Health and Safety Code section 11362.77,
In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (§ 11362.5,
Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient's "personal medical purposes." (§ 11362.5, subd. (d), italics added.) An early decision construed this provision of the CUA as establishing "that 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 medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549 [66 Cal.Rptr.2d 559], italics added (Trippet).)
Despite—or, perhaps, because of—this judicial construction of the CUA, questions persisted for both qualified medical marijuana patients and for law enforcement officers relating to enforcement of and arrest for possession,
Although the MMP did not literally amend the statute that established the CUA (that is, § 11362.5), the MMP did add 18 new code sections that address the general subject matter covered by the CUA. At the heart of the MMP is a voluntary "identification card" scheme that, unlike the CUA—which, as noted, provides only an affirmative defense to a charge of possession or cultivation—provides protection against arrest for those and related crimes. Under the MMP, a person who suffers from a "serious medical condition,"
The "amount established pursuant to this article" is addressed in section 11362.77, the statute at issue in this case. That section does two things: (1) it establishes quantity limitations, and (2) it sets forth a "safe harbor" by authorizing possession of specific amounts of medical marijuana within those specific limits.
The MMP's safe harbor provision, subdivision (f) of section 11362.77, authorizes possession of certain amounts of medical marijuana. It provides that a "qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article [that is, as provided in subds. (a)-(c) of § 11362.77]." By its terms, this safe harbor provision, which is not directly implicated on the facts of this case, would apply not only to those who hold MMP identification cards, but also to qualified patients or their primary caregivers—those persons who are entitled to the
As alluded to above and further explained below, subdivision (a) of section 11362.77, by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity "consistent with the patient's needs" that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends—a qualification not found in the CUA.
Defendant Patrick K. Kelly has long suffered from, among other ailments, hepatitis C, back problems (including ruptured disks), a fused neck, nausea, fatigue, cirrhosis, loss of appetite, and depression. Over the course of 10 years, defendant attempted to treat the pain caused by these conditions with multiple epidurals, pain therapy, nerve stimulators, and various medications— some of which were very costly, exceeding his monthly income. Dissatisfied with this treatment plan, defendant decided to seek a recommendation to use marijuana as permitted by the CUA.
Because defendant was unable to afford marijuana from a dispensary, he began to grow it at home for his personal use. Defendant consumes approximately one to two ounces of marijuana each week by smoking it, using it in a vaporizer, and consuming it in brownies. He testified that the marijuana lessens his nausea, but that its effectiveness has decreased over time.
Dr. Elting's original written recommendation for medical use of marijuana was found in the master bedroom, and a copy was found taped to a wall of the garage. A deputy called the phone number on the recommendation and was told that defendant had a "prescription" to use marijuana. Defendant was arrested and charged with possessing marijuana for sale (§ 11359) and cultivating marijuana (§ 11358).
Prior to trial, defendant moved to bar the prosecution from eliciting testimony concerning the quantity limitations set out in section 11362.77, on the ground that the statute, in that regard, constitutes an impermissible amendment of the CUA. After an extensive hearing the trial court denied the motion. The court explained that it would instruct the jury pursuant to CALCRIM No. 2370, which, as the court observed, "doesn't mention [specific] amounts," and provides instead that the amount possessed or cultivated
At the subsequent jury trial, Deputy Bartman testified that, in his opinion, the marijuana recovered from defendant's home was possessed for sale. Bartman explained that he reached this conclusion despite the circumstance that most of the dried marijuana found at defendant's home was vacuum packed in relatively large quantities of approximately one to two ounces, instead of the one-ounce and much smaller nickel and dime bags typically used in sales. The deputy surmised that defendant had packaged the marijuana in larger quantities in order to supply other sellers, who in turn would repackage smaller amounts of the product into smaller containers. On earlier cross-examination, however, it was revealed that Deputy Bartman had minimal experience concerning marijuana used for medicinal purposes.
