August 16, 2010

Supreme Court grants review before the Court of Appeal has issued an opinion

The City of Dana Point’s recent efforts to discover the identities of members of marijuana cooperatives in the city by issuing legislative subpoenas has created an unusual procedural situation in the Supreme Court. Specifically, the Court has granted review in five consolidated cases in which the Court of Appeal has issued no opinion.

As explained in this Orange County Register article, the city subpoenaed the pot dispensaries’ membership records. The Orange County Superior Court issued orders enforcing the subpoenas. The dispensaries appealed. And this is where it gets interesting procedurally. The Court of Appeal, Fourth District, Division Three, ruled the orders enforcing the subpoenas are not appealable and the appeals would be deemed petitions for extraordinary writ relief. Before their writ petitions were due, the dispensaries petitioned the Supreme Court for review, challenging the Court of Appeal’s ruling that the orders enforcing the subpoenas are not appealable.

The Supreme Court granted review. According to the Court’s on-line docket, the issue before the Court is limited to the following: “Is an order compelling compliance with a legislative subpoena issued under Government Code section 37104 appealable as a final judgment?” Briefing was completed in late July. The cases have not yet been set for argument.

Kudos to the dispensaries’ lawyers at Evans, Brizendine & Silver and Logan Retoske, LLP for recognizing an issue worthy of review and timely presenting it to the Court despite their cases’ unusual procedural posture.

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