                                                                                     August 3 2012


                                      DA 11-0120

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2012 MT 165



CITY OF DEER LODGE ex rel., THE MATTER OF CITY OF
DEER LODGE ORDINANCES 130 and 136:

SHERMAN ANDERSON and BONNIE ANDERSON, JOHN
MOLENDYKE and CHARLOTTE MOLENDYKE, JASON
JONES and QUINN JONES, MARK HATHAWAY and MARY
HATHAWAY, EMERY D. WESTON, DALLIS HUNTER and
MAGGIE HUNTER, THE REVEREND DAVID BAKER and
JANA BAKER, CHARLIE SEDMINIK and NANCY SEDMINIK,
STANLEY C. SWORDER, DR. DUSTIN RUBINK and KELLY
RUBINK, MICHAEL NASEATH and CAMELLIA NASEATH,
DR. DOUGLAS McLAWS and TIFFANY McLAWS, BRANT
PIERSON and HEIDI PIERSON, and JOHN COUTU and
CLEO COUTU,

         Plaintiffs and Appellants,

    v.

GARY W. CHILCOTT, BRIAN CHILCOTT,
TALYN LANG, ZOO MOUNTAIN NATURAL
CARE, INC., and CITY OF DEER LODGE,

         Defendants and Appellees.



APPEAL FROM:      District Court of the Third Judicial District,
                  In and For the County of Powell, Cause No. DV 10-51
                  Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                  Douglas D. Harris, Douglas Harris Law Offices, Missoula, Montana

           For Appellees:

                  Michael Kauffman, Curt Drake, Drake Law Firm, P.C., Helena, Montana
                  Gregory C. Black, Corette, Pohlman & Kebe, Butte, Montana
                                  Submitted on Briefs: May 9, 2012

                                            Decided: August 3, 2012




Filed:

         __________________________________________
                           Clerk




                             2
Justice Brian Morris delivered the Opinion of the Court.

¶1     Sherman Anderson and other concerned residents of the City of Deer Lodge

(hereinafter “Anderson”) appeal an order of the Third Judicial District Court, Powell County,

denying their petition for a writ of mandamus. We affirm.

¶2     Anderson raises the following issue:

¶3     Did the District Court properly conclude that the City of Deer Lodge lacked a clear

legal duty to revoke Zoo Mountain Natural Care, Inc.’s business license?

¶4     Zoo Mountain Natural Care, Inc. (Zoo Mountain) formed as a Montana corporation in

January 2010. Zoo Mountain formed for the business purposes of lawfully growing and

selling medical marijuana in accordance with the 2009 version of the Medical Marijuana Act

(MMA).

¶5     Gary Chilcott, president of Zoo Mountain, purchased a property located in Deer

Lodge, Montana, on March 23, 2010, on behalf of the company. Zoo Mountain began

moving marijuana plants into the property on April 3, 2010. It also brought over 300

registered medical marijuana patient cards onto the property in early April.

¶6     Zoo Mountain contacted the City of Deer Lodge (City) in March 2010, shortly before

the move, to obtain a business license. The City was not issuing business licenses when this

move occurred, however, due to a change from a calendar-year licensing system to a fiscal-

year licensing system. The City previously had determined that it would waive the business

license requirement for new applicants during this transition period. The City had decided it

would resume issuing licenses on July 1, 2010. The City accordingly allowed Zoo Mountain

                                              3
to operate lawfully without a business license until July 2010.

¶7     The City Council convened shortly after Zoo Mountain’s move to Deer Lodge.

Anderson expressed concern over Zoo Mountain’s location at this meeting. He specifically

disliked the fact that Zoo Mountain was located in a residential neighborhood, and that Zoo

Mountain was located near the Church of Jesus Christ of Latter Day Saints.

¶8     The Council responded by enacting Emergency Ordinance 130 on April 9, 2010. This

law banned the development of new commercial medical marijuana activity within 1,000 feet

of any school, daycare, church, park, baseball field or youth recreational facility. Ordinance

130, an emergency ordinance, only governed for 90 days after its enactment. The City

enacted a permanent ordinance, Ordinance 136, on July 6, 2010. Ordinance 136 largely

mirrors Ordinance 130.