Defendant testified concerning his medical ailments and treatment efforts. He also explained that he used the scale that was found in his bedroom to ensure that he never took more than one ounce of marijuana with him when he traveled, because, although he knew he was permitted to possess medical marijuana, he did not "know what the law is on carrying it," and he also understood that as a general matter "over an ounce is a felony."
Christopher Conrad testified as a medical marijuana expert for the defense. Conrad explained that storing marijuana in vacuum-packed baggies is consistent with medicinal use, and that the total amount found (slightly more than 12 ounces of "dried mature processed flowers") also was consistent with personal use. Conrad observed that, assuming defendant consumed the marijuana found in his home at a rate of two ounces a week, the supply would last
On cross-examination of both Conrad and Dr. Elting, the prosecutor, consistently with the trial court's rulings, emphasized that section 11362.77 provides that a person may possess no more than eight ounces of dried marijuana unless the person has a medical recommendation to exceed that amount, and he elicited the agreement of these witnesses with his reading of the statute. This in turn prompted the trial court to instruct the jury spontaneously, near the conclusion of the cross-examination of Conrad: "[J]ust so the jury knows, because they're the ones that have to decide this case. This statute, basically, says you can have eight ounces of dried marijuana. But it also says later on that if . . . a city or a county says you could have more, then they could pass some law that says you can have more. That's basically what it says." Immediately thereafter, the prosecutor elicited testimony from Conrad establishing that, as far as the witness knew, the County of Los Angeles had not passed any law to "expand the eight ounce limitation."
Subsequently, the jury was given an instruction modeled on CALCRIM No. 2370, which, consistently with the CUA, explained that defendant was permitted to possess or cultivate an amount of marijuana reasonably related to his current medical needs.
Thereafter, however—and again, consistently with the trial court's denial of defendant's motion to exclude evidence of statutory quantity limitations, and with the court's spontaneous comment to the jury during the cross-examination of Conrad—the prosecutor in argument to the jury repeatedly stressed that defendant lacked a physician's recommendation to possess more than eight ounces of dried marijuana. The opening three paragraphs of the prosecutor's summation were as follows: "This is, ladies and gentlemen, the final leg of the trial. The law is pretty simple in this case. Whether or not you
After further arguing that, in his view, the evidence demonstrated that defendant was both using marijuana and selling it, the prosecutor continued: "If, for example, you decide, well you know what? I don't think he intend[ed] to possess for sale. But, you know what? What he can possess is only eight ounces. Remember, ladies and gentlemen. So, the excess that he possess[ed], the other four ounces you can consider that in the possession charge. . . ."
Thereafter, defense counsel's closing argument urged the jury to determine that defendant neither sold marijuana nor intended to do so, and that the amount possessed and cultivated by defendant was reasonable for his personal medical use and hence was protected by the CUA. In response, the prosecutor, in his final summation to the jury, argued that defense counsel was "asking you to be legislators" and "interpreters of the law," but "[t]hat's not your job here, ladies and gentlemen. Your job is to follow the law. And the law says, whether we agree with it or not, the law says very clearly in black and white, Health and Safety Code section 11362.77[, subdivision] (a), I'm going to read it to you right now. `A qualified patient'[—]we're not disputing that he's a qualified patient[—]`or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature plants per qualified patient.'" The prosecutor also read to the jury section 11362.77, subdivision (b): "`If a qualified patient or primary caregiver has a doctor's recommendation that [t]his quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.'"
The prosecutor asserted: "What does that mean? He can have eight ounces of the dried stuff. We know he has 12 at least, he can have eight ounces of the stuff or [sic: and] he can have six immature [sic: mature] plants. Evidence
The jury deliberated for approximately 90 minutes and found defendant guilty of "possessing more than 28.5 grams [one ounce] of marijuana (§ 11357, subd. (c))"—a lesser offense of the charged count of possessing marijuana for sale (§ 11359). The jury also found defendant guilty as charged of cultivating marijuana (§ 11358). The trial court placed defendant on three years' probation under various terms and conditions, including that he serve two days in jail, less credit for two days already served.
