Kelly Hearing News

Opposing Parties in Agreement on Pot Case Before Calif. Supreme Court

Mike McKee
The Recorder

November 03, 2009

Students at the University of California, Berkeley, will get to see
something rare when the California Supreme Court holds oral arguments on
campus Tuesday -- a case in which the opposing parties pretty much agree
on the issues.

How the seven justices react to that could be interesting, if not
downright amusing. Maybe it should be called oral agreement, not
argument.

In court documents, both Santa Clara University School of Law professor
Gerald Uelmen, who represents the defendant, and Los Angeles-based
Deputy Attorney General Michael Johnsen, representing the state, agree
that legislators didn't have the power to amend Proposition 215 -- the
voter-backed 1996 ballot measure that OK'd medical marijuana -- to set
limits on the amount of pot "qualified patients" could possess.

But, they say, again in agreement, that doesn't invalidate the statute
-- Health & Safety Code §11362.77 -- from establishing limits that
could be set for individuals with valid identification cards immunizing
them from arrest under the state's Medical Marijuana Program.

"We both want to preserve the registration card system," Uelmen said in
a telephone interview Monday, "and I think we just have a slight
disagreement about the most efficient way to do that. We're both urging
the court in the same direction."

Uelmen, who has followed the high court for years and has argued before
it in the past, said he doesn't recall a case in which there was such a
lack of adversarial stances.

Johnsen didn't return a call seeking comment.

Patrick Kelly was arrested at his Los Angeles County home after officers
found seven marijuana plants and 12 ounces of dried pot. He had a
physician's recommendation, but was charged with cultivation of
marijuana and possession for sale.

At trial, Kelly presented the medical-use defense allowed under the
Compassionate Use Act, originally Prop 215 and now codified as Health &
Safety Code §11362.5. But prosecutors argued that §11362.77 -- the
program adopted by legislators in 2003 -- limited Kelly's defense under
the CUA by capping the amount of pot that could be possessed to eight
ounces of dried product and six immature or 12 mature plants.

Jurors found Kelly guilty of cultivation of marijuana and possession of
less than 28.5 grams.

Los Angeles' Second District Court of Appeal overturned Kelly's
conviction after holding that the state Legislature didn't have the
authority to amend a voter-enacted ballot initiative. The quantity
limits set by legislators were unconstitutional, the court held.

In court documents, the AG's office concedes the Second District was
right, but said it went too far by completely eliminating the
identification program.

"The very core of the MMP [Medical Marijuana Program] is the
identification card program," Johnsen wrote. "And without possession
limits, medical marijuana patients have little incentive to volunteer
for the cardholder program, and law enforcement has no clear guidance in
identifying legitimate medical marijuana users."

Uelmen agreed in his own papers, arguing that the Medical Marijuana
Program created "an entirely new program of protection" for pot patients
and, as applied in that context, didn't amend the Compassionate Use Act.

"There can be little doubt," he wrote, "that, despite the
unconstitutionality of applying quantitative guidelines to all qualified
patients, the application of these quantity guidelines to voluntary
participants in the identification card system established by the MMP
would fully accord with both the legislative intent and the intent of
the governor."

The AG's office argued that the unconstitutional part of the amendment
could be severed or judicially reformed by the Supreme Court to make it
constitutional, thereby preserving the ID program and its limits on
cultivation and possession.

Uelmen agreed. "Either course would implement the clear intention of the
Legislature, " he wrote.

People v. Kelly, S164830, is one of five cases the Supreme Court will
hear Tuesday as part of a special outreach session at UC-Berkeley School
of Law's Booth Auditorium at 2778 Bancroft Way. Special sessions in the
past have been held in Anaheim, Fresno, Palm Desert, Redding, San Diego,
San Jose, Santa Barbara and Santa Rosa.

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Agreement_on_ Pot_Case_ Before_Calif_ Supreme_Court