J&M JONES&MA YER LEAGUE OF CALIFORNIA CITIES 2010 CITY ATTORNEYS' SPRING CONFERENCE. Key Case Decisions Regarding Medical Marijuana

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1 J&M JONES&MA YER ATTORNEYS AT LAW 3777 NORTH HARBOR BOULEY ARD FULLERTON, CALIFORNIA (714) (562) FAX (714) LEAGUE OF CALIFORNIA CITIES 2010 CITY ATTORNEYS' SPRING CONFERENCE Key Case Decisions Regarding Medical Marijuana Santa Barbara, CA May 5-7,2010 By: Martin J. Mayer Jones & Mayer

2 TABLE OF CONTENTS THE COURT TO CALIFORNIA COPS: "GIVE BACK THE DOPE"... 3 SMOKING MEDICAL MARIJUANA CAN COST YOU YOUR JOB... 6 "CALIFORNIA'S MEDICAL MARIJUANA ID CARD PROGRAM IS NOT UNCONSTITUTIONAL"... 8 A. G. GUIDELINES REGARDING MEDICAL MARIJUANA CALIFORNIA SUPREME COURT DEFINES "PRIMARY CARE GIVER" UNDER MEDICAL MARIJUANA LAW "MEDICAL MARIJUANA PATIENT CAN SUE FOR VALUE OF DESTROYED MARIJUANA" MEDICAL MARIJUANA DISPENSARIES MUST MEET "PRIMARY CARE GIVER" REQUIREMENTS NO LIMIT ON AMOUNT OF MEDICAL MARIJUANA A QUALIFIED PATIENT CAN POSSESS VITA MARTIN J. MA YER

3 THE COURT TO CALIFORNIA COPS: "GIVE BACK THE DOPE" December 3, 2007 On November 28, 2007, the California Court of Appeal (Fourth Appellate District) ruled, in the case of City of Garden Grove v. Superior Court of Orange County (Kha), that once a charge of possession of marijuana has been dismissed by a court, pursuant to Proposition 215, the arresting agency must return the property to the person charged with the possession. Following a traffic stop of Felix Kha the police seized approximately one third of an ounce of marijuana, for which he had a doctor's recommendation. As a result, the prosecutor dismissed the possession charge and the court ordered the return of the marijuana. The City challenged the order on the basis that such action would violate the federal law. The City did not challenge the constitutionality of Proposition 215; it merely challenged the court's order to return the drug. The firm of Jones & Mayer filed an amicus brief on behalf of the California State Sheriffs' Association (CSSA), the California Police Chiefs Association (CPCA), the California Peace Officers' Association (CPOA), the California District Attorneys Association (CDDA), and sixteen (16) individual California cities, supporting the position of Garden Grove. The Court of Appeal points out that,... the Attorney General of California sought leave to file an amicus curiae brief (on behalf of Felix Kha)." The Court then states, "Contrary to the Attorney General's position, these local law enforcement associations urge us to overturn the trial court's ruling." The Court continues to refer to the amicus brief by noting that law enforcement insists that "... ordering the return of Kha's marijuana 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." (Emphasis added.) Unfortunately, the Court 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. CITY VS. STATE The Court acknowledged that the "City sees itself caught in the middle of a conflict between state and federal law - a position with which we can certainly sympathize - on the issue of medical marijuana and does not want to be perceived as facilitating a breach of federal law by returning Kha's marijuana to him." The Court also noted that "the City is not contesting the right of qualified patients to use medical marijuana pursuant to state law; it just does not want to be in the position of having to return marijuana to such a patient once it has been lawfully seized by a member of its police force." (Emphasis added.) 3