The Court of Appeal held, first, that section 11362.77 of the MMP, insofar as it limits the amount of medical marijuana that a person protected by the CUA may possess, constitutes an amendment of the CUA in violation of California Constitution, article II, section 10, subdivision (c), which precludes legislative amendment of an initiative measure unless the measure explicitly permits such an amendment.
Third and finally, addressing an issue concerning which we did not grant review, the Court of Appeal determined that although the trial court properly instructed the jury under the CUA that defendant could possess an amount of marijuana reasonably related to his current medical needs, the court improperly permitted the prosecutor to elicit testimony indicating that the quantity limitations set out in section 11362.77 applied to defendant and to his defense under the CUA—and to extensively so argue to the jury. In other words, the Court of Appeal concluded that the jury was informed, in essence, that the quantity limitations set out in section 11362.77 overrode the CUA's guarantee (confirmed in Trippet, supra, 56 Cal.App.4th at p. 1549) that a qualified patient is permitted to possess and cultivate any amount reasonably necessary
As explained in part IV below, we agree with the Court of Appeal's first determination—that section 11362.77 is unconstitutional insofar as it burdens a defense, provided by the CUA, to charges of possessing or cultivating marijuana. But, as explained in part V below, we disagree with the Court of Appeal's second conclusion—that section 11362.77 is wholly invalid, and that it "must be severed from the MMP."
We first address the Court of Appeal's conclusion that section 11362.77 of the MMP, insofar as that statute establishes quantity limitations, constitutes an amendment of the CUA, in violation of California Constitution, article II, section 10, subdivision (c). That provision (quoted in full, ante, fn. 15) states in relevant part: "The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."
At the same time, despite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have observed that this body is not thereby precluded from enacting laws addressing the general subject matter of an initiative. The Legislature remains free to address a "`related but distinct area'" (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830 [81 Cal.Rptr.3d 461] (San Diego NORML); see also Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43 [41 Cal.Rptr.2d 393] (Mobilepark West Homeowners Assn.) [construing the related initiative power of city voters under Cal. Const., art. II, § 11, and Elec. Code, § 9217]) or a matter that an initiative measure
Applying this definition and related formulations (see ante, fn. 18), courts have determined that certain statutes constitute impermissible amendments of initiative measures. (See Proposition 103 Enforcement Project, supra, 64 Cal.App.4th 1473, 1486-1487 [legislative statute that shifted and reduced insurers' rate-rollback obligations impermissibly amended Prop. 103, an initiative statute]; Huening, supra, 231 Cal.App.3d 766, 779 [legislative statute that governed ballot arguments impermissibly amended Political Reform Act of 1974 (Gov. Code, § 81000 et seq.), an initiative measure]; Cory, supra, 80 Cal.App.3d 772, 776-777 ["control language" inserted by Legislature in budget bill, in order to restrict manner of audits required by Political Reform Act, impermissibly amended that act].)
On other facts, courts have found no amendment, and hence no violation of article II, section 10, subdivision (c). (See Cooper, supra, 27 Cal.4th 38, 44 [legislative limitation on presentence conduct credits did not amend 1978 Briggs Initiative]; Knight, supra, 128 Cal.App.4th 14, 25 [Legislature's enactment of domestic partnership statutes did not conflict with or take away from Prop. 22, an initiative statute providing that "Only marriage between a man and a woman is valid or recognized in California," and hence did not constitute amendment of that statute]; San Diego NORML, supra, 165 Cal.App.4th 798, 831 [Legislature's imposition of "identification card" requirements on counties under the MMP did not improperly amend the CUA, an initiative measure].)
