Marla James v. The City of Costa Mesa

BERZON, Circuit Judge,

concurring in part and dissenting in part:

The statutory interpretation issue at the core of this case is an unusually tough one, as the majority opinion recognizes. Looking at the language of § 12210(d)(1) alone, I would come out where the majority does — concluding that the statute is ambiguous. But unlike the majority, I would not declare a near-draw. Instead, looking at the words alone, I would conclude that the plaintiffs have much the better reading, but not by enough to be comfortable that their interpretation is surely correct. Turning then to the legislative history, I would again declare the plaintiffs the win *837 ner, this time sufficiently, when combined with the language considerations, to adopt their interpretation, absent some very good reason otherwise. And I am decidedly not convinced that the majority’s facile “trump” via the Controlled Substances Act (“CSA”) works, because, among other reasons, the supposed tension relied upon does not exist.

I therefore would not decide the case on the broad ground that medical marijuana users are not protected by the ADA in inclined to agree with the result the majority reaches on the narrower basis that the particular claim made here is not cognizable, it is not appropriate at this juncture to reach that question. I therefore respectfully dissent.

1. Statutory Text

At the heart of this case is § 12210(d)(1) of the ADA, which defines “illegal use of drugs” as

the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

42 U.S.C. § 12210 (d)(1). James and the other plaintiffs (collectively, “James”) argue that the first clause of the second sentence carves out their marijuana use, which is under the supervision of a doctor and in compliance with California law. The Cities, on the other hand, read the statute as creating a single exception — for drug use authorized by the CSA — and argue that the first clause should be read as excepting drug use under supervision of a doctor only when that use complies with the CSA.

Although § 12210(d)(1) is not entirely clear, James has the better reading of the statutory language, albeit not to a dispositive degree. In James’s view, the phrases “use of a drug taken under supervision by a licensed health care professional” and “other uses authorized by the [CSA]” create two different exceptions, so that the ADA protects use of drugs under supervision of a doctor even when that use is not authorized by the CSA. If Congress intended to carve out only drug use authorized by the CSA, after all, the entire first clause — “the use of a drug under supervision by a licensed health care professional” — would have been unnecessary.

a. The use of “other”

The Cities argue, and the district court held, that James’s reading renders the word “other” redundant, since Congress could have more clearly and concisely conveyed the meaning of two distinct exceptions by leaving it out. Under this view, “other” indicates that the exception contained in the first clause, for uses supervised by a doctor, is meant to be a subset of the exception in the second clause, and is included only for clarification and emphasis. This interpretation would, oddly, prefer a minor redundancy — the word “other” — over a major one — the entire first phrase of the second sentence.

Moreover, the word “other” is not necessarily redundant at all. It could be read to indicate that use under supervision of a doctor is meant to be a category of uses entirely subsumed by the larger category of uses authorized by the CSA, but this is not the only possible interpretation. Put another way, omitting the word “other” entirely would certainly have compelled the reading James advances, but its presence does not invalidate her interpretation. There is, after all, a middle ground between these two readings: The two exceptions could be entirely separate categories of uses, or, as the.Cities see them, entirely *838 overlapping, with the former a subset of the latter. But the two clauses could also be seen as partially overlapping, with the group of uses supervised by a doctor partially included within the set of uses authorized by the CSA but also partially independent, encompassing in addition a set of uses not authorized by the CSA. This reading strikes me as the most sensible.

Under this interpretation, “other” is not redundant. Instead, it accurately reflects the overlap. Were the “other” not there, the exception would have divided the relevant universe into two non-overlapping sets. Yet, in fact the CSA authorizes some (but not all) uses of “drugs taken under supervision of a licensed health care professional.” The “other” serves to signal that there is no strict dichotomy between the two phrases, as the bulk of the CSA-authorized uses are within the broader set covered by the first phrase. 1

b. The use of a comma

There is also a third clause, “or other provisions of Federal law.” The CSA is clearly a provision of Federal law, meaning that this second “other” is being used to indicate that “uses authorized by the [CSA]” is a subset of “provisions of Federal law.” The Cities argue that Congress used the first “other” in the same way, suggesting a kind of three-colored bull’s eye, in which use supervised by a doctor is a subset of use authorized by the CSA, which in turn is a subset of use authorized by Federal law.

