SUPREME COURT'S
PUZZLING,
IRRATIONAL KELLY DECISION
by Richard Johnson
On
January
22, the California Supreme Court published its 53-page definitive
ruling in the medical marijuana case of People v. Kelly. The decision
has been
widely described as lifting state limits on per patient plant
possession. But a
closer look reveals the learned justices rejected an appeals court
finding, and
left the language in the law intact, issuing a only a recommendation
that it
not "burden the defense" of those claiming a medical defense at
trial.
The
Compassionate
Use Act, passed by voter initiative in 1996, exempts medical
users of marijuana from state law sanctions for possession or
cultivation of
marijuana. Because the act was passed by initiative, it cannot be
amended by
the Legislature, but may only be amended with approval of voters.
In
2003,
the Legislature enacted the Medical Marijuana Program Act,, SB420, which included a voluntary
program for the issuance of identity cards to medical marijuana users,
and set
Limits below which card holders should not be arrested and defendants
could
claim protection of the CUA.
The
numerical
per patient possession or cultivation numerical Limits set in section
11362.77 of the MMP were 8 ounces and either 6 mature or 12 immature
plants
adjustable upwards by local communities and in individual cases by
medical
recommendation.
In
May of 2008, the Los Angeles area Court of Appeals declared
this
section of the
MMP unconstitutional because the CUA was passed by voters and the
MMP
was an
impermissible legislative amendment. Section 11362.82. of the MMP
contains a
severability clause and the Appelate Court said, "We therefore now hold
that section 11362.77 unconstitutionally amends the CUA, and it must be
severed
from the MMP.”
Just Over
the Limit
The
defendant
Patrick Kelly was busted in Los Angeles in 2005 as the result of a
tip from an informant with upwards of 7 plants and 12 ounces of dried
cannabis.
He was convicted after prosecutors repeatedly recited the MMP Limits to
the jury,
even though the jury was instructed he could have as much marijuana as
he
reasonably needed.
In
his
appeal, his attorney Gloria C. Cohen argued the limits approved by the
state Legislature unconstitutionally modified or amended Prop 215, the
Compassionate Use Act which had been passed by the state's voters in
1996. The
state constitution specifically prohibits legislative amendment of
voter passed
initiatives unless the original text of the initiative allows it.
A
few months later, attorney general Jerry Brown took exception and asked
the
Supreme Court to review the decision, which effectively suspended its
operation
until now. At that time, he argued that the limits were constitutional
because
law enforcement needed a "bright line" in order to guide them in
their decisions whether or not to apprehend, eradicate and prosecute.
Not
really a legal argument.
Alternatively,
he
asked it be depublished, a step which would have summarily killed the
appeals court decision without legal review. This writer wrote a brief
opposing
depublication which was accepted by the Supreme Court and my name is on
the
docket which is the list of actions in the case. The supremes agreed
with me
and declined to depublish and instead took it under review.
On
November
3, the Court heard an hour of oral argument at the Berkeley School of
Law, with Deputy California Attorney General Michael Johnsen for the
people,
and Santa Clara University law professor Gerald Uelmen representing
Kelly. By
then, the AG had changed his position from defending the limits on
constitutional grounds to admitting that in fact the limits are
unconstitutional.
Both counsels also agreed that
the
Appeals Court went too far in attempting to excize the entire Section
11362.77.
In
its
January
2010 decision, the Supreme Court found the limits
unconstitutional
and cannot be used to "burden the defense" of patients or caregivers
who want to claim the protections of the CUA even though they have more
than
those amounts.
This
means
that defendants will not be automatically convicted if they were caught
with over those amounts, but have the burden to prove the amounts
seized are
reasonably related to and possessed in a manner consistent with the
patient’s
current medical need. (People v. Trippet (1997) 56 Cal.App.4th 1532,
1551.)
Secondly,
the
Court said there was no basis for cutting the entire Section out of the
MMP
because the voluntary card program intended to shield patients and
caretakers
from arrest and eradication if they possessed less than those limits is
not an
amendment of the CUA, but a separate body of law which is based on it.