The Court of Appeal's analysis began with a review of the voters' intent in enacting the CUA. The court observed: "The CUA does not quantify the marijuana a patient may possess. Rather, the only `limit' on how much marijuana a person falling under the CUA may possess is" that it must be "`reasonably related to the patient's current medical needs.'" (Quoting Trippet, supra, 56 Cal.App.4th 1532, 1549.) The appellate court continued: "Ballot materials make clear that this is the only `limitation' on how much
The Court of Appeal further observed: "The Legislature's imposition of quantity limits in section 11362.77 . . . imposes a numeric cap [and the requirement of a physician's recommendation in order to possess more than eight ounces] where the CUA imposed none. Indeed, the Legislature itself recognized it had overstepped its bounds in imposing the cap. In 2004, Senator John Vasconcellos, who introduced the MMP, authored and introduced Senate Bill No. 1494. . . . [That bill] would have amended section 11362.77 by, among other things, deleting the eight-ounce and plant limits [and substituting a new subd. (a)] as follows: `A qualified patient, a person with an identification card, or any designated primary caregiver may possess any amount of marijuana consistent with the medical needs of that qualified patient or person with an identification card.' (Italics added.)
Finally, the Court of Appeal below concluded: "Deleting the quantity limits in the manner suggested by Senate Bill No. 1494 . . . would have corrected the constitutional problem created when the Legislature enacted the MMP without voter approval. Governor Schwarzenegger, however, vetoed the bill, citing a concern that the bill removed `[r]easonable and established quantity guidelines.' (Governor Arnold Schwarzenegger's [veto message concerning] Sen. Bill No. 1494, July 19, 2004.) That may be a valid concern. Nevertheless, it is a concern that cannot be addressed by the Legislature acting without the voters' approval. We therefore . . . hold that section 11362.77 unconstitutionally amends the CUA. . . ."
In this court, both parties essentially agree with the foregoing conclusion reached by the Court of Appeal. The Attorney General, who petitioned for this court's review of the appellate decision, states at the outset of his opening brief: "Respondent does not contest the Court of Appeal's conclusion that section 11362.77 is unconstitutionally amendatory insofar as it limits an in-court CUA defense." The Attorney General subsequently concludes that "application of section 11362.77's limits to the in-court CUA defense exceeds the boundaries of legislative power under article II, section 10, subdivision (c) . . . by replacing the CUA's `reasonableness' standard with specified, numeric guidelines." Defendant, unsurprisingly, agrees with the Attorney General in these respects.
The interpretation and application of article II, section 10, subdivision (c) adopted by the Court of Appeal and the parties—namely, that it prohibits an amendment that arguably merely clarifies an initiative statute by substituting seemingly reasonable, objective standards and restrictions, in place of a difficult-to-apply "reasonable amount" test—may at first blush seem to be overly strict. Indeed, as discussed below, a determination that a statute such as section 11362.77 is unconstitutional in this regard almost certainly would not be the conclusion reached by a court faced with similar legislation under the law of any other state. And yet, as explained below, the conclusion reached by the Court of Appeal and the parties is amply supported by, and indeed compelled by, not only the prior California cases that have discussed the initiative power and applied the foregoing constitutional provision, but also by the history of our state's initiative process.
As noted earlier, article II, section 10, subdivision (c) of the California Constitution states in relevant part: "The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." California's bar on legislative amendment of initiative statutes stands in stark contrast to the analogous constitutional provisions of other states. (Center for Governmental Studies, Democracy by Initiative: Shaping California's Fourth Branch of Government (2d ed. 2008) p. 114 (hereafter Democracy by Initiative, 2d ed.) ["No other state in the nation carries the concept of initiatives as `written in stone' to such lengths as to forbid their legislatures from updating or amending initiative legislation"]; see generally Miller, Constraining Populism: The Real Challenge of Initiative Reform (2001) 41 Santa Clara L.Rev. 1037, 1046-1047 (hereafter Miller); Manheim & Howard, A Structural Theory of the Initiative Power in California (1998) 31 Loyola L.A. L.Rev. 1165, 1197-1198.)
Eight of the remaining nine states that allow voters to adopt statutes by initiative measure place various limitations upon the authority of the legislature to act in response to an initiative statute. Two of these jurisdictions allow amendment by the legislature at any time, but impose a moratorium on legislative repeal until two years after adoption of the initiative statute.
In order to illuminate the scope and effect of California's constitutional provision prohibiting the Legislature from amending an initiative adopted by the people, we describe below the history of the provision and of the various attempts and proposals to change it.
