Vol. 23 No. 10- Statutory Limit On Medical Marijuana Is Unconstitutional

May 27, 2008

In 1996 California voters approved Proposition 215, the Compassionate Use Act [CUA], which granted limited immunity from criminal prosecution of those who possessed and used marijuana, if they qualified as medical users.

On May 22, 2008, the California Court of Appeal, Second Appellate District ruled, in People v. Kelly, that part of  SB 420 was unconstitutional.  SB 420 was passed in 2003, established the Medical Marijuana Program (MMP) which sought to address additional issues that were not included within Prop. 215, and added section 11362.7 et seq. to the Health and Safety Code,

In the Kelly case, the Court stated that the provision contained in the MMP, which placed a limit on the amount of marijuana a qualified “patient” can possess, is unconstitutional since it amended the initiative without a vote of the people.  A part of the MMP, H&S sec. 11362.77, “establishes the amount a qualified patient or primary caregiver may possess; namely, no more than eight ounces of dried marijuana plus six mature or twelve immature plants.”

However, Prop. 215 defines the amount of marijuana one may have as that amount needed for the “personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”  There is no specified limitation on the amount – the amount required is, and will be, a question of fact based on an individual patient’s needs.  Therefore, the implementation of the SB 420 modified the initiative in a fashion that changed it’s purpose and/or intent.

Initiatives Cannot Be Amended Without the Approval of the People.

The California Constitution provides that “the Legislature may amend or repeal referendum statutes … only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”  The Court points out that “the CUA does not grant the Legislature the authority to amend it without voter approval.  Therefore, if section 11362.77, which was enacted without voter approval, amends the CUA, then it is unconstitutional.”

The court explains that “an amendment is any change of the scope or effect of an existing statute…,” or in this case the initiative.  It also states that “when deciding whether a legislative act amends an initiative, we must keep in mind that “it is the duty of the courts to jealously guard [the people’s initiative and referendum power]….”  In other words, “a statute which adds to or takes away from an existing statute is considered an amendment.”

The Court notes that “the CUA does not place a numeric cap on how much marijuana is sufficient for a patient’s personal medical use.  Section 11362.77, however, does just that.”  The Court further states that “section 11362.77…has clarified what is a reasonable amount for a patient’s personal medical use, namely, eight ounces of dried marijuana.  But clarifying the limits of ‘reasonableness’ is amendatory.”

Other provisions of the MMP, however, are acceptable to the court since they do not alter or modify the intent of the initiative.  The creation of the voluntary identification card program, for example, is seen as assisting in carrying out the purpose or intent of the initiative and, therefore, is not an improper amendment.

The Legislature Recognized Its Own Error

The Court notes that in 2004 “the Legislature itself recognized it had overstepped its bounds in imposing the cap (of eight ounces and the number of plants).”  SB 1494 was introduced in order to amend “section 11362.77 by, among other things, deleting the eight-ounce and plant limits….”

The Bill was vetoed by Governor Schwarzenegger, and he cited the “concern that the bill removed ‘reasonable and established quantity guidelines.’  That may be a valid concern.  Nevertheless, it is a concern that cannot be addressed by the Legislature acting without the voter’s approval.”  The Court then states that “…section 11362.77 … must be severed from the MMP.”


Under California law, if one has a county issued ID card, identifying that person as a qualified medical user of marijuana, there is a presumption that they are in lawful possession of the drug.  However, the Court notes in a footnote that “the CUA does not give patients a free pass to possess unlimited quantities of marijuana.  Rather, the rule should be that the quantity possessed by the patient or primary caregiver, … should be reasonably related to the patient’s current medical needs.”  How does an officer know that is the case?

The Court implies that if a qualified patient or primary caregiver has a physician’s recommendation for a specified amount, that could assist law enforcement in reaching a conclusion regarding a person’s “lawful” possession of marijuana.    The Court also reinforces prior court rulings that “the CUA does not grant immunity from arrest.  It grants limited immunity from prosecution.”

Prior to this decision an officer knew that possession of eight ounces or less was, at least, authorized by state law, if the person in possession was a qualified medical user.  Now, the authorized amount is very unclear since it depends on the “individual patient’s needs.”

The decision in this case, continues to “muddy the waters” for law enforcement in terms of how to deal with one in possession of marijuana who claims the medical exemption.  At this point in time, we would urge that law enforcement agencies provide their officers with guidance, based on legal advice from their agency’s legal counsel, on
when and under what circumstances officers should cite and/or arrest the person and seize the marijuana, and when they should not.

 As always, we urge communication with your legal counsel but in particular as a result of this court decision.  If you wish to discuss the matter in greater detail, please feel free to contact me at (714) 446 – 1440 or via e-mail at mjm@jones-mayer.com.