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Blowing Smoke: Proposition 19 & Medical Marijuana

Yesterday, I drove to downtown San Francisco — something which, on a weekday, is definitely not on my list of favorite things to do — to the Hiram W. Johnson State Building for a meeting of the Voluntary Committee of Lawyers. The topic of discussion was Marijuana & Federalism: California a Test Case: The Legal Implications of Proposition 19.[1]

The meeting was somewhat informative, but when it came to addressing questions of significant concern to my medical marijuana clients, I guess I’d have to say there was a lot of smoke being blown — and it didn’t come from any high-quality buds.

The meeting was, in many senses, quite informative. Speakers included Assemblymember Tom Ammiano from the 13th District of California, a number of attorneys working for various organizations that deal with drug policies, and even the Sheriff of Mendocino County, Thomas D. Allman.

One question that did not receive a full answer, though, had to do with the intersection of Proposition 19 and California’s current medical marijuana laws. I attempted to ask the question, but I stood up too late. I was waiting, under the erroneous assumption that someone would address this important issue without provocation. However, once I realized that the mantra of the people presenting was that Proposition 19 was either not going to impact medical marijuana users, or that it would improve things for them, and that apparently they subscribed to the theory that if you repeat something often enough, that alone makes it true, I decided to ask my question.

As I said, though, I was too late; I didn’t get the chance to pose my question publicly.

Fortunately — or so I thought — Richard Lee, the so-called “grandfather of the medical marijuana movement,” was present. Surely, he can answer my question.

I stopped Mr. Lee as we were leaving the meeting. I introduced myself. He shook my hand and I asked my question. “How will Proposition 19’s proposed limitations on amounts people can own or cultivate impact current medical marijuana laws?” Perhaps — and based on the responses of Mr. Lee and the two people accompanying him, I suspect this is the case — he’s grown tired of hearing this question. Perhaps he was in a hurry. Maybe he just always comes across as irritated and angry.

Perhaps he just needed to chill and toke before being able to fully appreciate my question. I don’t know. I’m just trying to be charitable.

Suffice it to say that Mr. Lee immediately began trying to move on, as he barked out that the language of the initiative, wherein it states, “Notwithstanding any other provision of law…,” meant that Proposition 19 would not negatively impact existing laws.

A woman accompanying him, who I believe may have been Christine Wagner, smilingly shoved some cards at me and referred me to “the FAQ on our website” for more information.

The card indicates Christine Wagner is a lawyer, which gave me hope, because surely an attorney would not point me to an answer that wasn’t an answer, would she? Well, maybe!

Not. The most comprehensive answer I can find on the website is nothing more than a slightly-more-clear restatement of the same bald assertions barked at me by the retreating and muttering Mr. Lee.

I’m sure you can tell I not only felt I did not get an answer to my question, but I was almost as irritated by the encounter as Mr. Lee.

The problem here, though, is not — or at least not so much — that I felt I was given a rather rude brush-off. The problem, as I said, is that the FAQ provides no more information than was shouted over their shoulders as Mr. Lee’s group hustled down the street. Mr. Lee appeared to be angrily muttering about “these questions.” He’s obviously grown tired of them.

“These questions,” however, are important. The way Proposition 19 reads, “these questions” are not addressed. In fact, Proposition 19 appears to be capable of undoing all the work those promoting medical marijuana have done to enable patients to receive their medication without suffering consequences under California’s criminal laws.

I think it’s quite likely that Proposition 19 will trump California’s medical marijuana laws and allow local municipalities to apply restrictions that, thus far, they have been blocked from implementing by the combination of the Compassionate Use Act and the California Supreme Court.

Here’s why:

Mr. Lee and his compatriots tried to say — in the few words they threw my way — that Proposition 19 is worded to ensure that it does not impact existing law. (I have to take it that they meant “existing medical marijuana law,” because obviously it impacts existing law. That’s the whole point. If it didn’t impact existing law, it wouldn’t “legalize marijuana.”)

In fact, Proposition 19 is replete with language that says, “Notwithstanding any other provision of law….” Mr. Lee & Co. apparently believe, based on what they told me, that “notwithstanding any other provision of law” means that if there are other laws, those other laws are not overruled, altered, erased, modified — choose your poison: they say it’s not poisonous.

Anyone who doesn’t already know the meaning of “notwithstanding” can see that this is wrong merely by grabbing the nearest dictionary. According to Webster’s Third International Dictionary, Unabridged (2002), for example, the word means “without prevention or obstruction from or by : in spite of.”