¶9     Meanwhile, the City issued a business license to Zoo Mountain effective July 1, 2010.

The application defined the license holder as “Zoo Mountain Natural Care.” The application

described Zoo Mountain’s operation as an “agricultural warehouse.” The city clerk who

received the application expressed uncertainty whether to issue the license. The city clerk

conferred with Mayor Mary Fraley, who in turn consulted City Attorney Tiffany Heaton.

Mayor Fraley ultimately instructed the clerk to issue Zoo Mountain a business license for

unspecified reasons after discussing the matter with Heaton.

¶10    Anderson believed that the City’s decision to issue the business license violated

Ordinances 130 and 136. Anderson further believed that the City violated the 2009 version

of the MMA when it issued the business license to a corporation, rather than to an individual.

                                              4
Anderson sought a writ of mandamus from the District Court to require the City to revoke

Zoo Mountain’s business license.

¶11     The court declined to issue the writ. It concluded that the MMA provided no clear

legal duty for the City to revoke the business license. It similarly concluded that the City

Code, particularly Ordinances 130 and 136, contained no clear legal duty to revoke the

business license. Anderson appeals.

                                STANDARD OF REVIEW

¶12     A district court’s decision to issue or deny a writ of mandamus presents a conclusion

of law. Bostwick Props. v. Mont. Dep’t of Natural Res. & Conserv., 2009 MT 181, ¶ 15, 351

Mont. 26, 208 P.3d 868. We accordingly review the decision for correctness. Bostwick,

¶ 15.

                                           DISCUSSION

¶13     Did the District Court properly conclude that the City of Deer Lodge lacked a clear

legal duty to revoke Zoo Mountain’s business license?

¶14     A writ of mandamus “is an extraordinary remedy” to be granted only in “rare cases.”

State ex rel Chisolm v. District Court, 224 Mont. 441, 442, 731 P.2d 324, 324-25 (1986). A

party who seeks a writ of mandamus accordingly possesses a “heavy burden.” State v. Bd. of

Cty. Commrs., 181 Mont. 177, 179, 592 P.2d 945, 946 (1979). The party first must establish

that he is entitled to performance of a clear legal duty by the party against whom it seeks the

writ. Section 27-26-102(1), MCA. The party who seeks the writ also must establish that no

speedy and adequate remedy exists in the ordinary course of law. Section 27-26-102(2),

                                              5
MCA.

¶15    The District Court centered its analysis on the lack of a clear legal duty for the City to

revoke Zoo Mountain’s business license. The parties similarly focus their analysis on this

requirement. We accordingly limit our inquiry to whether the City possessed a clear legal

duty to revoke Zoo Mountain’s business license.

¶16    A clear legal duty involves a ministerial act. Beasley v. Flathead Cty. Bd. of

Adjustments, 2009 MT 120, ¶ 16, 350 Mont. 171, 205 P.3d 812. A clear legal duty exists,

therefore, only when the law defines the duty with “such precision and certainty as to leave

nothing to the exercise of discretion and judgment.” Beasley, ¶ 17. Anderson presents three

arguments to support his position that the City possessed such a clear legal duty to revoke

Zoo Mountain’s business license.

¶17    He first contends that Zoo Mountain, as a corporation, cannot qualify as an authorized

caregiver under the MMA, and the City accordingly issued a license to an unlawful business.

Anderson next contends that Zoo Mountain’s license application contained misleading

information that warrants automatic revocation pursuant to City Ordinance. Anderson

finally contends that Ordinances 130 and 136 imposed on the City a clear legal duty to

revoke the license.

¶18    We first note that any legal duty imposed by the 2009 MMA has been rendered moot

by subsequent amendments by the legislature. The District Court relied on the MMA’s 2009

version when it denied the writ. The legislature repealed the 2009 version shortly after the

District Court’s decision, but before Anderson had filed his opening brief on appeal. The

                                               6
legislature replaced this version with the much more restrictive 2011 version of the MMA.

Mont. Sen. 423, 62nd Biennial Sess. (Mar. 23, 2011).