This argument runs aground on the comma that separates the first and second clauses, as well as on the grammatical infelicity of the syntax the Cities’ interpretation posits. The disjunctive “or” separating those first two clauses after a comma suggests categories at least partially distinct, in contrast to the second use of “or,” which is not preceded by a comma. The Cities’ reading requires jumping over the comma, so that the phrase “authorized by the [CSA] or other provisions of Federal law” modifies “a drug taken under supervision by a licensed health care professional.” But in the English language, modifiers at the ends of phrases do not usually leapfrog over commas. See The Chicago Manual of Style § 6.31 (16th ed.2010) (“A dependent clause that follows a main clause should not be preceded by a comma if it is restrictive, that is, essential to the meaning of the main clause.”). And here, ignoring the comma and tacking the modifier onto the phrase before the comma yields an exceedingly awkward — indeed, incoherent — locution: “such term does not include the use of a drug taken under supervision by a licensed health care professional ... authorized by the [CSA]....”

More sensibly, the comma was added to reinforce the understanding that the first phrase is complete in itself, while “uses” other than those under medical supervision must be authorized by federal law. The comma therefore indicates that the set of uses described by the first clause is not entirely subsumed by the second clause, substituting for an implicit “if’ in the second clause expressing this lack of total overlap. The sentence thus excepts (1) all supervised uses and (2) other uses as well, if authorized by the CSA or other federal law.

This reading of the statute may not be compelled by the text, which remains a bit ambiguous. But it is, on balance, consid *839 erably more persuasive as a matter of grammar and syntax than the reading advanced by the Cities. It minimizes the redundancy problem, accords with the use of the word “other,” avoids an awkward syntax, and accounts for the presence of the comma before “other uses.”

2. Legislative History

James’ reading of the statute also accords much better with the overall thrust of the legislative history. That history, while not without ambiguity itself, strongly supports James’s interpretation.

a. Evolution of the exception

As the majority observes, Congress replaced a draft of the exception that required that use of drugs be “pursuant to a valid prescription,” S. 933, 101st Cong. § 512(b), with the broader language eventually enacted. The original language provided that “[t]he term ‘illegal drugs’ does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by the Controlled Substances Act or other provisions of Federal law,” S. 933, 101st Cong. § 512(b) (as passed by the Senate, Sept. 7, 1989) (emphasis added), while the currently in force revision, adopted by the House in May of 1990 and ultimately chosen over the Senate version in conference, H.R.Rep. No. 101-596, at 5 (1990) (Conf.Rep.), reprinted in 1990 U.S.C.C.A.N. 565 at 566, reads “[s]uch term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law.” 42 U.S.C. § 12210 (d)(l)(emphasis added).

Critically, the House Committee Report restates the exception, once amended, in precisely the cumulative manner I have suggested most accords with the statutory language: “The term ‘illegal use of drugs’ does not include the use of controlled substances, including experimental drugs, taken under the supervision of a licensed health care professional. It also does not include uses authorized by the [CSA] or other provisions of Federal law.” H.R.Rep. No. 101-485, pt. 3, at 75 (1990), 1990 U.S.C.C.A.N. 445 at 498. This summary is in no way ambiguous, and indicates at least that members of the House familiar with the statutory language understood it in the manner that, for reasons I have explained, most accords with ordinary principles of grammar and syntax. 2

*840 b. Congressional awareness of medical marijuana

The majority discounts any significance in the way the current language is described in the relevant Committee report, observing that California voters did not pass Prop. 215 until 1996 and that there were no state laws in 1990 allowing for professionally supervised use of drugs in a manner inconsistent with the CSA. Congress would not have carefully drafted the exception to include non-CSA authorized medically supervised uses, the majority posits, as no such uses were legal under state law at the time.

That explanation for dismissing the best reading of the statute and the only coherent reading of the Committee’s explanation of the statute won’t wash, for several reasons. First, while California in 1996 became the first of the sixteen states that currently legalize medical marijuana, the history of medical marijuana goes back much further, so that use for medical purposes was not unthinkable in 1990. At one time, “almost all States ... had exceptions making lawful, under specified conditions, possession of marihuana by ... persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person.” Leary v. United States, 395 U.S. 6, 17 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969). What’s more, the Federal government itself conducted an experimental medical marijuana program from 1978 to 1992, and it continues to provide marijuana to the surviving participants. See Conant v. Walters, 309 F.3d 629, 648 (9th Cir.2002). The existence of these programs indicates that medical marijuana was not a concept utterly foreign to Congress before 1996.

