combination of probable success on the merits and the
possibility of irreparable injury or (2) the existence of serious
questions going to the merits and that the balance of hardships tips in
its favor. Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir.
1998), aff'd, Saenz v. Roe, 526 U.S. 489 (1999). These
formulations represent "two points on a sliding scale in which the
required degree of irreparable harm increases as the probability of
success decreases." United States v. Odessa Union Warehouse
Co-op, 833 F.2d 172, 174 (9th Cir. 1987). However, "even if the
balance of hardships tips decidedly in favor of the moving party, it must
be shown as an irreducible minimum that there is a fair chance of success on the
merits." Johnson v. Cal. State Bd. of Accountancy,
72 F.3d 1427, 1430 (9th Cir. 1995) (citing Martin v. Int'l Olympic
Comm., 740 F.2d 670, 675 (9th Cir. 1984)). Depending on the nature
of the case, the Court also may consider whether the public interest will
be advanced by granting the requested relief. Id.; Westlands
Water Dist. v. Natural Resources Defense Council, 43 F.3d 457, 459
(9th Cir. 1994).
B. Motion to Dismiss
A complaint may be dismissed as a matter of law for only two reasons:
(1) lack of a cognizable legal theory or (2) insufficient facts under a
cognizable legal theory. Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Robertson v. Dean Witter Reynolds, Inc.,
749 F.2d 530, 533-34 (9th Cir. 1984) (citing 2A J. MOORE, ET AL.,
MOORE'S FEDERAL PRACTICE ¶ 12.08 at 2271 (2d ed. 1982)). "A court may
dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spaulding, 467 U.S. 69,
73 (1984); see also Argabright v. United States, 35 F.3d 472,
474 (9th Cir. 1994). Motions to dismiss generally are viewed with disfavor
under this liberal standard and are granted rarely. Gilligan v. Jamco.
Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).
For purposes of a motion to dismiss, the plaintiff's allegations are
taken as true, and the Court must construe the complaint in the light
most favorable to the plaintiff. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969); Argabright, 35 F.3d at 474. However,
the Court "is not required to accept legal conclusions cast in the form
of factual allegations if those conclusions cannot reasonably be drawn
from the facts alleged." Clegg v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994). The Court's review is limited to the
face of the complaint, documents referenced by the complaint, and matters
of which the court may take judicial notice. Levine v. Diamanthuset,
Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); In re Stac Elecs.
Sec. Litig., 89 F.3d 1399, 1405 n.4 (9th Cir. 1996).
C. Motion for Reconsideration
After a court enters an order, it may set aside or change its order
pursuant to either its own local rules or Rule 60 of the Federal Rules of
Civil Procedure. Ground v. Sullivan, 785 F. Supp. 1407, 1411 n.3
(S.D. Cal. 1992). Granting relief under Rule 60 is a matter within the discretion of the district court. Thompson v. Housing Auth. of
Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986). Plaintiffs ask for
reconsideration of this Court's August 28, 2003 Order ("the Order"),
pursuant to Rule 60(b)(5), which permits relief from an order if "a prior
judgment upon which it is based has been reversed or otherwise vacated."
Additionally, Civil Local Rule 7-9(b)(2), permits reconsideration if the
moving party specifically shows "the emergence of new material facts or a
change of law occurring after the time of such order."
A. Plaintiffs' Motion for Preliminary Injunction
1. Likelihood of Success on the Merits
Plaintiffs' seek reconsideration of this Court's determination
concerning their likelihood of success on the merits in light of new
Ninth Circuit authority supporting their arguments under the Commerce
Clause, U.S. CONST, art. I, § 8, cl. 3. The Court previously
concluded that Ninth Circuit decisions in a number of earlier cases
required it to hold that the CSA as applied to the facts of this case was
constitutional and consistent with the Commerce Clause. See, e.g.,
United States v. Visman, 919 F.2d 1390 (9th Cir. 1990).
However, subsequent to the issuance of the Order, the Ninth Circuit for
the first time expressed its view as to whether the CSA constitutionally
applies to the personal, noncommercial use of marijuana for medicinal
purposes.*fn5 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir.,
By a two to one vote, the court determined that such activities do not
involve instrumentalities or channels of interstate commerce and it
therefore needed to decide only whether they substantially
affected interstate commerce. See United States v. Lopez,
514 U.S. 549, 558-59 (1995). Pursuant to the analytical framework
articulated by the Supreme Court in United States v. Morrison,
529 U.S. 598, 610-12 (2000), the court considered the following
questions: (1) Does the statute in question regulate commerce or any sort
of economic enterprise?; (2) Does the statute contain any express
jurisdictional element which might limit its reach to a discrete set of cases?; (3) Does the statute or its
legislative history contain express congressional findings that the
regulated activity affects interstate commerce?; and (4) Is the link
between the regulated activity and a substantial affect on interstate
commerce attenuated? See id.