¶19    Anderson contends that the legislature’s action in 2011 does not render moot his

argument that the City possessed a clear legal duty under the 2009 version of the MMA. He

argues that the dispute remains capable of adjudication because the legislature’s action

constitutes only a non-substantial, amendatory change rather than a wholesale change to the

statutes upon which he relies. Plains Grains Ltd. Partnership v. Bd. of Cty. Commrs., 2010

MT 155, ¶¶ 26-28, 357 Mont. 61, 238 P.3d 332. He argues that the 2011 version of the

MMA remains largely unchanged with respect to the inability of a corporation to qualify as a

caregiver.

¶20    No question exists that the 2011 version of the MMA constitutes a wholesale change

to the statutory scheme even if the current version retains holdover provisions from the

previous version. See §§ 50-46-101, et seq., MCA (2009) (repealed); compare §§ 50-46-

301, et. seq., MCA. Anderson requests that we look in isolation to the statutes upon which

he relies despite this wholesale change. Anderson cites amendments to § 50-46-302(10)(a),

§ 50-46-307(1)(i), § 50-46-303(b), § 50-46-303(2), and § 50-46-308(a), MCA. Anderson’s

analysis contends that only a natural person, and not a corporation such as Zoo Mountain,

may constitute a caregiver. Anderson points to no single statute, however, that expresses this

restriction. Anderson instead relies upon his interpretation of the entire statutory scheme to

reach his conclusion that a corporation cannot qualify as a caregiver under the MMA.

¶21    Anderson’s argument, in effect, requires us to look at the entirety of the statutory

                                              7
scheme to interpret the MMA. We simply cannot engage in this type of interpretation,

however, when the legislature has changed so drastically the statutory scheme since the

District Court’s decision. See §§ 50-46-101, et seq., MCA (2009) (repealed); compare

§§ 50-46-301, et. seq., MCA. For example, the concept of a “caregiver” no longer exists

under the MMA. The MMA now recognizes only “providers.” Section 50-46-302(10)(a),

MCA. Similarly, the 2011 version now prohibits entities like Zoo Mountain from receiving

remuneration for their services. Section 50-46-308(6)(a), MCA. This restriction effectively

eliminates any commercial or business aspect to the providing of medical marijuana. These

wholesale modifications to the MMA eliminate our ability to grant effective relief under

these circumstances.      Country Highlands Homeowners Assn. v. Bd. of County

Commrs., 2008 MT 286, ¶ 23, 345 Mont. 379, 191 P.3d 424. The legislature’s action in

enacting these wholesale amendments to the MMA renders this question moot.

¶22    We further determine that no clear duty exists through the City Ordinances. A writ of

mandamus “will not lie to correct or undo an action already taken. An action already done

cannot be undone by mandamus.” Beasley, ¶ 15. It accordingly proves insufficient for

Anderson to establish that the City incorrectly issued the license. Anderson instead must

establish that the City possesses some clear legal duty under the City Code to revoke the

business license.

¶23    Anderson notes that the City Code requires that “any license containing misleading

information shall be automatically revoked.” Deer Lodge City Code 5.02.070. Anderson

contends that Zoo Mountain included inaccurate information in its application for a business

                                             8
license. As a result, Anderson argues this ordinance places a clear legal duty on the City to

revoke the business license.

¶24    Deer Lodge City Code 5.02.070 does not govern the misleading information in a

license application. The ordinance’s language applies only to misleading information

contained in the actual license itself. Anderson fails to cite any misleading information

contained within the business license issued to Zoo Mountain. This inability to point to

misleading information in Zoo Mountain’s business license leaves Anderson with no

recourse under Deer Lodge City Code 5.02.070.

¶25    Anderson further contends that the City possessed a clear legal duty to revoke the

license through Ordinances 130 and 136. Anderson fails to note, however, that neither

ordinance contains a provision that would require the City to revoke a business license

already issued to an applicant. These ordinances instead provide only where, and how, a

medical marijuana business may operate in Deer Lodge.