Second, a deeper look at the legislative history reveals that James’s interpretation may well reflect the particular problem Congress was addressing when it enacted § 12210. Originally, the provision that became § 12210 did not exclude users of illegal drugs from the definition of protected disabled individuals. During hearings before the Committee on Labor and Human Resources, Senator Harkin, the sponsor of the ADA, faced criticism that his bill would prevent employers from firing employees who were found to be under the influence of drugs while at work and was therefore inconsistent with the Drug-Free Workplace Act of 1988. 3 Americans with Disabilities Act of 1989: Hearing on S. 933 Before the S. Comm, on Labor and Human Resources, 101st Cong. 40 (1989).

In response, Senator Harkin pointed out that the provisions of the ADA were modeled after Section 504 of the Rehabilitation Act, and that his “intent was to incorporate the policies in Section 504 as interpreted by the Supreme Court and the Justice Department in a recent memo prepared by the Attorney General.” Id. That memorandum, which was inserted into the record, explained that, in the view of the Justice Department, “[a]ny legislation must make clear that the definition of ‘handicap’ does not include those who use illegal drugs.” Id. at 836. The memorandum went on to warn that

*841 [w]e ... do not wish to penalize those persons who, in limited cases, are using ‘controlled substances’ such as marijuana or morphine under the supervision of medical professionals as part of a course of treatment, including, for example, experimental treatment or to relieve the side-effects of chemotherapy. These persons would fall under the same category as those who are users of legal drugs.

Id. at 837-38. During the subsequent debates in the Senate, the amendment quoted above, which used the term “pursuant to a valid prescription” and lacked the crucial comma, was introduced by Senator Helms. 135 Cong. Rec. S10775 (Sept. 7, 1989). It was, as already explained, amended to include language closer to that used in the Justice Department Memorandum — “supervision of medical professionals.”

A memorandum from the Justice Department certainly doesn’t provide irrefutable proof of the correct interpretation of statutory text Congress had not yet adopted. But it does indicate that the issue of medical marijuana was at least on the federal government’s, and Congress’s, radar and not, as the majority would largely have it, an unforeseen revolution six years in the futxire.

Further, as noted, the wording of the exception was altered in the House from the version that had earlier passed the Senate. The majority focuses on the substantive change from “pursuant to a valid prescription” to “taken under supervision by a licensed health care professional,” noting that the CSA authorizes uses not pursuant to a prescription. But, for that very reason, there was no reason to change the wording of § 512(b) of the Senate bill; “other uses authorized by the [CSA]” were already, generically, covered. A more likely explanation, consistent with the House Committee Report, was the determination to define a set of uses covered by the exception whether or not “authorized by the [CSA],” a change carried out by the alteration in context, syntax, and punctuation — including the addition of the comma, otherwise inexplicable.

The upshot is that the statutory language and history, taken together, fit much better with James’s version of what Congress meant than the Cities’.

3. Conflict with the CSA

The majority, however, instead declares a near-draw, and then breaks it by concluding that the Cities’ “is the only interpretation that fully harmonizes the ADA and the CSA.” Maj. Op. at 833. Not only do I disagree with the notion that both interpretations of the statutory language and history are equally or almost equally viable, I also cannot buy the notion that judges may invent the manner in which the ADA and the CSA should be harmonized. As to users of illegal drugs, the statute directly addresses that question. One way or another, we must find the answer to that harmonization by interpreting the statute, not by applying our own notion of how the two statutes ought to interact.

Moreover, I also cannot agree that James’s reading of the exception creates a conflict between the ADA and the CSA so sharp as to provide useful guidance, from outside the terms of the ADA itself, as to the appropriate interaction of the two statutes. Nothing in the CSA addresses the civil rights of a disabled person using drugs for medical purposes, any more than anything in the CSA addresses whether such a person can recover in tort. Conversely, recognizing that individuals using CSA-covered drugs are not excluded from ADA coverage does not preclude prosecuting them under the CSA.