This
is
curious, because the voluntary card program is in a distinct section of
the
MMP, and would not be affected if 11362.77 were voided.
Impact on Measure B
In
December
2008, the local Superior Court lifted a temporary ban on enforcement
of the voter passed ordinance placed on the ballot by county
supervisors. The
June 2008 ordinance repealed Measure G of year 2000, (of which I was
the main
author) and affirmed the state's minimum per patient plant limits as
the choice
of Mendocino County under 11362.77's provisions for local choice.
Consequently,
all
during 2009 the legal per patient plant limits here has been 8 plus 6
or
12.
Because
the
County has no authority to enforce state law or exempt anyone from it,
the
sole authority for
Because
the
per patient plant limits have now been overturned by the Supreme Court
for
the purposes of criminal prosecution, it is clear that that section of
Measure
B is also invalid.
The
entire
California
Supreme Court decision is available online from
www.mendocinocountry.com later.
In
July
of 2008, I wrote an Answer to the Attorney General's request for
Supreme
Court review of the Kelly decision by the Second District California
Appeals
Court striking down the Limits.
I
asked the Justices to let the Kelly decision stand, and recommend to
the people
and the Legislature that the appropriate sections of the Health and
Safety code
be amended by new statutes regulating the cultivation, possession and
transportation of marijuana for personal use.
What
I
had in mind is that they declare section 11362.77 null and void.
Instead,
they ruled it should not burden a defense, but left the language in the
statute
intact for any other purpose, including qualification for the voluntary
ID card
program. This is irrational.
If
the
Limits are unconstitutional, they are unconstitutional for any purpose.
This
could
lead to an undermining of the intent of the decision because
prosecutors
may still be inclined to use the Limits to convict, anyway.
This
is
because the Limits were used in other secttions of the MMP, Specifically section 11362.765 of the MMP
provides:exemptions from Section 11357, 11358, 11359, 11360, 11366,
11366.5, or
11570, the Prohibition Statutes providing criminal penalties for
marijuana
cultivation, possession, sale, transportation, possession for sale,
distribution..
Section
11362.765.
provides a categorical exemption from these statutes for persons
possessing or transporting marijuana for personal medical use or
designated
primary caregivers in quantities not exceeding the MMP Limits.
By
implication,
then, primary caregivers transporting, processing, administering,
or giving away marijuana for medical use in excess of the MMP Limits
for just
one of their patients is subject to criminal liability
Over
the
years, prosecutors have argued that a medical defense was not available
to
those holding marijuana in amounts over the Limits. There is even a
jury
instruction - CALJIC 12.24.1 -
which states that the jury may find the defendant not guilty if he
possesses
under the limits.
But
just
as section 11362.77 modifies the CUA by imposing limits, so does
11362.765(b)(2) and thus also unconstitutional.
But
the
recent Supreme Court did not address that point, leaving the entire
language of the MMP unchanged.
And
it
is
unneccesary because the voluntary ID card program is set forth in an
entirely differrent section, namely 11362.71.
Numerous writers have pointed out
that while
alcohol and tobacco are more addictive and harmful than marijuana, they
are
decriminalized, regulated and taxed. The legislature has failed to take
those
steps with marijuana due to opposition from powerful interests,
including
"law enforcement," the constituency named at the outset of the
People's Petition as the interested party in the constitutionality of
section
11362.77.
The
voters
of California approved Proposition 215 in an era when medical marijuana
was an artifact, and recreational use of marijuana was widespread.
Today,
thanks
to the Compassionate Use Act, medical marijuana is one of the most
lucrative industries in the state, while recreational use among the
"Baby
Boom" generation has declined.
While
the
stated intent of the CUA is to alleviate suffering, most importantly
for
the terminally ill, chemotherapy
patients, or people in chronic pain, the number of marijuana growers
far
outnumber the number of patients in rural Mendocino County, leading
inescapably
to the conclusion that it is in major part a cover for commercial
production
for non-medical purposes.
