People v. Kelly:
Quantity Limits to California's Medical Marijuana Law Held Unconstitutional.

The legislature's enactment of quantity limits on California's medical marijuana law in 2003 constituted an unconstitutional amendment of the voter-passed Compassionate Use Act, the Second District Court of Appeal held today in the remarkable case of People v. Kelly.

To view actual court case document please click on case number B195624

The basic legal framework of this case was that California voters passed the Compassionate Use Act in 1996. That law was pretty vague, and did not have any quantity limits in it. Later, in 2003, the legislature passed another law called the Medical Marijuana Program. That law was more specific, and in Health and Safety Code section 11362.77 it also established limits to the amount of marijuana that an individual could possess while claiming an affirmative "medical" defense to prosecution for possessing, transporting, or cultivating marijuana. In passing this law, however, the legislature was running up against a provision of the California Constitution that says that an initiative statute -- such as the Compassionate Use Act -- can not be amended by the legislature without the approval of the voters. In other words, the legislature did not have the power to reduce the scope of the affirmative defense created by the voters.

The court in Kelly writes:

In this case, we do not think that section 11362.77 may amend the CUA. It clearly does. The CUA provides that the offenses of possession and cultivation of marijuana shall not apply to a patient who possesses or cultivates marijuana for his or her personal medical purposes upon the recommendation or approval of a physician. (§ 11362.5, subd. (d).) The CUA does not quantify the marijuana a patient may possess. Rather, the only “limit” on how much marijuana a person falling under the Act may possess is it must be for the patient’s “personal medical purposes.”9 (Ibid.)

Deleting the quantity limits in the manner suggested by Senate Bill No. 1494 would have corrected the constitutional problem created when the Legislature enacted the MMP without voter approval. Governor Schwarzenegger, however, vetoed the bill, citing a concern that the bill removed “[r]easonable and established quantity guidelines.” (Governor Arnold Schwarzenegger, letter to the Members of the California State Senate resend. Bill No. 1494, July 19, 2004.) That may be a valid concern. Nevertheless, it is a concern that cannot be addressed by the Legislature acting without the voter’s approval. We therefore now hold that section 11362.77 unconstitutionally amends the CUA, and it must be severed from the MMP.

While there is absolutely no question that the Attorney General will petition for review of this decision, this is a major, major legal victory for the California medical marijuana movement. It also happens to be the legally correct outcome, and I think there are good odds that it will survive review. Cheers to Gloria Cohen, the attorney for Kelly.