Supreme Court to consider marijuana limits

By Linda Williams/TWN Staff Writer
Article Launched: 08/20/2008 02:40:30 PM PDT


Last Wednesday the California Supreme Court unanimously agreed to hear the case of California vs Patrick Kelly to determine whether any limits imposed by the legislature to the Compassionate Use Act is constitutional.

While the California Supreme Court takes up the issue, the existing limits in the California Health and Safety Code remain in effect throughout much of California. For Mendocino County, the limits are a bit murkier as the ongoing legal challenge to the portion of Measure B, which had the county adopt the state limits may await the final Supreme Court decision.

Superior Court Judge John Behnke in his August 8 decision on the challenge to the Measure B limits ruled "if the state legislature cannot amend a stat law passed by initiative (the Compassionate Use Act) by passing specific legislation certainly the electorate of a county can't amend a statewide initiative by passing a local ordinance or initiative."

While this decision was made prior to the Supreme Court accepting the Kelly case for review, Behnke cited the more recent appeals court ruling from July 31 of California vs Phomphakdy as raising similar issues to the Kelly case although it cannot be cited for 30 days and also may be accepted by the Supreme Court for further review.

The Behnke decision leaves the county effectively without any new guidelines for law enforcement, although the statewide limits appear to serve as a minimum protection for medical marijuana users, at least until the Phomphakdy case either becomes law on August 30 or is accepted for Supreme Court review.

A review of California vs. Patrick Kelly:

A Los Angeles County medical marijuana case, which most agree would never have seen a courtroom in Mendocino County, has raised questions on whether any limits imposed by the legislature to the Compassionate Use Act is constitutional.

The Court of Appeal in the case of California vs. Patrick Kelly ruled limits on medical marijuana possession imposed by the Health and Safety Code to be unconstitutional. In July, the state Attorney General petitioned the state Supreme Court to review the case. On August 13, the Supreme Court agreed to hear the case, leaving in place the current provisions of the Health and Safety Code.

In California vs. Patrick Kelly, the appeals court overturned Kelly's 2006 conviction for possession of more than an ounce of marijuana for which he received a sentence of 2 days in jail and 3 years probation. The jury was asked, but declined, to convict Kelly of possession and cultivation of marijuana for sale.

A summary of the case reveals a substantially different prosecutorial atmosphere in Los Angeles County than prevails in Mendocino County. According to court records, Kelly suffers from several ruptured vertebrae causing severe back pain, as well as mood disorders, hepatitis, nausea and lack of appetite, which he had tried treating with epidurals, pain therapy, hot and cold braces, nerve stimulators and medication. Dissatisfied with this treatment plan, in part due to the cost of pain management pills, Kelly sought a recommendation to use marijuana, which he received in 2005.

Unable to afford marijuana from a dispensary, Kelly began growing a few plants at his home, consuming between one and two ounces per week.

Based on a tip from an informant and the visibility of some pot plants in the backyard, law enforcement officers obtained a search warrant for Kelly's home and confiscated 12 ounces of processed pot stored in 2-ounce baggies, seven potted marijuana plants, a loaded gun in the nightstand and a scale. Kelly had taped a copy of his valid medical marijuana recommendation to the garage door including a phone number where it could be verified 24 hours a day, keeping the original copy in his bedroom. The deputy called and verified the validity of the recommendation. One plant had a homemade trip wire constructed from Christmas wrapping and bells.

Because Kelly had about 4 ounces more marijuana than allowed under the California Health and Safety Code and did not have a special doctor's recommendation to exceed the code amount, he was arrested for cultivation and possession of marijuana for sale. The charges were filed despite the lack of any evidence associated with the sale of marijuana such as nickel and dime bags, pagers, cell phones, pay-owe sheets, money, safes or elaborate growing systems at the Kelly residence. Kelly denied ever selling marijuana.

The case went to a jury trial. During the trial, according to the appeal, the prosecutor improperly instructed the jury that because the Health and Safety Code set an eight-ounce possession maximum for medical marijuana, the possession of more, which was not specifically authorized by a recommendation, was illegal. The case was overturned and a new trial ordered.

Although the court also declared the current Health and Safety Code limits unconstitutional, when the Supreme Court agreed to take up the case, that declaration was set aside pending the outcome of a future Supreme Court ruling.


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