With respect to some parts of Proposition 19, this is not necessarily a problem. In particular — and I think this is what Mr. Lee & Co. focus upon (too much) — the proposed addition of section 11300 to Article 5 of Chapter 5 of Division 10 of the Health & Safety Code probably does not encroach upon the rights of medical marijuana users. The reason for this depends not upon the “notwithstanding” language to which Mr. Lee & Co. tried to point me, but because the words following say, “it is lawful and shall not be a public offense under California law….”

In other words, section 11300 essentially says, “Here are some things that will be legal.” The “notwithstanding” language has the effect of adding, “regardless of what any other law might state.” So, take Health & Safety Code § 11357 which says,

Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).

If Proposition 19 passes, this would no longer be true, because Proposition 19 says,

Notwithstanding any other provision of law, it is lawful and shall not be a public offense…to possess, process, share or transport not more than one ounce of cannabis solely for that individual’s personal consumption, and not for sale.

Assuming it passes, Proposition 19, being the newer law, trumps 11357 on this issue. That’s a good thing, because that’s what we want it to do. Additionally, Proposition 19’s proposed section 11300 addition does not trump the medical marijuana laws because while 11300 basically says “regardless of what any other law says, these things are legal,” it does not say, “only these things are legal.” In other words, 11300 provides a list of some things that are legal, regardless of whether some other law says they are not. But it’s not necessarily the only way that things can be legal. Lots of other things, including things allowed by the medical marijuana laws, can be legal, too.

Thus, the problem isn’t with Proposition 19’s proposed addition of section 11300 to the Health & Safety Code.

There is potentially a significant problem, however, with Proposition 19’s proposed addition of section 11301. Ironically, the reason is that same “notwithstanding any other provision of state or local law” phrase in the proposed language. The entire relevant portion says:

Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit or otherwise authorize, with conditions, the following….

Remembering the meaning of “notwithstanding any other provision of state…law,” this means “in spite of what the medical marijuana laws say, a local government may” potentially adopt restrictive rules as pertains to certain activities. The listed activities are all the activities one needs to carry out in order to obtain, or grow, or consume medical marijuana.

Right now — at least the way I read the law — local governments cannot effectively eliminate the protections of the medical marijuana laws by passing local ordinances that “control” or “regulate” them. If they did, I think many such ordinances would arguably constitute impermissible amendments to the Compassionate Use Act passed by the People via the initiative process — something no California government can do.[2] Thus, rules that some counties are passing in an attempted end-run around medical marijuana laws are probably unenforceable because they are contrary to the Compassionate Use Act, the Medical Marijuana Program Act, or both.[3]

Tulare County, for example, has passed such limiting ordinances. Some of these ordinances have not yet been tested in court, but other portions of the Tulare County ordinances are already illegal and thus unenforceable. For example, the ordinances include limitations on quantities of marijuana which may be possessed or cultivated. But the California Supreme Court has already determined that this constitutes an impermissible amendment to the Compassionate Use Act.[4]

Proposition 19, however, will allow local governments to do what the Compassionate Use Act currently forbids them from doing. Why? Because the Compassionate Use Act was enacted into the law by initiative: Proposition 215. Initiatives can only be changed by the government if the initiative itself either expressly permits that, or if the Constitution is changed in some way as to alter the initiative process. Thus, any California government is, by law,

powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c).[5]

However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives.[6] Well, guess what? Proposition 19 is an initiative, also! So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.

Let me be clear about something. I’m not trying to play “hide the ball bud” here. There is an argument against what I just said. One could argue that 11301 says “control, license, regulate, permit or otherwise authorize, with conditions,” and that it does not say, “forbid, prohibit, or prevent.” One can also argue that allowing local governments to place restrictions on medical marijuana would violate the intent of the laws, because “clearly” Proposition 19 is intended to loosen up, or liberate, marijuana from the strictures of State prohibitions. “Clearly,” with this as the intent, it would not make sense to read Proposition 19 as allowing local governments to “control” or “regulate” or place unreasonable “conditions” on medical marijuana patients, or their caregivers.

Myself, I’m not comfortable sitting around hoping that local governments “clearly” understand this. I happen to think a well-written Proposition to legalize marijuana should explicitly state that it cannot be read in a way that restricts current medical marijuana laws. But that’s me. And I don’t smoke pot, so maybe what I think doesn’t count.

I guess another way to see how this plays out is to vote “yes” on Proposition 19. And then just wait until the smoke clears.

  1. At the time of this blog post, the VCL main page advertised the conference, so I linked it. As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was.
  2. People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186].
  3. Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law. (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].)
  4. People v. Kelly, supra, 47 Cal.4th at 1043.
  5. People v. Kelly, supra, 47 Cal.4th at 1045-1046.
  6. Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].