At the close of the 19th century, a small but vocal contingent of reformers, pointing to the record of "direct democracy" in Switzerland, campaigned for the adoption of the initiative and referendum process in the United States.
Although the provisions of some of those state constitutions withheld authority from the governor to veto initiative statutes passed by the electorate,
During the time in which other states were incorporating initiative provisions into their respective constitutions, the California Legislature permitted charter cities to do the same as a local matter. San Francisco, in 1898, and Los Angeles, in 1903, each adopted charters permitting local initiatives, and in doing so included provisions similar to that subsequently adopted by Michigan in 1909, under which the legislative body, although barred from amending an initiative measure on its own, at least was authorized to propose that the electorate adopt a specific amendment to an initiative ordinance. (S.F. Charter, art. II, § 20, as adopted by the S.F. electorate May 26, 1898; L.A. City Charter, art. XIX, § 198a, subd. (b), as amended Jan. 1, 1903.)
At each session of the California Legislature convened between 1903 and 1909, proposals were advanced to put before the electorate constitutional amendments designed to extend the initiative and referendum statewide. Although most of these bills departed from the prevailing approach of the other states (and followed the strict approach of the Sac. charter) by expressly barring any amendment by the Legislature of initiative statutes,
Thereafter, in drafting the ultimately successful California measure of 1911, the proponents did not follow the majority model, under which the state legislature was left free to repeal or amend initiative statutes just like any other statute. Nor did the drafters of the California provision follow even the minority model of San Francisco, Los Angeles, and Michigan, under which the legislative body could not directly repeal or amend, but at least could propose to the voters that an initiative measure be repealed or amended.
At the next legislative session, two proposed constitutional amendments were introduced, each of which endeavored to change the new initiative provision by, among other things, giving the Legislature authority to amend initiative statutes upon a supermajority vote of each house.
Similar unsuccessful efforts to amend the initiative process were undertaken in subsequent years. In 1919, Assembly Constitutional Amendment No. 16 was introduced in the Legislature, proposing a constitutional amendment that, if approved by the voters, would have eliminated the initiative power and permitted the Legislature to repeal or amend previously enacted initiative statutes.
In the meantime, statutes enacted by the electorate as initiatives posed problems that demanded attention and amendment. And yet, such statutes were so difficult to amend that they were aptly characterized by contemporaneous commentators as being, "in effect," "quasi-constitutional amendments." (Key & Crouch, supra, at p. 481.) For example, although it became clear that an amendment would benefit the Chiropractic Initiative Act, adopted in 1922, the Legislature apparently believed that it lacked clear authority even to submit to the voters any proposed measure to amend that initiative statute.
This and a similar experience with the equally problematic "Torrens Land Title Act" or "Land Title Law," adopted by the voters as an initiative statute in 1914,
In 1948, 1950, and 1952 the Legislature employed its new authority to pass and then propose for voter approval a series of amendments to the 1922 chiropractic initiative statute.
Although the 1946 amendment to former article IV, section 1, gave the Legislature a method by which it might propose a specific amendment to, or repeal of, an initiative-enacted law, that change also carefully preserved article IV's original strict safeguards by requiring the electorate's approval of any legislative proposal to amend or repeal (unless the initiative measure itself allowed amendment or repeal without voter approval). Even this slight modification in the relationship between statutes adopted by initiative and those adopted by the Legislature, however, still left voter-adopted initiative statutes in California far more insulated from adjustment than in any other jurisdiction.
In the mid-1960's, California, assisted by the California Constitution Revision Commission, undertook a revision of the Constitution. (See generally Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 752-754 [43 Cal.Rptr.3d 315, 134 P.3d 299].) Although some commentators questioned the then existing provision of article IV that strictly limited the legislative amendment of statutes adopted by initiative,
In the 1966 General Election, the voters adopted Assembly Constitutional Amendment No. 13 as Proposition 1-a, which relocated the initiative provisions to article IV, section 22 et seq. Revised article IV, section 24, subdivision (c) rephrased the former provision concerning repeal and amendment, without substantive change, to read as it does today: "The Legislature may . . . amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." Thereafter, following two more failed attempts to change the provision to allow amendment by the Legislature, without voter approval, of statutes adopted by initiative,
In the present case, the CUA—unlike many other initiative measures in recent decades—did not grant the Legislature authority to amend.