¶26    Indeed, whether Zoo Mountain violated these ordinances—and should have its license

revoked for the violation—rested within the City’s sole discretion. The code provides that

“[w]henever in the judgment of the city, the licensee under this chapter is conducting the

licensed business in a manner that violates any ordinances, or regulations of the city, or in

any manner detrimental to the public health, morals, or welfare, the city may suspend such

license by notice to that effect. . . . .” Deer Lodge City Code 5.02.070(5)(A) (emphasis

added). Thus, whether Zoo Mountain violated these Ordinances and should have its license

accordingly revoked presents a matter of discretion for the City to determine in its

                                             9
“judgment.”     The authority bestowed upon the City by Deer Lodge City Code

5.02.070(5)(A) to exercise its “judgment” to revoke an existing business license cannot be

deemed a ministerial act. Beasley, ¶ 17. A writ of mandamus provides no avenue for relief

under these circumstances. See Jefferson County v. Dep't of Envtl. Quality, 2011 MT 265, ¶

26, 362 Mont. 311, 264 P.3d 715.

¶27    Anderson has failed to establish any clear legal duty that requires the City to revoke

Zoo Mountain’s business license. The District Court acted accordingly in denying the writ

of mandamus.

¶28    Affirmed.

                                                                 /S/ BRIAN MORRIS


We Concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




Justice James C. Nelson, concurring.

¶29    I join the Court’s Opinion. With respect to Anderson’s arguments under the MMA,

however, I also note my special concurrence in Med. Marijuana Growers Assn. v. Corrigan,

2012 MT 146, ___ Mont. ___, ___ P.3d ___. Because state medical marijuana laws seek to

legalize conduct that is violative of federal law, see 21 U.S.C. § 801 et seq., and because the

Supremacy Clause of the United States Constitution renders contrary state laws such as
                                              10
Montana’s various medical marijuana acts unenforceable, see U.S. Const. art. VI, cl. 2,1 the

courts of Montana should not be required to devote any more time trying to interpret and

finesse these state laws.    Med. Marijuana Growers Assn., ¶¶ 34-37, 39 (Nelson, J.,

concurring).

¶30    With these observations, I concur in the Court’s decision.



                                                  /S/ JAMES C. NELSON




Justice Jim Rice, concurring.

¶31    I concur in the Court’s decision and write to address a portion of the District Court’s

analysis. In denying relief, the District Court noted that the City’s approach was to restrict

new marijuana businesses but permit pre-existing businesses, and stated:

       That policy coincides with an approach virtually everyone learned as a child
       and which has a long history in the law. That general rule could be
       paraphrased as follows: “It’s not fair to prohibit today that which was
       permissible yesterday without allowing to continue that which was permissible
       yesterday.” Thus, important facts in this case are those which demonstrate


        1 See also Gonzales v. Raich, 545 U.S. 1, 29, 125 S. Ct. 2195, 2212 (2005)
(“[L]imiting the activity to marijuana possession and cultivation ‘in accordance with state
law’ cannot serve to place respondents’ activities beyond congressional reach. The
Supremacy Clause unambiguously provides that if there is any conflict between federal and
state law, federal law shall prevail.”); Arizona v. United States, ___ U.S. ___, 132 S. Ct.
2492, 2500-01 (2012) (“From the existence of two sovereigns follows the possibility that
laws can be in conflict or at cross-purposes. . . . [Under the Supremacy Clause, state law
must give way to federal law under certain circumstances, including] cases where
compliance with both federal and state regulations is a physical impossibility.” (internal
quotation marks omitted)).
                                              11
       that Respondents were engaged in permissible conduct before the prohibition
       was put into place and that there was no expansion. The analysis need not
       continue after that conclusion.

If this were the extent of the District Court’s rationale, consideration of reversal would be

necessary because the failure to “grandfather” existing businesses does not necessarily render

new zoning impermissible. This might not be fair in the opinion of some, but it is the law.

Municipalities regularly enact new zoning ordinances that may require pre-existing

businesses to relocate. See TJS of New York, Inc. v. Town of Smithtown, 598 F.3d 17 (2d Cir.

2010). Thus, the legal analysis must continue beyond this conclusion.

¶32    The bigger problem in this case is its unusual posture. Typically, a municipality is

seeking to enforce its ordinance, and the defending business challenges the validity of the

ordinance, as in TJS of New York. Here, citizens are seeking to force the municipality to act,

which, as the Court notes, is primarily a matter of the City’s discretion. Opinion, ¶ 25. It is

therefore not susceptible to mandamus.



                                                          /S/ JIM RICE




                                              12
