Vol. 23 No. 6- Re: City of Garden Grove v. Superior Court (Kha)

Re:  City of Garden Grove v. Superior Court (Kha)
March 20, 2008

Unfortunately, but not unexpectedly, the California Supreme Court denied the City of Garden Grove’s petition for review of the cited case.  The Court also denied the request to depublish the opinion of the Court of Appeal.  Only one member of the Court, Justice Marvin Baxter, was of the opinion that the petition for review should have been granted.

As most of you will remember, this case involves an order by a superior court judge to a Garden Grove police officer to return marijuana to a defendant after the case was dismissed pursuant to California’s Compassionate Use Act (CUA).  The City courageously fought the order on the basis that it was an illegal order, since the return of the marijuana would be in violation of federal law.  The City did not challenge the constitutionality of Proposition 215, only the court’s order to return the drug (which is not required under the CUA).

The office of Jones & Mayer had filed an amicus brief from the California State Sheriffs’ Association, the California Police Chief’s Association, the California Peace Officers’ Association, the California District Attorneys Association, and sixteen (16) individual municipalities, supporting the City’s argument.  We urged the Court to set aside the judge’s order because it “…is not only legally improper, it would undermine police morale and effectiveness and send the wrong message to local law enforcement officers who are involved in the interdiction of illegal drugs.”

California’s Attorney General also filed an amicus brief but it supported the court’s order to return the drug.  The Court of Appeal stated that, “contrary to the Attorney General’s position, these local law enforcement associations urge us to overturn the trial court’s ruling.”  However, the Court of Appeal held that “…we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound …” to return the drug to Kha.

It was hoped that the California Supreme Court would accept the case for review or, if not, at least depublish it so it couldn’t be cited in future cases.  That did not happen.  This office again filed an amicus letter supporting the City and urging the Supreme Court to accept the case for review.  Unfortunately, that effort proved to be unsuccessful.


Obviously, there is no where else to go in the California judicial system – the Supreme Court is the last stop.  It is possible, however, to now proceed to the federal courts in an effort to seek help in dealing with this incredible conflict in law.  Only the City can make that decision and no one could blame them if they decide to not proceed – but only time will tell.

As it stands right now, however, this is the law of California.  It is important to remember that the decision in Garden Grove is based on a court’s order to return the marijuana, it does not require its return absent such an order.  In addition, in a recent decision, Ross v. Ragingwire Telecommunications, Inc., the California Supreme Court reiterated that marijuana is still an illegal drug and that Proposition 215 merely created a defense against prosecution for those who can prove that they have been advised by a licensed physician to use the drug as medicine.  It appears, therefore, that before returning the drug, it is appropriate to require the subject to secure a court order, after he or she proves that he/she is a qualified medical user and has a doctor’s recommendation for its use.

As always, it is important to seek advice from your agency’s legal counsel on legal issues.  Nonetheless, if you wish to discuss this decision in greater detail, please feel free to contact me at 714 – 446-1400 or via e-mail at mjm@jones-mayer.com.