California Courts Of Appeal Examine Whether The Medical Marijuana Program Act Unconstitutionally Amends The Compassionate Use Act

In two separate cases, California Courts of Appeal considered the issues of (1) whether the Medical Marijuana Program Act’s numerical limits on the amount of marijuana or plants a qualified patient can possess is an unconstitutional amendment to the Compassionate Use Act, and (2) whether the Medical Marijuana Program Act’s identification card provisions are an unconstitutional amendment to the Compassionate Use Act or are preempted by federal law.

In The People v. Phomphakdy, (— Cal.Rptr.3d —, 2008 WL 2931369, Cal.App. 3 Dist., July 31, 2008), the Third Appellate District held that the numerical limits of the Medical Marijuana Program Act amount to an unconstitutional amendment to the Compassionate Use Act. In County of San Diego v. San Diego NORML, (— Cal.Rptr.3d —, 2008 WL 2930117, Cal.App. 4 Dist., July 31, 2008), the Fourth Appellate District held that the Medical Marijuana Program Act is not preempted by federal law and its identification card provisions are not an unconstitutional amendment to the Compassionate Use Act.

Background

California voters approved the Compassionate Use Act in 1996 “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes’ upon the recommendation of a physician.” Certain laws regarding the possession and cultivation of marijuana do not apply to a patient, or his or her primary caregiver, who has the recommendation or approval of a physician. In 2003, the California Legislature enacted the Medical Marijuana Program Act that, among other things, directs the State Department of Health Services to establish and maintain a voluntary program to issue identification cards to qualified patients. Counties are responsible for many phases of the identification card process. The holder of a valid identification card is not subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana. The Medical Marijuana Program Act (“MMPA”) also sets the following numerical limits for the possession of marijuana: No more than eight ounces of dried marijuana and no more than six mature or 12 immature plants. The numerical limits do not apply if a doctor recommends that the limited quantity would not meet the patient’s medical needs.

A statute that has been “enacted by voter initiative be changed only with the approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval.” The Compassionate Use Act (“CUA”) does not contain permission for the Legislature to amend its provisions without voter approval.

Phomphakdy

Police searched the home of Chanh Phomphakdy and found in a closet a large stalk of marijuana that was hanging to dry that weighted 1.8 pounds, three pounds of marijuana in baggies, and 2.2 pounds of marijuana in two plastic containers and a glass jar. In a cabinet in the home, police found one and three-quarters pounds of marijuana. Four marijuana plants that were five to six feet high were planted in the yard. Drying on a fence in the yard was a marijuana plant that weighed one pound. During the search, officers found a medical marijuana recommendation for Phomphakdy. Officers did not find any large amounts of money, scales, firearms, pay-owe sheets, pipes or “bongs.”

An expert witness for the State of California testified that the marijuana was possessed for sale. An expert witness for Phomphakdy testified that the total amount of useable marijuana found at Phomphakdy’s home, about nine and one-half pounds, was a year’s supply if eaten, or a three-year supply if smoked. Phomphakdy’s doctor did not recommend an amount of marijuana to be ingested because he feared violating federal law if he made such a recommendation. A jury found Phomphakdy guilty of two counts of misdemeanor possession of marijuana.

Phomphakdy asserted that the MMPA’s numerical limits are an unconstitutional amendment to the CUA. The Court of Appeal agreed.

The CUA does not place numerical limits on the amount of marijuana that can be possessed or cultivated by a patient or primary caregiver. The Court of Appeal held that the portion of the MMPA that provides for numerical limits on the amount of dried marijuana and marijuana plants that can be possessed amounts to an amendment of the CUA. The attempted amendment of the CUA by the MMPA is therefore unconstitutional.

The Court of Appeal held that the numerical limit provisions can be severed without affecting the validity of the rest of the MMPA. It also concluded that Phomphakdy’s conviction must be reversed.

County of San Diego

The County of San Diego and the County of San Bernardino (collectively, “Counties”) contended that the MMPA is preempted by federal law and is also unconstitutional. In particular, Counties challenged the obligation that the MMPA imposes on them to implement a program to provide identification cards to those who qualify for exemption from the California statues that criminalize certain conduct relating to the medical use and possession of marijuana. The MMPA requires counties to provide applications to state identification card applicants, review, process, and approve applications, and issue state identification cards to qualified persons.

The court declined to analyze whether the MMPA and the CUA in their entirety are preempted by federal law. The court held that it would only analyze the portions of the MMPA that impose obligations on Counties, which are the portions that require counties to adopt and operate the state identification card system.

Under the Federal Controlled Substances Act, marijuana is generally prohibited. However, the Controlled Substances Act “does not compel states to impose criminal penalties for marijuana possession.” The MMPA imposes the state identification card program on counties to identify “those against whom California has opted not to impose criminal penalties” and does not positively conflict with the Controlled Substances Act. The court also concluded that “the fact that California has decided to exempt the bearer of an identification card from arrest by state law enforcement for state law violations does not invalidate the identification laws.”

The court also concluded that the portions of the MMPA that impose the identification card system on counties do not amount to an amendment of the CUA. The identification card system created by the MMPA “is a discrete set of laws designed to confer discrete protections under California law that the CUA does not provide without limiting the protections the CUA does provide.” The MMPA exempts a person possessing an identification card “from liability for other controlled substance offenses not expressly made available to medical marijuana users under the CUA.” The MMPA does “not add statutes or standards to the CUA, but instead amounts to a “separate legislative scheme” which provides “separate protections for persons engaged in the medical marijuana programs.” The court found that the MMPA “in effect, amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA.”