*842 An analogous line of cases is instructive in this regard: In resolving conflicts between arbitrators’ awards and notions of “public policy” gleaned from statutes, the Supreme Court has focused on direct and specific incompatibility, rather than on general notions concerning the underlying purpose of competing directives. United Paperworkers International Union v. Misco, 484 U.S. 29 , 108 S.Ct. 364 , 98 L.Ed.2d 286 (1987), and Eastern Associated Coal Corporation v. United Mine Workers, 531 U.S. 57 , 121 S.Ct. 462 , 148 L.Ed.2d 354 (2000), reviewed arbitration awards reinstating employees who had been discharged for marijuana use. The appropriate inquiry as to the validity of the arbitration awards, the Court noted, must be into “explicit conflict with other ‘laws and legal precedents’ rather than an assessment of ‘general considerations of supposed public interests.’ ” Misco, 484 U.S. at 43 , 108 S.Ct. 364 (quoting W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 , 103 S.Ct. 2177 , 76 L.Ed.2d 298 (1983)). Holding that no public policy against illegal drug use was sufficiently “explicit, well defined, and dominant,” United Mine Workers, 531 U.S. at 62 , 121 S.Ct. 462 , to require that individuals who illegally use marijuana may not be employed, the Court stressed the idea that “the question to be answered is not whether [the employee’s] drug use itself violates public policy, but whether the agreement to reinstate him does so.” Id. at 62-63 , 121 S.Ct. 462 ; see also Misco, 484 U.S. at 44 , 108 S.Ct. 364 ; Southern Cal. Gas Co. v. Util. Workers Union Local 132, 265 F.3d 787, 794-97 (9th Cir.2001).

Similarly here, there could be no square conflict between the CSA and the ADA were the ADA interpreted, as I suggest, to specify that a medical marijuana user could be a qualified person with a disability and so not entirely excluded from the ADA’s protection. The CSA does not make it illegal, for example, to employ a medical marijuana user or to provide such a user with schooling, unemployment benefits, or other non drug-related services. Interpreting the ADA to require, in some circumstances, such employment or schooling or benefits would not conflict with the CSA.

The California Supreme Court recently proceeded from a similar recognition as to the limits of the direct conflict concept, albeit to the opposite end. That Court held that the Compassionate Use Act did not dictate protection of medical marijuana users under the state’s version of the ADA. The state disability statute, unlike the federal ADA, does not address, one way or the other, whether medical marijuana users are entitled to the protections of the statute. Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 , 70 Cal.Rptr.3d 382 , 174 P.3d 200, 204 (2008), held that under those circumstances, the fact that use of medical marijuana is not a criminal offense in California does not necessarily speak to its status under an anti-discrimination law. For the same reason, I suggest, the opposite is also true: that use of medical marijuana is a criminal offense under the CSA does not speak to its pertinence as a disqualifying factor with regard to the civil protections otherwise accorded disabled individuals.

There is, in other words, no direct conflict between the ADA and the CSA if the ADA is interpreted as I propose. An imagined conflict or tension should not be dragged in, like a deus ex machina, to settle a difficult statutory interpretation problem.

It is worth observing, in addition, that if there were a direct conflict, it would be the ADA rather than the CSA that would prevail, as the ADA is the later-enacted statute. Repeals by implication are disfavored; every effort must therefore be made to make both statutes operative *843 within their realm, rather than declaring a clash. Watt v. Alaska, 451 U.S. 259, 267 , 101 S.Ct. 1673 , 68 L.Ed.2d 80 (1981). Avoiding a clash by having the later statute bow to the earlier one, when the two address different problems and so can coexist without difficulty, is not harmonization, but hegemony through prior enactment.

Nor am I dissuaded by the assertion that my interpretation of the statutory exception “would allow a doctor to recommend the use of any controlled substance — including cocaine or heroin.” Maj. Op. at 834. The ADA does not address the practice of medicine. Section 12210 only excepts use pursuant to supervision by a “licensed health care professional.” Nothing in California law, or, so far as I am aware, the law of any other state, permits doctors to encourage the use of heroin; a doctor who does so is unlikely to remain “licensed” for very long, and so the scenario is unlikely to occur. In contrast, California, which generally licenses medical professionals, does not penalize those who recommend medical marijuana, nor may the federal government do so, in many instances. See Conant, 309 F.3d at 639 .

At the same time, I am dubious that the exception upon which James relies can ultimately carry the day in this case. We are concerned here with the Cities’ effort to exclude medical marijuana dispensaries, not with a policy that prevents disabled individuals who use medical marijuana from, for example, attending school or obtaining unemployment benefits. The ADA’s definition of “individual with a disability,” excluding those who illegally “use” drugs, and its attendant definition of “illegal use of drugs,” are both phrased in terms of “use,” and do not address those who distribute or sell drugs.