As
the
Compassionate Use Act attempts to strike a balance between the historic
practice of cannabis prohibition on the one hand and the apparent value
of
marijuana as medicine in some cases on the other, it has in practice
granted a
state sanctioned monopoly on an unlimited class of individuals to
cultivate and
distribute a banned substance of ever widening popularity with
virtually no
taxation or regulation of any kind.
Thus
it
defies the law of supply and demand. The risk of arrest and forfeiture
make
marijuana expensive, while the virtual absence of taxation and
regulation as
well as the relative ease of entering the industry make it prolific.
While
medical
marijuana was promoted by its advocates as a balm for the afflicted and
the salvation of the suffering, it has in Mendocino County become one
of the
most significant industries and widely acknowledged as undergirding the
local
economy, providing lucrative employment for working people impacted by
the
collapse of logging and fishing over the last decades.
Indeed,
abuses
of civil polity and environmental regulations by "out of control,
in your face commercial marijuana cultivators" was motive for recent
passage of a ballot initiative (Mendocino
County Measure B, June, 2008) in part rolling back "local guidelines"
of up to 25 mature plants to those spelled out in section 11362.77.
There
is
every reason to believe such abuses abound throughout the state, in
urban as
well as rural areas with the advent and growth of indoor hydroponic
production
favored by medical marijuana dispensaries.
In
addition,
marijuana farms are frequently sites of fires and targets of violent
assaults by competing producers, unhappy clients, and disgruntled
distributors,
or simply by thieves of opportunity.
As
production
continues to grow exponentially, so too do the antisocial impacts.
Decriminalization is
the
Solution
The
War
on Marijuana has outlasted the Second World War, the Korean War,
Communism,
the Missile Race and the War in Vietnam. It has outlasted alcohol
prohibition,
the slide rule, the typewriter and social acceptance of public tobacco
smoking.
No
one
can
claim that marijuana prohibition has succeeded in limiting the
supply,
or in reducing the antisocial impacts of commercial marijuana
production. It
has, however, created a powerful interest group in law enforcement,
prison
administration, criminal defense representation, drug rehabilitation,
treatment
and counseling. This is another marijuana related industry in
California with
staggering budgets and massive employment impact, one with a
substantial
financial stake in the reversal of Kelly.
Such
a
reversal would be a step backwards in the development of social
progress
under law, however.
The
Second
District
Appeals Court opinion in Kelly reminds the California
legislature that amendment of the Compassionate Use Act is not only
unconstitutional, it is insufficient to bring reason and law to the
subject of
marijuana regulation.
In
the
light
of Kelly, the numerical upper limits on medical marijuana
cultivation
and possession no longer exist. What takes their place is the standard
in
People v. Trippet, (1997) 56 Cal.App4th 1549: "the quantity possessed
by
the patient, or the primary caregiver, and the form and manner in which
it is
possessed, should be reasonably related to the patient's current medial
needs."
I
argued that the Supreme Court should uphold the Appeals Court opinion
in People
v. Kelly and recommed that the California Legislature modify the Health
and
Safety Codes prohibiting marijuana to allow any adult person to
cultivate,
possess and transport marijuana for any personal use, thereby excluding
possession for sale, furnishing to others, etc.
As
to
the quantity, it could be the Trippet Standard, that is "the quantity
possessed by the person, and the form and manner in which it is
possessed,
should be reasonably related to the person's current needs."
IN
THAT
CASE,
there would be no need for H&S Code Section 11362.77 or its
limits.
The
Medical
Marijuana Program, the collective growing, the identification card
program could continue to operate. The Compassionate Use Act would
still be
available as an affirmative defense. But the price of marijuana would
go down. Less would need to be spent on
marijuana
enforcement, and. there would be no need for sick people like Mr. Kelly
to fear
going to prison for growing a few pot plants in their back yard to
alleviate
pain and forstall nausea.