California will fight court ruling on medical marijuana
June 05, 2008
Tim Reiterman and Eric Bailey, Los Angeles TimesSAN FRANCISCO -- State Atty. Gen. Jerry Brown says he will challenge a recent appellate court decision that struck down California's guidelines on medical marijuana possession and cultivation, leaving patients and police wondering how much weed is too much.
Brown said in an interview this week that he would ask the California Supreme Court to overturn last month's PDF'>decision by the state Court of Appeal in Los Angeles because it inhibits authorities' ability to control abuses while protecting legitimate access to cannabis.
The court ruled that the Legislature in 2003 made an unconstitutional amendment to the 1996 voter-approved Compassionate Use Act by specifying the amount of marijuana that patients could possess for medicinal purposes.
The decision, hailed by some medical marijuana advocates, has not only cast doubt on the legislation’s standard of 8 ounces of dried pot and six mature or 12 immature plants. It has also created a cloud of uncertainty over more liberal guidelines adopted by some counties, particularly those in the marijuana belt of the North Coast.
Brown, who supports medical marijuana, said the legislation was a reasonable approach to implementing a vaguely written ballot measure.
"The proposition is not as clear as we would like," he said. "You do not need an unlimited quantity of marijuana for medicine. But what is the quantity?"
The marijuana initiative was designed to provide access to patients with cancer, AIDS and other ailments. But its execution has created a hodgepodge of local marijuana controls.
In some locales, indoor and outdoor marijuana cultivation has aroused community backlash over the effect on neighborhoods, public safety and the environment.
Law enforcement officials have alleged that drug dealers are hiding behind the marijuana law. And medical marijuana advocates are worried that abuses by some are threatening the access of deserving people to a medicine.
The court decision, in late May, involved Patrick K. Kelly of Lakewood, who suffers from hepatitis C, back pains and cirrhosis. Kelly had a doctor's recommendation to use marijuana.
But a search of his home in 2005 yielded some marijuana plants and 12 ounces of dried pot. He was convicted of marijuana possession and cultivation after a prosecutor argued that he had more than the 8 ounces allowed under the state guidelines without a doctor's recommendation for more. His sentence: three years' probation and two days in jail.
In ordering a retrial, the appellate court found that legislation imposing a "cap" on the amount of marijuana was illegal because amendments to initiatives can be adopted only through a vote of the people.
Some marijuana advocates greeted the ruling as welcome relief from any limits.
Others and the attorney general's office said the appellate judges misconstrued the legislation because it contains no firm caps.
They said the legislation set the six-plant threshold but allowed local governments or a patient's personal physician to set higher limits.
Authorities and several advocates said that without rules on quantity, police officers must figure out on their own how much medical marijuana is reasonable.
Kris Hermes of Americans for Safe Access, a patients group, said the absence of guidelines could prove "detrimental in the long run. . . . It's all left up to the discretion of the police and courts, and that is not good."
Modesto Police Chief Roy Wasden, a member of the California Police Chiefs Assn. board, said it would be a balancing act.
"Obviously, someone with 100 pounds probably would not be viewed as having a reasonable amount," he said. "And probably someone with a few ounces would."
California Narcotic Officers Assn. lobbyist John Lovell likened the situation to a return to the Wild West.
When the appellate decision came down, the attorney general's office was close to issuing guidelines on medical marijuana for police who are concerned about criminal growing and dispensing, and for marijuana advocates who don't want narcotics officers breaking down their doors.
"We are trying to give guidance to patients as to how they can lawfully cultivate, acquire and possess," said Special Assistant Atty. Gen. Jacob Appelsmith. "And for law enforcement, we are trying to give them guidance."
In Humboldt County, where the growing guidelines are 100 square feet of leaf canopy and as many as 99 plants, Dist. Atty. Paul Gallegos said of the court ruling: "It changes everything. It . . . means no legal limitations."
The conundrum comes as another pot-tolerant county grapples with a revolt over its limits. A measure that was on Tuesday's ballot in Mendocino County would roll back a 25-plant cap that applied to recreational pot as well as medical marijuana.
With thousands of votes still to be counted Thursday, the repeal effort was ahead 52% to 48%.
Thirteen states have legalized medical marijuana, although the federal government does not recognize such laws. Only Washington has not spelled out the quantity of marijuana a patient can possess or grow; that state allows patients a 60-day supply.