California law has decriminalized weed. Local governments, however, may regulate the use, sale, possession, and other things (like it can regulate other perfectly legal things). You know, police power kind of regulation.
Under that latter authority, the County of Santa Cruz adopted an ordinance that prohibits a medical weed facility from growing more than 99 plants. A dispensary was growing way more than 99 plants: more like 2,200 to be precise. This is Santa Cruz, man.
Well, the Sheriff's Department didn't quite see it the same way. Under the authority of the ordinance, they seized the weed, and issued a notice of violation of the law. The dispensary sued for a taking (and other causes of action), and among the remedies sought was a return of the plants. The trial court demurred (without leave to amend, for all you California practitioners), on the basis that it isn't a taking for the government to seize illegal property, and is under no obligation to return such property.
The court of appeal concluded that because weed has been functionally legal under state criminal law since 1996, the plants are not illegal contraband. The court concluded that the county ordinance was not really a classic police power regulation, but was more like zoning (regulating the use of land), and it could not criminalize what state law had not made criminal (even though violation of the county ordinance was a criminal offense).
Thus, the court held, the complaint validly stated a claim for return of the plants. Remember, this was up on a demurrer, which meant that the court of appeal assumed the most critical fact is true: that the plaintiff's weed plants complied with state law. Ultimately that might not be true, but for purposes of the appeal it is deemed true. "If the plaintiff was cultivating marijuana in a manner not allowed by state law, the marijuana would indeed be contraband and not subject to return." Slip op. at 8.
What about the takings claim? On that one, the court employed a different analysis that looked at the county ordinance as a criminal offense, and came to a different conclusion, one we just can't square:
An essential element of the claim is that the property was taken for public use or damaged in connection with a public work of improvement. (Ibid.) Here, the marijuana was seized in connection with enforcing the ordinance prohibiting cultivation, violation of which is a criminal offense. (See Santa Cruz County Code §§ 7.126.070 (A); 19.01.030(A).) But inverse condemnation has never been applied “to require a public entity to compensate a property owner for property damage resulting from the efforts of law enforcement officers to enforce the criminal laws.” (Customer Co. v City of Sacramento, supra, at p. 377–378.) The complaint contains no allegation indicating the marijuana was taken for public use or damaged in connection with a public work of improvement, so it does not state a cause of action for inverse condemnation.The demurrer was properly sustained as to the causes of action seeking damages (trespass, conversion, and inverse condemnation).
Slip op. at 11.
Sorry, we don't get the distinction. If Five-O can't keep your weed, why isn't it a taking if they do?
The court seems to be applying the old "there's no taking when the government is exercising its police powers" rule, a rule we've criticized as nonsensical. And, even under the court's analysis, isn't a seizure of (allegedly) illegal property "for public use?" What are we missing here?
Granny Purps, Inc. v. County of Santa Cruz, No. H045387 (Cal. Ct. App. Aug. 5, 2020)
