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
