The First Step to Taking Back Our Constitutionally Protected Cultivation Rights Under Prop. 215

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prop-215   The first step to taking back our constitutionally-protected cultivation rights under Prop. 215 is for everyone, whether they are growing or not, to send their city council, or county board of supervisors this notice, as a resident of whatever city or county in which they live. If you want, you can send it in from “Anonymous,” but keep a copy and proof of mailing it, e.g., make a copy of the addressed, stamped envelope stapled to a copy of this notice with a note of the date of mailing.

NOTICE OF UNCONSTITUTIONALITY OF LOCAL MARIJUANA CULTIVATION ORDINANCE

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), to the extent it prevents any medical marijuana patients from cultivating and possessing enough marijuana for their personal medicinal uses, as well as the MMRSA on which it is based, violates California’s controlling law, the Compassionate Use Act (CUA), a law added to the Health & Safety Code by a statewide, voter-adopted initiative.    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 attempts to impair or burden such rights is unconstitutional under California Constitution Article II, Section 10 subdivision (c).

Kelly did not state that patients only have an affirmative defense from prosecution, because a defendant cannot have an affirmative defense to a crime without a foundational right to engage in an act that, without such right, would be a crime, but with such right is not a crime at all. So what patient actually have is not an affirmative defense, but qualified immunity from prosecution.  This means that the burden is not on the patient to establish his or her defense, but instead the prosecution has the burden of disproving the basis for qualified immunity.

Notably, People v. Kelly was decided the last time that the State Legislature adopted legislation that attempted to limit the amount of marijuana that a patient could lawfully grow or possess, when it 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 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 Court reiterated the fact that the CUA gives patients the right 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 Kelly Court explained that this effort to adopt laws impairing 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.)  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.)    Thus, because the Legislature’s efforts, via the MMRSA, just like with the MMP, are a “scheme” that “the Legislature adopted . . . on its own, without seeking ratification by the electorate,” and that impose more burdens on medical marijuana patients than allowed under the CUA, they are unconstitutional.  (Id. at p. 1043.)

This is why the Medical Marijuana Regulation & Safety Act (MMRSA), and all the local laws adopted pursuant to it, which purport to limit what patients can grow, and to burden such right by requiring patients to get licenses, permits, identification cards and jump through other such hoops, are unconstitutional, 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.    Furthermore, 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, so 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 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, and that the Attorney General had done so, the 2008 Attorney General Guidelines for the Safety and No diversion of Medical Marijuana.  It also failed to discuss the facts, e.g.,  that (1) if the State itself could not have impaired patients’ access to medical marijuana, then neither could its political subdivisions, the cities and counties, do so,  and (2) the purpose of government’s police power is to regulate land uses to prevent nuisances.  Any activity authorized by the People of California, such as the personal cultivation of marijuana for personal medicinal needs, cannot be deemed a “per se nuisance” and banned as such.    More to the point, the Inland Empire Patients Health & Wellness Center case did not address the issue of personal cultivation.

The case of Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, is only a Court of Appeal decision, and does not control over contrary California Supreme Court opinions.  Thus, Maral, which erroneously held that patients have no “right” to cultivate medical marijuana, and which relied on a pre-Kelly, overruled holding in another Court of  Appeal opinion, People v. Urziceanu  (2005) 132 Cal.App.4th747, 774 to state that “The CUA creates only a limited defense to certain crimes, ‘not a constitutional right to obtain marijuana’. ”

But Maral did not cite, let alone attempt to discuss, People v. Kelly, which held that patients do have a constitutionally-protected right to cultivate.    I 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 will obtain a doctor’s recommendation or approval (which need not be renewed every year) that medical marijuana might help my serious medical problem. Any medical problem for which a prescription drug can be prescribed is obviously “serious.”

If, in the future, I am cited for violating this unlawful and unconstitutional ordinance or the MMRSA, I, like all medical marijuana patients, will raise all these issues, and all such others as also may be applicable, in my defense and, if I so decide, in a countersuit against the government entity that is unconstitutionally violating my constitutionally-protected, CUA-given rights.”  images1

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