To answer the first question, a court first must define the activities
at issue based on the particular facts of the case. In Raich,
the majority defined the class of activities at issue as "intrastate
noncommercial cultivation, possession, and use of marijuana for personal
medicinal purposes on the advice of a physician and in accordance with
state law" and not "drug trafficking." Raich, 352 F.3d at
1228-29. The class of activities did "not involve sale, exchange, or
distribution." Id. at 1229. The court then considered whether
this defined class of activities constituted commerce or any sort of
economic enterprise. It focused particularly on the fact that the purpose
of the medicinal marijuana was personal use and not economic or
commercial use: the users did "not seek to exchange it or to acquire
marijuana from others in a market." Id. at 1231. In contrast,
the court characterized the CSA as "part of a wider regulatory scheme
criminalizing interstate and intrastate commerce in drugs."
Id. at 1230.*fn6 It thus concluded that the CSA, as applied to
the "cultivation, possession, and use of marijuana for medicinal purposes
and not for exchange or distribution," did not regulate commerce or any
sort of economic enterprise. Id. at 1229.
Addressing the second Morrison factor, the court found that
there is no jurisdictional element limiting the CSA to a discrete set of
cases wherein interstate commerce is substantially affected. Id.
at 1231. It then concluded that the third factor weighed in favor of
finding the CSA constitutional because there were at least some
Congressional findings indicating that intrastate possession of
controlled substances impacted interstate commerce. Id. at 1232.
However, the court also noted that Congress made no findings specifically
addressing the class of activities at issue and that the findings that
were made were limited to the effects of intrastate activity on
interstate commerce, that is, the trafficking or distribution of
controlled substances. Id. at 1231-32. "The findings are not specific to marijuana, much less
intrastate medicinal use of marijuana that is not bought or sold and the
use of which is based on the recommendation of a physician." Id.
at 1232. The court also noted that this factor does not weigh as heavily
in the calculation as do the first and fourth factors. Id.
Finally, the court concluded that the link between the regulated
activity and the substantial effect on interstate commerce is attenuated.
Although "the intrastate cultivation, possession and use of medical
marijuana on the recommendation of a physician could, at the margins,
have an effect on interstate commerce by reducing the demand for
marijuana that is trafficked interstate[,] . . . [i]t is far from clear
that such an effect would be substantial." Id. at 1233. Weighing
the four factors, the court held that the CSA, as applied to the facts of
the case, is likely unconstitutional. The court noted that it is
particularly important to ensure that Congress's use of its Commerce
Clause power is appropriate in the criminal law context. Id. at
1234. Unless and until it is overruled,*fn7 Raich is
controlling authority in this circuit and expressly represents a change
in the law applicable to this case.*fn8
Defendants nonetheless attempt to distinguish this case from
Raich in two respects. First, they assert that while the
Plaintiffs in Raich grew and cultivated their own plants, WAMM-a
collective-grows and cultivates plants and then distributes
medicinal marijuana to end users. Second, they contend that because it
collects an administrative fee from members who can afford and choose to
pay it, WAMM is engaged in a commercial activity. Plaintiffs dispute the
factual basis of Defendants' argument, asserting that all members of WAMM
are users who mutually assist each other in alleviating pain. Corral PI
Decl., ¶ 12; Declaration of Valerie Corral, submitted in the related
action, ("Corral WAMM Decl."), ¶ 1. "Patients assist in caring for
and harvesting the plants to the extent of their physical ability."
Corral WAMM Decl., ¶ 2. Plaintiffs also assert that "[p]atients are
not charged for the marijuana. . . . W.A.M.M. is supported by voluntary
contributions from patients and others, but the availability of medicinal
marijuana for a patient is not dependent upon or related to their
financial contributions." Id.; see also Corral PI Decl., ¶
The weight of the evidence in the record supports Plaintiffs' position.
First, the Court notes that it already has made explicit findings
supporting Plaintiffs' view of the appropriate classification. For
example, it has found that "[m]embers of WAMM assist in cultivating
marijuana plants to the extent of their physical abilities; they do not
purchase, sell, or otherwise distribute marijuana," County of Santa
Cruz, Cal. v. Ashcroft, 279 F. Supp.2d 1192, 1196 (N.D. Cal. 2003),
and "WAMM is supported by voluntary contributions, and its members are
not charged for their use of marijuana," id. Second, while it is
true that the plaintiffs in Raich were individuals, rather than
a collective, the lead plaintiff in that case-Angel McClary Raich-was
assisted by others in growing her plants. Thus, the fact that some WAMM
members require assistance-because they may be physically unable to grow,
cultivate, or process the plants because of the advanced stage of their
illness-is immaterial to the present legal analysis. The only difference
between this case and Raich is the existence of a collective. In
both cases, whether the use of medicinal marijuana is facilitated by a
collective or by friends, such use remains limited to personal
noncommercial medical purposes. California state law also
supports this characterization of Plaintiffs' activities. It provides
immunity to "[q]ualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients and
persons with identification cards, who associate within the State of
California in order collectively or cooperatively to cultivate marijuana
for medical purposes." Cal. Health & Safety Code § 11362.775.
