Robert Celt
New Member
In an unprecedented move, Upland could be forced to hold a special election for a ballot measure aimed at overturning the city's total ban on medical marijuana dispensaries, according to a tentative opinion by an appellate court.
But there's a catch. The California Cannabis Coalition's ballot measure has to appear on the ballot by the June primary; otherwise, it could be put off until the November ballot.
"The city is required to place the initiative on a special election ballot," according to the tentative ruling released last week and obtained by this publication.
A three-judge panel will listen to oral arguments March 1. Until then, City Attorney Richard Adams said the decision is not final.
"There is no decision, yet," he said. "Our firm has had success where the tentative was against us and got the court to overturn the tentative decision."
The ballot measure proposes three dispensaries be permitted to operate in Upland. Deliveries would also be allowed.
The legal quandary dates back to January 2015, when an initiative proposed by the coalition garnered the necessary signatures – 15 percent of the voters in the last election – to qualify for a special election.
The council, however, argued a component of the initiative, which would require dispensaries to pay $75,000 in annual licensing and inspection fees, was a tax. Any new tax by a government agency must be approved by the voters in a general election, the city argued.
The issue was taken to Superior Court in May, where a San Bernardino judge ruled the provision was indeed a tax, and Upland would have to wait to place the measure on the Nov. 8 general election ballot.
Roger Jon Diamond, the Santa Monica-based attorney representing the coalition, filed an appeal with the Fourth District Court of Appeal, arguing the state Constitution did not apply because residents were proposing the initiative, not the local government.
The appellate court tentatively agreed.
If the decision stands, it could be unprecedented in the area, Adams said.
"This has got to be one of the rarest appeals. There's no case law for this," he said.
Diamond agreed.
But not everything in the opinion is clear, he said. The ruling could be for naught if Upland doesn't place the initiative on the June ballot.
That gives the city until March 11 to call for the special election.
"This is because, in order to consolidate a special election on CCC's initiative with the city's primary election on June 7, 2016, the special election must be ordered at least 88 days after the date of the order of election under Elections code," according to the legal document.
If the special election is not set by next month, the opinion states the initiative could be consolidated with the regular election on Nov. 8.
"It wouldn't be (fair) to win the case but lose the battle," said Diamond.
If the coalition succeeds in reversing the trial court's decision, Diamond said he is going to push for the initiative to be consolidated with the June primary, which would save the city money over a stand-alone special election.
"It's especially important to treat the tentative opinion more than a normal opinion would be treated. We're dealing with special timing. The longer the city waits, the more damage it does," Diamond said.
Diamond said he will ask the court that the special election is held in June or before November.
"We've been pushing as fast as we could to get the matter resolved. The city has been delaying," he said.
Upland could also decide to adopt the measure or adopt a modified version if it were concerned about costs, he added.
The tentative opinion also found that the coalition would be awarded the costs associated with the case, which Diamond said amounts to a couple of thousands of dollars in filing fees. But he said he plans to seek attorney fees as well, which could amount to about $50,000.
News Moderator: Robert Celt 420 MAGAZINE ®
Full Article: Legal Opinion Could Put Upland, CA MMJ Initiative On Ballot As Soon As June
Author: Liset Márquez
Contact: Daily Bulletin
Photo Credit: Flickr
Website: Daily Bulletin
But there's a catch. The California Cannabis Coalition's ballot measure has to appear on the ballot by the June primary; otherwise, it could be put off until the November ballot.
"The city is required to place the initiative on a special election ballot," according to the tentative ruling released last week and obtained by this publication.
A three-judge panel will listen to oral arguments March 1. Until then, City Attorney Richard Adams said the decision is not final.
"There is no decision, yet," he said. "Our firm has had success where the tentative was against us and got the court to overturn the tentative decision."
The ballot measure proposes three dispensaries be permitted to operate in Upland. Deliveries would also be allowed.
The legal quandary dates back to January 2015, when an initiative proposed by the coalition garnered the necessary signatures – 15 percent of the voters in the last election – to qualify for a special election.
The council, however, argued a component of the initiative, which would require dispensaries to pay $75,000 in annual licensing and inspection fees, was a tax. Any new tax by a government agency must be approved by the voters in a general election, the city argued.
The issue was taken to Superior Court in May, where a San Bernardino judge ruled the provision was indeed a tax, and Upland would have to wait to place the measure on the Nov. 8 general election ballot.
Roger Jon Diamond, the Santa Monica-based attorney representing the coalition, filed an appeal with the Fourth District Court of Appeal, arguing the state Constitution did not apply because residents were proposing the initiative, not the local government.
The appellate court tentatively agreed.
If the decision stands, it could be unprecedented in the area, Adams said.
"This has got to be one of the rarest appeals. There's no case law for this," he said.
Diamond agreed.
But not everything in the opinion is clear, he said. The ruling could be for naught if Upland doesn't place the initiative on the June ballot.
That gives the city until March 11 to call for the special election.
"This is because, in order to consolidate a special election on CCC's initiative with the city's primary election on June 7, 2016, the special election must be ordered at least 88 days after the date of the order of election under Elections code," according to the legal document.
If the special election is not set by next month, the opinion states the initiative could be consolidated with the regular election on Nov. 8.
"It wouldn't be (fair) to win the case but lose the battle," said Diamond.
If the coalition succeeds in reversing the trial court's decision, Diamond said he is going to push for the initiative to be consolidated with the June primary, which would save the city money over a stand-alone special election.
"It's especially important to treat the tentative opinion more than a normal opinion would be treated. We're dealing with special timing. The longer the city waits, the more damage it does," Diamond said.
Diamond said he will ask the court that the special election is held in June or before November.
"We've been pushing as fast as we could to get the matter resolved. The city has been delaying," he said.
Upland could also decide to adopt the measure or adopt a modified version if it were concerned about costs, he added.
The tentative opinion also found that the coalition would be awarded the costs associated with the case, which Diamond said amounts to a couple of thousands of dollars in filing fees. But he said he plans to seek attorney fees as well, which could amount to about $50,000.
News Moderator: Robert Celt 420 MAGAZINE ®
Full Article: Legal Opinion Could Put Upland, CA MMJ Initiative On Ballot As Soon As June
Author: Liset Márquez
Contact: Daily Bulletin
Photo Credit: Flickr
Website: Daily Bulletin
