CALIFORNIA’S MEDICAL MARIJUANA ID CARD PROGRAM IS NOT UNCONSTITUTIONAL
August 4, 2008
On July 31, 2008, the California Court of Appeal ruled, in County of San Diego v. San Diego NORML, that the requirement of the Medical Marijuana Program (“MMP”), that counties provide medicinal marijuana identification cards to qualified patients, did not violate the Federal Controlled Substances Act (“CSA”). The MMP was created, pursuant to SB 420, to assist in the implementation of Proposition 215.
The case was initiated by the counties of San Bernardino, Merced, and San Diego when they challenged the constitutionality of the MMP, arguing that the CSA preempted California’s medical marijuana law. The trial court rejected the counties’ argument holding that the law neither conflicted with, nor posed a significant obstacle, to the CSA. San Bernardino and San Diego counties appealed the trial court’s determination.
While the counties’ initial lawsuit was a wholesale attack on the constitutionality of the MMP, the Court of Appeal significantly limited the scope of issues on appeal. The Court decided that the counties only had standing to challenge those provisions of the MMP which imposed duties and/or obligations on the counties. As such, the sole issue properly before the court was whether the MMP requirement, that counties provide identification cards to qualified users, conflicts with, and was preempted by, federal law.
Preemption
Normally if there is a conflict between a federal law and a state law, the federal law will prevail. As the Court noted, “the supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law. State law that conflicts with a federal statute is ‘without effect.’ ”
The Court noted that “the California Supreme Court has identified ‘four species of federal preemption: express, conflict, obstacle and field.” The parties agreed that Congress did not indicate an intent “to occupy the field” involving marijuana “to the exclusion of any State law on the same subject,” thereby indicating that it “intended to reject express and field preemption of state laws concerning controlled substances.”
“Conflict preemption will be found when ‘simultaneous compliance with both state and federal directives is impossible.” The Court noted that in order for the MMP’s identification card program to be preempted by federal law there would have to be a positive conflict between the state and federal law.
A positive conflict exists where state and federal laws “cannot consistently stand together” or where “compliance with both federal and state regulations is a physical impossibility.” In rejecting the counties’ argument that such a conflict exists, the Court noted:
“Counties appear to argue there is a positive conflict between the identification laws and the CSA because the card issued by a county confirms that its bearer may violate or is immunized from federal laws. However, the applications for the card expressly state the card will not insulate the bearer from federal laws, and the card itself does not imply the holder is immune from prosecution for federal offenses; instead, the card merely identifies those persons California has elected to exempt from California’s sanctions. Because the CSA law does not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California has opted not to impose criminal penalties does not positively conflict with the CSA.” (Emphasis added.)
MMP Violations of the CSA
The Court held that the counties failed to identify any provisions of the CSA which are violated when counties issue the ID cards called for under the MMP. “The identification laws obligate a county only to process applications for, and maintain records of, and issue cards to, those individuals entitled to claim the exemption [from prosecution under state law].”
The Court points out that the “CSA law does not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California has opted not to impose criminal penalties does not positively conflict with the CSA.”
The Court noted, further, that the County of San Diego cited numerous parts of the MMP which “contain a variety of provisions allegedly authorizing or permitting persons to engage in conduct expressly barred by the CSA…. However, none of the cited subdivisions are contained in the statutes that Counties have standing to challenge….”
HOW THIS AFFECTS YOUR AGENCY
This is an unsurprising and very limited decision. It must be emphasized that the sole issue decided on appeal was that the medicinal marijuana identification card program is not preempted by federal law. For county governments, the opinion confirms its obligation, under California law, to provide identification cards to qualified users who apply for them.
For city and county law enforcement, there is now a need to recognize the identification card program, and the use of the cards by qualified users. The ID card program merely provides “a mechanism allowing California citizens, if they so elect, to obtain a form of identification that informs state law enforcement officers and others that they are medically exempted from the state’s criminal sanctions for marijuana possession and use.”
The Court ruled that “the identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA. The purpose of the CSA is to combat recreational drug use, not to regulate a state’s medical practices.” As such, and unless the California Supreme Court rules to the contrary, the MMP identification card program is not in violation of federal law.
As always we urge you to confer with your agency’s legal advisor to secure guidance in complying with new decisions, in order to reduce the potential for liability. If you wish to discuss this case in greater detail please feel free to contact Martin Mayer at mjm@jones-mayer.com or at (714) 446-1400.