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10-17-2010, 03:36 AM #1OPSenior Member
Cal Supreme Court Ruling on MMJ - People v. Kelly
[align=center]V.[/align]
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 and a person may ??claim the protections of [the CUA]?? without possessing a card (§ 11362.71, subd. (f)), demonstrates the MMP??s identification card system is a discrete set of laws designed to confer distinct protections under California law that the CUA does not provide[,] without limiting the protections the CUA does provide. For example, unlike the CUA, which did not immunize medical marijuana users from arrest but instead provided a limited ??immunity?? defense to prosecution under state law for cultivation or possession of marijuana [citation], the MMP??s identification card system is designed to protect against unnecessary arrest. (See § 11362.78 [law enforcement officer must accept the identification card absent reasonable cause to believe card was obtained or is being used fraudulently].)? (San Diego NORML, supra, 165 Cal.App.4th 798, 830.)
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, 1101-1014 [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.
We begin with the fundamental proposition that in resolving a legal claim, a court should speak as narrowly as possible and resort to invalidation of a statute only if doing so is necessary. (Dittus v. Cranston (1959) 53 Cal.2d 284, 286 [??Courts should exercise judicial restraint in passing upon the acts of coordinate branches of government; the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional?]; see also, e.g., In re M.S. (1995) 10 Cal.4th 698, 710; Conservatorship of Roulet (1979) 23 Cal.3d 219, 231, fn. 9.)
The Court of Appeal provided no reason for its conclusion that section 11362.77 must be severed from the MMP and hence voided in its entirety ?? and we discern no principled basis for doing so. A determination that section 11362.77 is unconstitutional insofar as it might be applied in a manner that burdens a defense authorized by the CUA does not, in and of itself, require invalidation of the remaining aspects of this statute; there is no operational or functional reason for such a conclusion. Section 11362.77 continues to have legal significance, and can operate as part of the MMP, even if it cannot constitutionally restrict a CUA defense.
As both parties argue, the appropriate remedy in the circumstances presented is to disapprove, or disallow, only the unconstitutional application of section 11362.77, thereby preserving any residuary constitutional application with regard to the other provisions of the MMP. (Cf. Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 266-267.) It seems clear that the Legislature would have preferred such a result had it foreseen the invalidity of section 11362.77 insofar as the statute burdens a defense otherwise available under the CUA. Section 11362.82 provides that ??any section, subdivision, sentence, clause, phrase, or portion? of the MMP adjudged invalid or unconstitutional ??shall not affect the validity of the remaining portion[s]? of the act. Although the language of section 11362.82 differs from the severability clause at issue in Walnut Creek, supra, 54 Cal.3d 245, 267, which expressly called for the severance of any invalid application of the statute there at issue, the circumstance nonetheless remains that ?? ??[a]lthough not conclusive, a severability clause normally calls for sustaining the valid part of the enactment . . . .?? ? (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821.) In this regard, and in view of the history set forth in our opinion in the present case, we are confident that the Legislature would have extended the severability provisions of section 11362.82 to include invalid applications of the MMP had it foreseen the circumstances here at issue.
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 the CUA ?? we conclude that the Court of Appeal erred in holding that section 11362.77 must be severed from the MMP and hence voided in its entirety.
[align=center]VI.[/align]
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. Thus, such a person may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs (see Trippet, supra, 56 Cal.App.4th 1532, 1549), without reference to the specific quanitative limitations specified by the MMP.
We conclude as follows: To the extent section 11362.77 (together with its quantitative limitations) impermissibly amends the CUA by burdening a defense that would be available pursuant to that initiative statute, section 11362.77 is invalid under California Constitution article II, section 10, subdivision (c). Nevertheless, it would be inappropriate to sever section 11362.77 from the MMP and hence void that provision in
its entirety. To the extent the judgment of the Court of Appeal purports to sever section 11362.77 from the MMP and to void this statute in its entirety, the judgment is reversed. In all other respects, the judgment is affirmed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
Name of Opinion People v. Kelly
__________________________________________________ ________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 163 Cal.App.4th 124
Rehearing Granted
__________________________________________________ ________________________________
Opinion No. S164830
Date Filed: Janaury 21, 2010
__________________________________________________ _______________boaz Reviewed by boaz on . Cal Supreme Court Ruling on MMJ - People v. Kelly Filed 1/21/10 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Rating: 5
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