As the Governor suggested when he vetoed the 2004 legislation that had been designed to amend section 11362.77 of the MMP in order to avoid the
As observed earlier, beginning almost immediately after adoption of the initiative provision in 1911, and continuing through a number of efforts in recent decades, various proposals have been advanced, and legislative attempts have been made, to change California's constitutional system in order to bring the state in line with our sister jurisdictions. These efforts have aimed to eliminate the strict limitation on the power of the Legislature (or at least to moderate that power) by, for example, allowing amendments that "further the purpose" of the original initiative measure, or allowing amendments after a moratorium of years, or allowing amendments by a supermajority vote of both houses. And yet all such efforts have failed.
Over the course of the decades during which California has had the initiative process, the sole substantive alteration to the governing constitutional provision occurred in 1946, when it was changed to allow the Legislature at least to propose an amendment to an initiative statute, subject to ratification by the statewide electorate at the ballot. That minor adjustment to the strict rule of nonamendability highlights and reinforces the closely circumscribed limits of the Legislature's authority in this regard: the Legislature is powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or
As observed earlier, after the Court of Appeal concluded that section 11362.77 (together with its quantity limitations) is unconstitutional insofar as this statute burdens a defense otherwise available under the CUA, that court further held that section 11362.77 "must be severed from the MMP" and hence voided in its entirety. The Attorney General asserts that the Court of Appeal erred in imposing this remedy. Instead, the Attorney General argues, although section 11362.77 can have no effect insofar as it would burden a defense afforded by the CUA, in a defendant's attempt to establish that a quantity of marijuana possessed was reasonable for a person's current medical needs, the statute need not and should not be severed from the MMP and voided in its entirety. The Attorney General advocates that section 11362.77 should remain an enforceable part of the MMP, applicable to the extent possible—including to those persons who voluntarily participate in the program by registering and obtaining identification cards that provide protection against arrest. Defendant essentially agrees with the Attorney General in this respect.
In this regard, both parties rely upon the decision of the Court of Appeal in San Diego NORML, supra, 165 Cal.App.4th 798. In that case, counties challenged the MMP's identification card program—specifically, the duty imposed upon counties by section 11362.72 of the MMP to "implement a program permitting a limited group of persons . . . who qualify for exemption from California's statutes criminalizing certain conduct with respect to marijuana[,] . . . to apply for and obtain an identification card verifying their exemption." (165 Cal.App.4th at p. 808.) These counties claimed that the MMP's identification card program constitutes an impermissible amendment of the CUA. The appellate court acknowledged that because the CUA contained no provision allowing amendment by the Legislature, the MMP's "identification laws . . . are invalid if they amend the CUA within the meaning of article II, section 10, subdivision (c). . . ." (San Diego NORML, supra, 165 Cal.App.4th at p. 829.)
Citing and applying Cooper, supra, 27 Cal.4th 38, 47, and Mobilepark West Homeowners Assn., supra, 35 Cal.App.4th 32, 43, the appellate court in San Diego NORML concluded that "the identification [card] laws [of the MMP] do not improperly amend the provisions of the CUA." (San Diego NORML, supra, 165 Cal.App.4th 798, 830.) The court stated: "The MMP's identification card system, by specifying [that] participation in that system is voluntary
The court in San Diego NORML concluded: "Here, although the legislation that enacted the MMP added statutes regarding California's treatment of those who use medical marijuana or who aid such users, it did not add statutes or standards to the CUA. Instead, the MMP's identification card is a part of a separate legislative scheme providing separate protections for persons engaged in the medical marijuana programs, and the MMP carefully declared that the protections provided by the CUA were preserved without the necessity of complying with the identification card provisions. (§ 11362.71, subd. (f).) [In this sense] [t]he MMP, in effect, amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA. Because the MMP's identification card program has no impact on the protections provided by the CUA, we reject Counties' claim that those provisions are invalidated by article II, section 10, subdivision (c) of the California Constitution." (San Diego NORML, supra, 165 Cal.App.4th 798, 831; accord, People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011-1014 [98 Cal.Rptr.3d 347] [holding that § 11362.775 of the MMP, concerning collectives or cooperatives, does not constitute an unconstitutional amendment of the CUA].)
