MMRA in affect as of 2016
NOTICE OF UNCONSTITUTIONALITY OF THE STATE OF CALIFORNIA’S
MEDICAL MARIJUANA REGULATION & SAFETY ACT AND OF
ALL LOCAL ORDINANCES ADOPTED IN RELIANCE ON IT
This jurisdiction’s local ordinance to restrict the cultivation and possession of medical marijuana, adopted pursuant to the State's Medical Marijuana Regulation and Safety Act (MMRSA) will prevent me and any of my household members and the relatives for whom I provide medical marijuana who are medical marijuana patients, from cultivating and possessing enough marijuana for my/our personal medicinal uses.
This local ordinance, and the MMRSA on which it is based, thus both violate California's applicable and controlling law, the voter-enacted, statewide Compassionate Use Act (CUA).
The California Supreme Court, in People v. Kelly (2008) 47 Cal.4th 1008, 1043, 1049, held that medical marijuana patients have the CUA-given right to cultivate and possess as much marijuana as they need for their personal medicinal uses, and that any law that is not a voter-approved statewide initiative that attempts to impair or burden such rights would be, and is, unconstitutional under California Constitution, Article II, Section 10, subdivision (c).)
Contrary to popular misconception, People v. Kelly did not state that patients have only an affirmative defense from prosecution. That is because a defendant cannot have an affirmative defense to a crime without a foundational right to support such defense. The foundational right is the right to engage in an act that, without such right, would be a crime, but with such right is not a crime at all. For medical marijuana patients, those rights, given by the CUA and cases that have interpreted the CUA, are the rights of cultivation, transportation, possession and medicinal use.
Notably, People v. Kelly was decided the last time the State Legislature adopted legislation that attempted to limit the amount of marijuana that a patient could lawfully grow or possess. That was when the State Legislature adopted the Medical Marijuana Program Act (the MMP), which added Health & Safety Code section 11362.77's plant and flower limits to the CUA.
The California Supreme Court, in People v. Kelly, held that "By extending the reach of section 11362.77's quantity limitations beyond those persons who voluntarily register under the MMP and obtain an identification card that provides protection against arrest—and by additionally restricting the rights of all "qualified patients" and "primary caregivers" who fall under the CUA—the challenged language of section 11362.77 effectuates a change in the CUA that takes away from rights granted by the initiative statute." (47 Cal.4th at p. 1043, emphasis added.)
The Kelly court reiterated the fact that the CUA gives patients the rights to possess and cultivate as much medical marijuana as they need for personal medicinal use regardless of any state legislation to the contrary: "Whether or not a person entitled to register under the MMP elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA, retains all the rights afforded by the CUA [, including] the right to . . .possess or cultivate an amount of marijuana reasonably related to meet his or her current medical needs." (Id., at p. 1048, emphasis added, citation omitted.)
The People v. Kelly Court also explained that this legislative effort to adopt laws that impair CUA-given rights are unconstitutional because it "constitutes an amendment of the CUA in violation of California Constitution, article II, section 10, subdivision (c)." (Id., at p. 1042, emphasis added.)
As the Kelly court noted, "[T]he CUA—unlike many other initiative measures in recent decades—did not grant the Legislature authority to amend." (47 Cal.4th, supra, at p. 1042, footnote omitted, emphasis added.) Because the State Legislature's current efforts, via the MMRSA, are, just like its old efforts with the MMP, a "scheme" that "the Legislature adopted . . . on its own, without seeking ratification by the electorate," and because they impose more burdens on medical marijuana patients than allowed under the CUA, they are unconstitutional. (Id. at p. 1043.)
This is why the MMRSA, and all the local laws adopted pursuant to it, which purport to limit what patient can grow, and to burden such right by requiring patients to get licenses, permits, identification cards and jump through other such hoops, are unconstitutional. They are illegal efforts to impair and burden the constitutionally-protected rights given to patients by the People of the State of California when they adopted the CUA.
This is why neither the State of California nor any of its political subdivisions, e. g., the counties and cities, may require any patient to obtain a license, permit, or government-issued ID card as a condition of cultivation, possession or transportation.
First, possession or cultivation of even medical marijuana is still illegal under federal law. Thus, requiring a person to go on record, in any way, as possessing or cultivating it, unconstitutionally violates such person's Fifth Amendment Right against self-incrimination. (Leary v. United States (1969) 395 U.S. 6, 12-13.)
Second, the CUA was intended to make access to medical marijuana safe and affordable. Requiring patients to obtain such permits, licenses and cards makes access less affordable, and thus not only violates the restriction on "burdening" CUA-given rights, but also violates the intent of the CUA. The cases cited by cities and counties in justification of adopting these unlawful ordinances, which were cobbled together by the self-serving League of Cities and the California Chiefs of Police, do not make these ordinances lawful.
For example, the case of City of Riverside v. Inland Empire Patients Health & Wellness Center (2013) 56 Cal.4th 729 reached its limited result -- to allow cities and counties to ban storefront dispensing collectives (colloquially known as “dispensaries”) - by ignoring applicable law and facts. It failed to mention, e.g., that the State Legislature had directed the Attorney General to adopt statewide regulations to carry out the purposes of the CUA, that the Attorney General had begun to do so by adopting the 2008 Attorney General Guidelines for the Safety and Nondiversion of Medical Marijuana, and that such guidelines indicated how such storefront collectives could be required to operate lawfully.
The Inland Empire Patients Health & Wellness Center case also failed to discuss such relevant issues as, e.g., (1) if the State itself could not have completely impaired patients' access to medical marijuana, then what gave its political subdivisions, the cities and counties, the power to do so? and (2) if the purpose of government's police power is to regulate land uses to prevent public nuisances, then how can any activity authorized by the People of California, such as the not-for-profit distribution of medical marijuana, be deemed a "per se nuisance" and banned as such?
More to the point, the Inland Empire Patients Health & Wellness Center case did not ever actually address the issue of personal cultivation and possession.
The case of Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, now cited as authority that cities and counties and the State can ban personal cultivation, is only a Court of Appeal decision, and does not control contrary California Supreme Court opinions. Thus, Maral, which held that patients have no "right" to cultivate medical marijuana, merely relied on another mere Court of Appeal opinion to state that "The CUA creates only a limited defense to certain crimes, 'not a constitutional right to obtain marijuana,' " by citing People v. Urziceanu (2005) 132 Cal.App.4th 747, 774. But Maral did not even cite, let alone attempt to distinguish, the California Supreme Court decision of People v. Kelly, which held that patients do have a constitutionally-protected right to cultivate and possess as much marijuana as each patient needs for his or her personal medicinal needs.
I and my family members therefore will not obtain a license, a permit, a medical marijuana ID card issued by anyone, or do anything more than what the CUA requires, to wit, I and they will obtain a doctor's recommendation that medical marijuana might help our serious medical problems. If, in the future, I or any medical marijuana patient in my household or family are cited for violating this unlawful and unconstitutional ordinance or the MMRSA, we, like all medical marijuana patients, will raise all these issues, and all such others as also may be applicable, in our defense and, if we so decide, in a countersuit against the government entity that is unconstitutionally violating our constitutionally-protected, CUA-given rights.
Dated: _________________________ Signed: Anonymous Local Citizen