Metropolitan News-Enterprise


Friday, August 1, 2008


Page 3


C.A. Panels Affirm, Strike Provisions of Medical Marijuana Law


By SHERRI M. OKAMOTO, Staff Writer


The Legislature did not unconstitutionally amend the voter-approved initiative governing medical marijuana use when it enacted a law requiring identification cards, the Fourth District Court of Appeal ruled yesterday.

However, the Legislature did unconstitutionally amend the state’s Compassionate Use Act when it limited the amount of marijuana qualified users may possess, the Third District ruled in a separate case.

The Fourth District’s Div. One upheld the constitutionality of the Medical Marijuana Program Act’s identification card provisions, but the Third District held that the act unconstitutionally amended the voter-approved Compassionate Use Act by purporting to limit to a numerical quantity the amount of marijuana qualified persons may possess for medicinal use.

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, which included provisions establishing a voluntary program for the issuance of identity cards to medical marijuana users.

The Counties of San Diego and San Bernardino challenged the Medical Marijuana Program Act, contending that it was invalid under preemption principles, because it poses an obstacle to the congressional intent embodied in the federal Controlled Substances Act prohibiting marijuana possession or use for any purpose.

San Bernardino officials also contended that the identification card provisions of the Medical Marijuana Program Act were invalid under the California Constitution.

San Diego Superior Court Judge William R. Nevitt, Jr. determined that the Medical Marijuana Program Act neither conflicted nor posed an obstacle to federal law, and the Fourth District’s Div. One, in an opinion by Justice Alex C. McDonald, agreed.

McDonald reasoned that the counties had standing to challenge the provisions of the act which required them to process applications for, maintain records of, and issue cards to, those individuals entitled to use marijuana for medical purposes. However, he wrote, the purpose of the federal law was not to regulate a state’s medical practices.

He explained that the Medical Marijuana Program Act’s identification card law merely allows citizens to obtain a form of identification informing state law enforcement officers and others that they are medically exempted from the state’s criminal sanctions for marijuana possession and use.

Despite recognizing that California’s decision to enact statutory exemptions from state criminal prosecution for such persons arguably undermines the goals of or is inconsistent with federal law, McDonald concluded that any alleged “obstacle” to the federal law’s goals was presented by the law creating the exemptions, not the statutes creating a system for identifying exempt individuals.

Nothing that the federal law did not compel states to impose criminal penalties for marijuana possession, McDonald reasoned that the requirement that counties issue cards identifying the individuals whom the state has chosen not to prosecute did not conflict with federal law.

Further, because the Medical Marijuana Program Act only provided for the establishment of a method to identify medical marijuana users but did not impact the protections provided by the Compassionate Use Act, he concluded the more recent legislations did not unconstitutionally amend the prior act.

Justices Terry B. O’Rourke and Joan Irion joined McDonald in his opinion.

However, in a case before the Third District, Justice Ronald B. Robie concluded that the numerical limit provided by the Medical Marijuana Program Act unconstitutionally amended the Compassionate Use Act.

The Medical Marijuana Program Act limits the amount of marijuana a qualified patient can possess to “no more than eight ounces of dried marijuana” and “no more than six mature or 12 immature marijuana plants” if there is no doctor’s recommendation that these quantities are insufficient to meet the patient’s needs.

However, the Compassionate Use Act permits persons with qualifying conditions and doctor’s recommendations to possess as much marijuana as is necessary to meet their current medical needs.

The legislation limiting the amount of marijuana a qualified person may possess thus was an unconstitutional amendment, Robie wrote, reversing Chanh Phomphakdy’s conviction in Sacramento Superior Court for possession of marijuana.

Justices Fred K. Morrison and Tani Cantil-Sakauye joined Robie in his opinion.

The cases are County of San Diego v. San Diego NORML, 08 S.O.S. 4705, and People v. Phomphakdy, 08 S.O.S. 4696.


Copyright 2008, Metropolitan News Company