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Opposing Parties in Agreement on Pot Case Before Calif. Supreme Court
The Recorder
November 03, 2009
Different varieties of marijuana sold at medical marijuana clubs
Image: Newscom
Students at the University of California, Berkeley, will get to see something rare when the California Supreme Court holds oral arguments on campus Tuesday -- a case in which the opposing parties pretty much agree on the issues.
How the seven justices react to that could be interesting, if not downright amusing. Maybe it should be called oral agreement, not argument.
In court documents, both Santa Clara University School of Law professor Gerald Uelmen, who represents the defendant, and Los Angeles-based Deputy Attorney General Michael Johnsen, representing the state, agree that legislators didn't have the power to amend Proposition 215 -- the voter-backed 1996 ballot measure that OK'd medical marijuana -- to set limits on the amount of pot "qualified patients" could possess.
But, they say, again in agreement, that doesn't invalidate the statute -- Health & Safety Code §11362.77 -- from establishing limits that could be set for individuals with valid identification cards immunizing them from arrest under the state's Medical Marijuana Program.
"We both want to preserve the registration card system," Uelmen said in a telephone interview Monday, "and I think we just have a slight disagreement about the most efficient way to do that. We're both urging the court in the same direction."
Uelmen, who has followed the high court for years and has argued before it in the past, said he doesn't recall a case in which there was such a lack of adversarial stances.
Johnsen didn't return a call seeking comment.
Patrick Kelly was arrested at his Los Angeles County home after officers found seven marijuana plants and 12 ounces of dried pot. He had a physician's recommendation, but was charged with cultivation of marijuana and possession for sale.
At trial, Kelly presented the medical-use defense allowed under the Compassionate Use Act, originally Prop 215 and now codified as Health & Safety Code §11362.5. But prosecutors argued that §11362.77 -- the program adopted by legislators in 2003 -- limited Kelly's defense under the CUA by capping the amount of pot that could be possessed to eight ounces of dried product and six immature or 12 mature plants.
Jurors found Kelly guilty of cultivation of marijuana and possession of less than 28.5 grams.
Los Angeles' Second District Court of Appeal overturned Kelly's conviction after holding that the state Legislature didn't have the authority to amend a voter-enacted ballot initiative. The quantity limits set by legislators were unconstitutional, the court held.
In court documents, the AG's office concedes the Second District was right, but said it went too far by completely eliminating the identification program.
"The very core of the MMP [Medical Marijuana Program] is the identification card program," Johnsen wrote. "And without possession limits, medical marijuana patients have little incentive to volunteer for the cardholder program, and law enforcement has no clear guidance in identifying legitimate medical marijuana users."
Uelmen agreed in his own papers, arguing that the Medical Marijuana Program created "an entirely new program of protection" for pot patients and, as applied in that context, didn't amend the Compassionate Use Act.
"There can be little doubt," he wrote, "that, despite the unconstitutionality of applying quantitative guidelines to all qualified patients, the application of these quantity guidelines to voluntary participants in the identification card system established by the MMP would fully accord with both the legislative intent and the intent of the governor."
The AG's office argued that the unconstitutional part of the amendment could be severed or judicially reformed by the Supreme Court to make it constitutional, thereby preserving the ID program and its limits on cultivation and possession.
Uelmen agreed. "Either course would implement the clear intention of the Legislature," he wrote.
People v. Kelly, S164830, is one of five cases the Supreme Court will hear Tuesday as part of a special outreach session at UC-Berkeley School of Law's Booth Auditorium at 2778 Bancroft Way. Special sessions in the past have been held in Anaheim, Fresno, Palm Desert, Redding, San Diego, San Jose, Santa Barbara and Santa Rosa.