We agree with the parties that the Court of Appeal below erred in concluding that section 11362.77 must be severed from the MMP and voided in its entirety.
Accordingly, although we disallow the invalid application of section 11362.77—that is, insofar as the terms of the statute purport to burden a defense otherwise available to qualified patients or primary caregivers under
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
The remaining provisions of the MMP address significant ancillary matters. Section 11362.7 sets forth definitions. As explained in detail post, section 11362.77—the provision at issue in this case—establishes specific quantity limitations for possession and cultivation, and also establishes a "safe harbor" protecting against prosecution of those who legitimately possess amounts within those limits. Two sections afford immunity from criminal liability for various crimes—they parallel the immunity afforded by the CUA for possession and cultivation, and extend immunity for other related offenses, such as transportation of marijuana. (§§ 11362.765, 11362.775.) Section 11362.785 provides that no "accommodation" is required for the use of medical marijuana during employment or while incarcerated. Section 11362.79 clarifies that nothing in the MMP authorizes smoking of medical marijuana where smoking is barred by law or in other circumstances. Section 11362.795 addresses the use of medical marijuana while on probation, release on bail, or parole. Finally, section 11362.8 protects designated primary caregivers from civil penalties or disciplinary actions by licensing boards.
The CMA's recommendation is itself based upon federal case law holding that, because medical marijuana users and cannabis clubs operating under the CUA remain subject to federal drug prosecution, the federal Controlled Substances Act (21 U.S.C. § 801 et seq.) gives the federal government authority to withhold the ability to prescribe drugs from physicians who act contrary to the "public interest," including by the unlawful dispensing of controlled substances such as "medical marijuana." (See 21 U.S.C. §§ 823(f), 824(a); Gonzales v. Raich (2005) 545 U.S. 1, 32-33 [162 L.Ed.2d 1, 125 S.Ct. 2195]; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 494 & fn. 7 [149 L.Ed.2d 722, 121 S.Ct. 1711]; see also Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 634-639 [although physicians have a 1st Amend.-based right to discuss the pros and cons of medical marijuana use with patients, if physicians advise patients concerning how to obtain the drug, physicians risk triggering liability under federal law for aiding and abetting the unlawful possession of a controlled substance].)
We note that the United States Department of Justice recently clarified its enforcement priorities with regard to states, such as California, that have enacted laws authorizing the medical use of marijuana. (U.S. Dept. of Justice, Memorandum for Selected United States Attorneys (Oct. 19, 2009) <http://www.justice.gov/opa/documents/medical-marijuana.pdf> [as of Jan. 21, 2010].) Although this policy change may give physicians somewhat increased confidence in their ability lawfully to recommend the use of marijuana for medical treatment, it is clear that there has been no substantive change in federal law.
Presently, Elections Code section 9125, governing county initiatives, and section 9217, governing city initiatives, perpetuate the "Sacramento version" of the strict rule, permitting no amendment of a local initiative measure "unless provision is otherwise made in the original ordinance." Current local charters also follow that approach. (See Sac. City Charter, § 160 [making the provisions of the Elec. Code applicable to local initiatives]; S.F. Charter, § 14.101 ["No initiative . . . approved by the voters shall be subject to veto, or to amendment or repeal except by the voters, unless such initiative . . . shall otherwise provide."]; but see L.A. City Charter, § 464, subd. (a) ["Any ordinance adopted by a vote of the electors of the City pursuant to an initiative petition cannot be amended or repealed, except by an ordinance proposed either by petition or by the Council at its own instance and adopted by a vote of the electors, or by an amendment of the Charter superseding the ordinance."].)
