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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT






No. 10-55769
_______________________________________

** PRELIMINARY INJ UNCTION APPEAL **

MARLA J AMES, WAYNE WASHINGTON,
J AMES 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 REJ ECTED 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 ADAS 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. ADAS 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 DISTRICTS
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

ii

C. CONGRESS ACTED DELIBERATELY WHEN IT ALLOWED THE DISTRICT OF
COLUMBIA TO IMPLEMENT INITIATIVE 59 AND LEGALIZE MEDICAL MARIJ UANA .... 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 MARIJ UANA ...................................... 21
D. CONGRESS ACTION IN WASHINGTON D.C. NECESSARILY VITIATES CONFLICT
AND OBSTACLE PREEMPTION IN THE LIMITED AREA OF MEDICAL MARIJ UANA ........ 21
E. THE OCTOBER 2009 J USTICE 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

iii

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
J ackson v. District of Columbia Bd. of Elections and Ethics, No. 10-CV-20 (D.C.
Court of Appeals, 7/15/2010) ............................................................................... 14
J ames v. City of Costa Mesa, 2010 U.S. Dist. LEXIS 53009 (C.D. Cal. 2010) ....... 2
J ones 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 Assns, 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 (111
th
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 J uly 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. J uly 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, 529530 (1991)
.............................................................................................................................4, 8
Congressman Steny Hoyer, Op-Ed., Not Exactly What We Intended J ustice
OConnor, Washington Post, J an. 20, 2002, Section B, Page 1 ......................... 8

v

David Stout and Solomon Moore, U.S. Wont 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 (106
th
Congress, First Session) (1999) ................................................... 15
H.Rpt. 111-202 (111
th
Congress, First Session) (2009) ........................................... 14
Senate Hearing, 101
st
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. Wont 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

vi

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

1

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 Courts 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

2

their complaint in District Court on April 2, 2010. Central District CA No. SACV
10-00402ALG(MLGx); J ames 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 Mesas 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 Forests 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 statutes 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

3

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 Courts order referred
to its interpretation of the statute (E.R. 1 at 5-6), an analysis of 12210s plain
language was included in appellants opening brief. Because the District Courts
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 statutes 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).

4

may appear on superficial examination. United States v. American Trucking
Assns, 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 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. 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 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 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, 529530 (1991).

5

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 statute
4
, 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.

6

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).

7


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
Mesas 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 Courts 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.

8

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 ADAs 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 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. 110-325 (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 Hoyers 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, 529530 (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 J ustice
OConnor, Washington Post, J an. 20, 2002, Section B, Page 1.

9

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 persons
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

10

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) , J ustice 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. ADAs 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 ADAs illegal drug use prohibition
addresses ADA eligibility and defines conduct that is considered illegal use of

11

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 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 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).

12

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 1973
11
. 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. 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 59
14
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 bills 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 Districts 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 Mesas

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 Districts 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 Mesas implication, Congress did not abrogate its
constitutional duties in the Home Rule Act. J ackson 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 (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. 111-202 (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.

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 Districts medical marijuana


initiative as a prohibition on the Districts ability to appropriate funds imposed by
Congress
16
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 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. 3064 (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 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) 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, 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 J erry Lewis and J o 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 Districts 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
Districts 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. J ason
Chaffetz proposed House J oint Resolution 93 seeking to invalidate the Districts
medical marijuana law. H.J .Res. 93 (111
TH
Congress, First Session) (2010), Rep.
J ason Chaffetz, 3
rd
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 J uly 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 Districts 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 Districts 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 (OConnor, 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 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 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. J ones 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 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. 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, J ustice 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
exemptions
21
for medical marijuana possession, use, and distribution
22
. Congress
could not have intended the CSA to contravene the Districts 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 J ustice Departments 10/19/2009 memorandum predating 111-117s
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 Districts 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 Clause
23
or state
law preemption
24
issues. With the exception of Barber v. Gonzales, No. CV-05-
0173-EFS, 2005 WL 1607189 at 4 (E.D. Wash. J uly 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 12210s 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 12210s

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 states medical
marijuana law in trying to overcome the ADAs 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 force
26
. 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 laws
27
. A national poll showed that 81% of Americans
support legalization of medical marijuana when recommended by a physician
28
.
Congress has allowed Washington D.C. to implement its Legalization of
Marijuana for Medical Purposes law and has conveyed to that citys 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 (106
th
Congress, First Session) (1999), sections 167(a) and 167(b)
27
David Stout and Solomon Moore, U.S. Wont 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) years
29
. 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 Districts
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 J une 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 Districts 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 J ames v. Costa Mesa, et al., 9
th
Circuit Case No. 10-
55769, electronically using the Courts 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
J ones & Mayer
3777 N Harbor Blvd
Fullerton, CA 92835

Courtesy Paper Copy:

Mr. J ames Touchstone
J ones & Mayer
3777 N Harbor Blvd
Fullerton, CA 92835

Mr. J eff 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 Courts ECF system.
EXECUTED this 3rd day of August, 2010:


____________________________
Matthew S. Pappas
Attorney for Plaintiff-Appellants