LAKEPORT, Calif. – On Monday a Lake County Superior Court judge upheld a cause of action but threw out two others filed by a group of plaintiffs who sued the county over its interim urgency medical marijuana cultivation ordinance.
Retired Lake County Superior Court Judge Arthur Mann on Monday heard the demurrer in the case that Don Merrill and several anonymous co-plaintiffs filed against the county.
County Counsel Anita Grant said the county pursued the demurrer, which she explained tests the legal sufficiency of a complaint or cause of action.
Merrill and his three co-plaintiffs – one of whom Merrill said has since died – sued the county in early July following the Board of Supervisors’ 4-1 approval of the ordinance, which set plant limits and setback requirements, and prevented cultivation on undeveloped parcels.
In August, Judge David Herrick granted the plaintiffs a preliminary injunction that protected qualified growers – who had planted their crops before July 9 and who were in compliance with state law – through the end of 2012.
At the same time, Herrick did not find that the county’s ordinance was an amendment to the 1996 voter-approved California Compassionate Use Act and that it did not set restrictions that violated state law.
Grant said the demurrer went before Mann on Monday morning, with Senior County Counsel Bob Bridges and Merrill’s attorney, Joseph Elford, presenting their arguments. Mann’s decision came down that afternoon.
In Merrill’s first cause of action, Elford contended that the ordinance unconstitutionally amended the Compassionate Use Act. In the second cause, Elford argued that the ordinance set restrictions on medical marijuana cultivation that was incompatible with state law, and that state law preempted the urgency ordinance.
Grant said Mann granted the demurrer on both of those causes, essentially throwing them out.
However, Grant said Mann, like Herrick, upheld the third action in the case, in which Elford argued that the ordinance violated due process by divesting the plaintiffs of their right to cultivate marijuana after having spent considerable money to plant and grow the crop.
Mann’s ruling doesn’t mean the cause is right, only that it’s a triable issue, said Grant.
She said that the two sides can now focus in on the main cause that may become go to a permanent injunction trial.
When preparing for trial, “You want to kind of separate the wheat from the chaff and get down to the legitimate triable issues,” Grant said, explaining that the demurrer helps streamline the process.
Herrick’s August ruling had implemented protections through the end of the year, to ensure that the cultivation season was over.
Grant said that the next steps are up to the plaintiffs to pursue. A trial on the final cause could still be held, but by that time cultivation for the year likely would be over.
She said the county had received no word of any potential further action by Merrill and his fellow plaintiffs.
When contacted by Lake County News on Tuesday, Elford said in an email, “I will have to talk with my clients about the next steps in this litigation.”
With the two causes of action thrown out, and the deadline on the third cause that was upheld set to expire at the end of December, the county is set to enter the next cultivation season with rules in place.
At its Aug. 21 meeting, the Board of Supervisors extended the interim urgency ordinance. The ordinance will now be in effect until July 6, 2014, while county staff finishes crafting a permanent ordinance to govern medical marijuana cultivation in the county.
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