MEASURE B PLANT LIMITS CAN'T BE ENFORCED, JUDGE RULES

Newshawk: California NORML www.canorml.org
Pubdate: Fri, 15 Aug 2008
Source: Ukiah Daily Journal, The (CA)
Copyright: 2008 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581
Author: Ben Brown, The Daily Journal
Referenced: People v. Kelly http://www.canorml.org/news/kellyruling.html
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/topic/SB+420



Less than three months after it was approved by voters, one section
of the contentious medical marijuana initiative Measure B has been
stayed by the court.

Mendocino County Superior Court Judge John Behnke ruled last week
that the medical marijuana plant limits set forth in Measure B cannot
be enforced because they are unconstitutional in light of the ruling
by the California Appellate Court in People v. Kelly.

"If the Kelly decision stands, Measure B's specific limits on the
amount of marijuana a qualified patient or his primary care giver may
possess constitute an amendment of the CUA (compassionate use act),
without consent of the statewide electorate and the specific limits
section of the new ordinance is therefore unconstitutional," Behnke
wrote in his ruling.

Measure B, which was approved by voters in June, set medical
marijuana possession limits in Mendocino County at six mature or 12
immature plants and eight ounces of marijuana, the same as the state limits.

Those limits were enacted by the California Legislature in Senate
Bill 420, which amended the voter-approved CUA which legalized the
possession of marijuana for medical purposes, but contained no
possession limits.

The limits set forth in SB 420 were found to be unconstitutional by
the California Appellate Court in May of this year. The appellate
court ruled that the Legislature cannot amend an initiative like the
CUA unless the initiative gives the Legislature the authority to do
so. According to the Kelly ruling, the CUA does not give that authority.

"The limits section of Measure B seeks to modify the CUA in the same
terms that Kelly found to be an unconstitutional amendment of the
CUA," Behnke wrote in his ruling.

Behnke found that if the state Legislature cannot amend a statewide
initiative with a proposition, then Mendocino County cannot amend the
initiative with a local ordinance or initiative.

The effect of Measure B as it relates to plant counts will remain
stayed unless and until the Kelly decision is overturned, Behnke said
in his ruling. The California Supreme Court announced Wednesday that
it would be reviewing the decision but did not set a hearing date.

In addition to setting medical marijuana limits, Measure B also
repealed Measure G, which was approved by Mendocino County voters in
2000 and instructed law enforcement to make the prosecution of anyone
growing 25 or fewer marijuana plants the lowest possible law
enforcement priority.

Behnke said that portion of Measure B would stand.