Based on the present record, the Court cannot conclude that the
financial contributions that some members make to assist in WAMM's
administrative costs convert personal use into commercial use. It is
undisputed that the medicinal marijuana is not grown or cultivated for
sale or profit but rather is grown specifically for use by collective
members who use it on the advice of their physicians. Accordingly, as in Raich, the
activity at issue in the present case is best defined as "intrastate
noncommercial cultivation, possession, and use of marijuana for personal
medical purposes on the advice of a physician and in accordance with
state law." On the particular facts of this case, it is immaterial
whether or not such cultivation, possession, and use is performed wholly
by a single person or with the assistance of others, such as members of a
collective, as long as such services are not performed for profit.
Raich thus compels this Court to revise its analysis of the
first factor of the Morrison test.*fn9 In light of
Raich, the first factor, which is "ordinarily the most important"
one, McCoy, 323 F.3d 1129, now weighs in favor of Plaintiffs.
The Court already has found that the second and fourth factors also weigh
in favor of Plaintiffs. Only the third factor, which according to the
Raich majority should be taken "with a grain of salt,"*fn10
Raich, 352 F.3d at 1232, weighs in favor of Defendants.
Accordingly, the Court concludes that, at least in the Ninth Circuit, the
CSA does not extend, constitutionally pursuant to the Commerce Clause, to
the activities at issue in the present action.
2. Irreparable Injury
This Court has determined in both the present action and the related
action that Plaintiffs have made a sufficient showing that they face a
significant threat of irreparable injury because of Defendants' actions.
See County of Santa Cruz, Cal., 279 F. Supp.2d at 1199-1200;
Wo/Men's Alliance for Med. Marijuana, 2002 U.S. Dist.
LEXIS 26389 at *6. In deference to the interests of the executive and
legislative branches, the Court has inquired of Defendants through
counsel whether they would agree voluntarily to refrain from taking
action against Plaintiffs while the Supreme Court considers the
government's petition for writ of certiorari in Raich.
Defendants have responded that they "cannot agree, formally or
informally, to stay enforcement of the [CSA] as to the plaintiffs, or to
anyone else." Letter from Mark T. Quinlivan, dated April 6, 2004. In the present legal and factual context, a preliminary injunction
thus is necessary to prevent irreparable injury to Plaintiffs.
Absent intervention by the Supreme Court, the change in the law of this
circuit requires this Court to reconsider its decision denying
Plaintiffs' motion for a preliminary injunction. Plaintiffs have
demonstrated irreparable injury and a likelihood of success with respect
to their argument that, on the facts of this case and the controlling
case law in this circuit, the CSA as applied to Plaintiffs is an
unconstitutional exercise of Congress's Commerce Clause power.
B. Defendants' Motion to Dismiss
The Court granted Defendants' motion to dismiss Claims 1 and 2 of
Plaintiffs' complaint (for injunctive and declaratory relief for
deprivation of fundamental rights under the Fifth and Ninth Amendments),
Claim 3 (for injunctive and declaratory relief based upon unlawful
exercise of Congressional powers under the Commerce Clause), Claim 4 (for
injunctive and declaratory relief based upon violation of the Tenth
Amendment), and Claim 5 (for declaratory relief pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201, that Plaintiffs' actions
are protected from civil or criminal liability under the CSA by
21 U.S.C. § 885(d)). For the reasons discussed above, the Court
must reconsider its dismissal of Plaintiffs' claims based upon the
unconstitutional exercise of Congress's Commerce Clause power.
Accordingly, Defendants' motion to dismiss Claim 3 will be denied. For
the reasons previously stated by the Court, Claims 1, 2, 4, and 5 will
be dismissed with leave to amend. ORDER
Good cause therefore appearing, IT IS HEREBY ORDERED that:
(1) Plaintiffs' motion for reconsideration is
(2) Plaintiffs' motion for a preliminary
injunction is GRANTED;
(3) Defendants' motion to dismiss is GRANTED with
leave to amend as to Plaintiffs' first,
second, fourth, and fifth causes of action and
DENIED as to Plaintiffs' third cause of
(4) Any amended complaint shall be filed within
ninety (90) days of the date of this Order;
(5) Counsel for Plaintiffs are directed to prepare
a proposed form of order granting the motion
for preliminary injunction; no bond shall be