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By Sam Reisman
Law360 (July 17, 2023, 6:03 PM EDT) -- A California couple is urging the U.S. Supreme Court to revisit an 18-year-old precedent regarding marijuana policy by taking up their case alleging the county of Mendocino unfairly denied them a medical cannabis growing permit.
In a petition for writ of certiorari filed July 12, Ann Marie Borges and Chris Gurr said the Supreme Court's 2005 decision in Gonzales v. Raich , in which the justices held federal prohibition on cannabis overrode state legalization efforts, was ripe for reconsideration.
Borges and Gurr said a review is warranted in part because of the "seismic shift" in state marijuana laws since the precedential decision. In the intervening years, 38 states have legalized cannabis for medical use, and 23 have legalized it for adult nonmedical use.
"Thirty-eight states have enacted laws and implemented comprehensive regulations for intrastate commerce in cannabis reflecting the will of the voters and legislators notwithstanding Gonzales v. Raich," the petitioners wrote.
"Henceforth, licensed and taxed marijuana growers and distributors in 38 states should be permitted to rebut the presumption that their marijuana is part of interstate commerce," they continued.
According to the petition, the property rights of Borges and Gurr, along with "millions of other citizens in the 38 sovereign states which have created cannabis related property rights," were violated by the Ninth Circuit's ruling in March affirming the dismissal of their action against Mendocino County regulators.
In that decision, the circuit court cited the Gonzales decision and found there could be no federally protected property interest in growing a federally illegal drug. The circuit court in April denied Borges and Gurr an en banc rehearing.
In their petition, the couple told the U.S. Supreme Court that the material circumstances in marijuana regulation had changed considerably since Gonzales, specifically noting jurisdictions like California had established robust regulatory regimes governing the intrastate commerce of marijuana.
The petition quotes from a statement Justice Clarence Thomas made in June 2021, suggesting the Gonzales decision was due for a reexamination and that the federal prohibition on cannabis may no longer be "necessary or proper" given how much latitude states have been given to enact their own legalization policies.
"Once comprehensive, the federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana," Thomas wrote in 2021, a sentence duplicated without citation in Borges and Gurr's petition.
Borges and Gurr originally sued Mendocino County and their neighbor in July 2020, accusing the neighbor of bringing frivolous complaints about the source of their pot farm's water supply and leveraging personal relationships with county officials to get the couple's application denied on false and pretextual grounds. After the farmers' permit was denied, the county rezoned their neighborhood into a cannabis prohibition district.
The pair alleged they were being denied equal protection under the 14th Amendment.
Borges and Gurr had applied for a cultivation permit in 2017, and their permit was preliminarily approved under the business name Goose Head Valley Farms, according to case filings. However, the county argued their application was improper because the two farmers didn't qualify as legacy growers, and in July 2018, the couple's application was denied.
The neighbor was dropped from the suit in 2020, leaving only the couple's equal protection claim against the county in the case.
U.S. District Judge Susan Illston granted summary judgment to the county in April 2022, saying the type of permit Borges and Gurr had sought was designed to bring existing growers into the legal market, but Borges and Gurr had not shown they were existing growers and admitted that when they submitted the application. The judge added they had not shown they were singled out by the county.
Representatives for Borges and Gurr and for the county of Mendocino did not immediately respond to requests for comment on Monday.
Borges and Gurr are represented by John Houston Scott of Scott Law Firm and William A. Cohan of William A. Cohan PC.
Mendocino County is represented in-house by Christian M. Curtis and Michael G. Colantuono and Pamela K. Graham, John A. Abaci and Abigail A. Mendez of Colantuono Highsmith & Whatley PC.
The case is Ann Marie Borges, et al., v. County of Mendocino, California, case no. 23-41, in the U.S. Supreme Court.
--Additional reporting by Sarah Jarvis, Quinn Wilson and Mike Curley. Editing by Philip Shea.