The definition of “illegal use of drugs” applies equally to the ADA’s employment provisions. See 42 U.S.C. § 12111 (6). That exception, if read as I suggest, would preclude employers from refusing to hire otherwise qualified disabled individuals who use medical marijuana, as long as doing so did not interfere with their ability to carry out their duties safely. The legislative history quoted above suggests that Congress was particularly concerned with that group of individuals, recognizing that disabled individuals who follow their doctors’ advice for dealing with their disability should not be barred from the workplace simply for doing so. But there is no connection between having a disability and distributing or selling drugs, and no preclusion in the ADA of refusing to hire drug dealers of any stripe.

Moreover, in the absence of any statutory provision addressing ADA protection for drug dealers, the mode of analysis the majority inappropriately applies to interpreting § 12210 would have more force. That is, absent any statutory provision addressing the intersection of the two statutes, it would be proper to hold that employers may ban from employment, and public entities may refuse to harbor within their borders, drug dealers who violate the CSA, as Congress in no way indicated otherwise. That was the mode of analysis adopted by the California Supreme Court in Ross , and which I suggest would apply under the ADA to the question whether Title II requires the Cities to allow the distribution — as opposed to the use — of medical marijuana.

Deciding that question is, however, premature at this juncture. The only basis on which the preliminary injunction was denied was the district court’s conclusion that James was not within the group of disabled individuals protected by Title II of the ADA. For now, I would simply decide that question, holding that § 12210 does not exclude James and the other plaintiffs from the class of individuals pro *844 tected by the ADA, and remand for further proceedings.

4. Conclusion

While § 12210(d)(1) has a degree of ambiguity, it is most naturally read as carving out plaintiffs’ medical marijuana use, which is “under supervision by a licensed health care professional,” from the ADA’s “illegal use of drugs” exception. The legislative history provides further support for this interpretation. At the same time, it seems most likely that Congress did not intend the ADA to require the Cities to permit marijuana dispensaries, which remain illegal under the CSA, within their borders, as the ADA provision at issue here is directed at personal use rather than distribution. I therefore dissent with regard to Part I of the majority opinion, and would remand for ultimate consideration on the merits of whether James has alleged a viable cause of action with regard to the distribution of drugs that are illegal under the CSA. I concur in the remainder of the majority opinion.

. There is at least one CSA-authorized use that does not involve medical supervision. See 21 U.S.C. § 829 (c).

. This is not the place to enter into the contemporary debates about the usefulness of legislative history in general, and of committee reports in particular. Compare Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 , 125 S.Ct. 2611 , 162 L.Ed.2d 502 (2005) (Kennedy, J.) ("[J]udicial reliance on legislative materials like committee reports ... may give unrepresentative committee members — or, worse yet, unelected staffers and lobbyists — both the power and the incentive to attempt strategic manipulations of legislative history....”) with id. at 575-76 , 125 S.Ct. 2611 (Stevens, J., dissenting) (“[C]ommittee reports are normally considered the authoritative explication of a statute’s text and purposes----”) (citing Garcia v. United States, 469 U.S. 70, 76 , 105 S.Ct. 479 , 83 L.Ed.2d 472 (1984)). Current Supreme Court precedent does permit consideration of both where a statute is ambiguous, as it is here. See BedRoc Ltd. v. United States, 541 U.S. 176 , 187 n. 8, 124 S.Ct. 1587 , 158 L.Ed.2d 338 (2004). Moreover, statements made in the course of legislative consideration are most useful where, as here, they do not in terms declare any interpretive or application precept. Such self-conscious declarations are indeed subject to manipulation by interest groups and may represent a backdoor way to establish principles that would have failed if included directly in the statute. See Exxon Mobil, 545 U.S. at 568 , 125 S.Ct. 2611 . But statutory interpretation is aided rather than impeded by such clues as one can find in the legislative materials concerning how the legislators considering the bill were speaking *840 about the statute at hand. Ambiguous language can take on a more definite meaning in a particular milieu. As a result, that sensitivity to the use of language while the bill is being considered can illuminate apparent imprecisions in the later-enacted statute. Pursuit of such a clarification is, to my mind, the appropriate use of the bill sequence, hearings, and Committee report on which I here rely.

. The Drug-Free Workplace Act requires that government contractors ensure that their employees do not manufacture, distribute, dispense, possess, or use controlled substances at work. See 41 U.S.C. §§ 8101-8.106 .