In 1909: Senate Constitutional Amendment No. 6 (introduced Jan. 8, 1909, by Sen. Black, p. 3 [proposing that "[a] statute adopted by direct vote of the people can be repealed or amended only by direct vote of the people"]); Senate Constitutional Amendment No. 9 (introduced Jan. 8, 1909, by Sen. Anthony, p. 2 [proposing that "[n]o measure adopted or approved by vote of the electorate shall be subject to veto, or be amended or repealed [except] by vote of the electorate"]); Assembly Constitutional Amendment No. 11 (introduced Jan. 11, 1909, by Mr. Drew, p. 3 [same as Sen. Const. Amend. No. 6, introduced by Sen. Black]); see generally Hichborn, Story of the Session of the California Legislature of 1909 (1909) pages 192-201 (colorfully describing the drafting and defeat of the 1909 proposals).
The problem with the Legislative Counsel's theory—and perhaps the reason that the Attorney General does not advance it in this court—is that subdivision (b) of section 11362.77 of the MMP does not truly "substantially" or "essentially" replicate the "reasonable amount" test of the CUA, as construed in Trippet, supra, 56 Cal.App.4th at page 1549. Instead, as alluded to ante, footnote 21, in two ways, the rights conferred by subdivision (b) of section 11362.77 fall significantly short of matching the rights established by the CUA.
First, on its face, subdivision (b) speaks only of the right to "possess" dried marijuana consistent with a patient's needs—it does not expressly track subdivision (a) by covering both possession of dried marijuana and maintenance (cultivation) of plants. Presumably, this limitation was intentional. The Legislature may have concluded that physicians would be able to estimate the amount of dried marijuana that a patient would need to possess for personal medical use, but would not be qualified to estimate the number of plants that a patient additionally would need to cultivate in order to maintain a regular supply for such use. In any event, in this respect, subdivision (b) of section 11362.77 addresses only part of what is covered by the CUA. Accordingly, even if a physician recommends under subdivision (a) of section 11362.77 that eight ounces is insufficient for a patient's needs, subdivision (b) of that section provides no similar "override" for the cultivation limitation ("six mature and 12 immature marijuana plants"), and hence, in this respect at least, the MMP clearly "takes away" from a right created by the CUA.
Second, insofar as the right to possess marijuana is concerned, subdivision (b) of the MMP enactment does contemplate a standard similar to the "reasonable amount" standard afforded under the CUA as construed by Trippet, supra, 56 Cal.App.4th at page 1549. Unlike the CUA, however, this subdivision imposes a burden on that right, by requiring a physician's recommendation that an eight-ounce allotment does not meet the person's medical needs. As suggested ante, footnote 10, this burden is substantial, because physicians are counseled by the California Medical Association that in light of federal case law, physicians should avoid offering advice concerning matters such as "how much medicinal cannabis the patient should take." (CMA On-Call, supra, at p. 15.) Moreover, the CMA cautions, although physicians may "opine that the allowable amount of cannabis does not appear to meet a particular patient's medical needs," they may do so only if the physician "has a reasonable basis for such an opinion." (Id., at p. 16, italics omitted; see also id., at p. 20.) We also observe that although the defendants in Wright, supra, 40 Cal.4th 81, and People v. Windus, supra, 165 Cal.App.4th 634 (both mentioned ante, fn. 8) each secured a recommendation consistent with section 11362.77, subdivision (b), from a physician who testified accordingly at trial, in both cases the physician was the same—William Eidelman, M.D., whose professional license was suspended from May 2002 through February 2004. (Windus, supra, at p. 638; Wright, supra, at p. 86.)
In light of the restricted scope of coverage provided by 11362.77, subdivision (b) (that is, its creation of an exception to the quantity limitations set forth in subd. (a) for possession but not for cultivation), and in light of the added obligation this subdivision places upon a qualified patient's ability to argue that he or she possessed an amount of marijuana reasonably related to his or her medical needs (that is, the requirement of obtaining a physician's recommendation that the amount set forth in subd. (a) is insufficient), we conclude that the MMP burdens, and "takes away" from, rights established by the CUA.