4 The Court then sets forth California's position. "Siding with the trial court, the Attorney General contends: (1) the City lacks standing to challenge the [trial] court's order; (2) Kha's possession of marijuana was legal under state law; (3) state law favors the return of lawfully possessed marijuana;... " in addition to several other points. Ironically, as to the third point raised by the Attorney General, Proposition 215 does not require, nor even comment about, the return of seized marijuana (unlike the law in Oregon which does call for its return). STANDING TO SUE The Court of Appeal, reluctantly, ruled that a city has standing to challenge a state court's order to return the drug, despite the position taken by the Attorney General that it does not have standing. It notes that the state and Kha disagree with amici (the law enforcement associations and 16 cities) on this issue. The Court points out that the city is merely the custodian of property seized during an arrest and must return it if charges are dismissed and the property is not, per se, contraband. "(I)f the court determines the defendant was in lawful possession of the drugs, then they might not be destroyed at all. It is up to the court to decide whether destruction is appropriate in a given case; the police role is limited." The Court notes that "in seeking to cobble together a standing argument, the City claims the legalization of medical marijuana has contributed to a marked increase in violent crime in Garden Grove and other cities throughout the state, thereby impacting the City's citizenry and its police force." However, the Court states that the City provided no evidence to support that claim. The Court also rejects the City's argument that it would be "aiding and abetting a violation of federal law if its officers return Kha's marijuana to him." The Court held that to be guilty of aiding and abetting one must have an intent to aid in the commission of a crime and since the City, obviously, is reluctantly returning the drug, it isn't guilty of such an offense. Additionally, the Court held that the federal immunity statute [21 U.S.C. sec. 885 (d)] protects officers from federal prosecution for returning the drug because they would be "...lawfully engaged in the enforcement of [a] law or municipal ordinance relating to controlled substances." The Court concludes that, "in short, it seems the City and its police officers really have nothing to lose by returning Kha's marijuana to him. The possession charge against Kha having been dismissed, the marijuana is not needed as part of an ongoing criminal prosecution." Continuing, the Court ruled that, "simply put, it does not appear the City would be adversely affected if its officers carried out the trial court's order in this case." Nonetheless, the Court found that the City had standing to bring this action because of the conflict between state and federal law and "courts have recognized that... state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds." 4

5 RETURN OF THE MARIJUANA The Court ruled that the drug must be returned because: (1) the City is not authorized to enforce the federal law since possession of marijuana, under these circumstances, is not also a violation of state law; (2) the preemption clause of the federal constitution doesn't apply; (3) states have a "great latitude under their police powers to legislate as to the protection of the lives, limbs, comfort, and quiet of all persons;" (4) "Congress enacted the CSA [Controlled Substances Act] to combat recreational drug abuse and curb drug trafficking;" and (5) "its goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states." Therefore, ruled the Court, "it is... unreasonable to believe returning marijuana to qualified patients who have had it seized by local police will hinder the federal government's enforcement efforts." The Court held that Kha "is a qualified patient whose marijuana possession was legally sanctioned under state law. That is why he was not subjected to a criminal trial, and that is why the state cannot destroy his marijuana. It is also why the police cannot continue to retain his marijuana. Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him." If an officer stops one in possession of marijuana and seizes the drug, the drug will be returned to that person, if and when a court dismisses the underlying charge of drug possession and/or if the prosecutor refuses to file criminal charges against that person. 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 de-publish the opinion of the Court of Appeal. The U. S. Supreme Court also refused to review the case. 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. 5

6 SMOKING MEDICAL MARIJUANA CAN COST YOU YOUR JOB January 28, 2008 The California Supreme Court ruled, on January 24, 2008, in the case of Ross v. Ragingwire Telecommunications, Inc., that it does not violate one's right of privacy, nor is it discriminatory, to fire an employee who uses marijuana for medical reasons. Ross' doctor recommended marijuana to treat chronic back pain and he used it while off duty, at home. He was terminated after a pre-employment drug test came back positive for marijuana. Ross sued his employer claiming disability discrimination under the California Fair Employment and Housing Act (FEHA) and a violation of public policy. FEHA, PRIVACY AND ILLEGAL DRUGS The plaintiff argued that Proposition 215, codified as Gov. Code , the Compassionate Use Act (CUA), gave him protections under FEHA, which prohibits an employer from discriminating against a person because of a physical disability or medical condition. He argued that "just as it would violate FEHA to fire an employee who uses insulin or Zoloft, it violated [the] statute to terminate an employee who uses a medicine deemed legal by the California electorate upon the recommendation of his physician." The Court noted, however, that the CUA does not "address the respective rights and obligations of employers and employees." Furthermore, the Court ruled that the CUA did not give "marijuana the same status as any legal prescription drug," and "no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law." (Emphasis added.) The Court noted that marijuana use conflicts with the employer's policies and that "FEHA does not require employers to accommodate the use of illegal drugs." Additionally, referring to an earlier Supreme Court decision, Loder v. City of Glendale (1997) 14 Cal.4th 846, the Court stated that "the employer's legitimate concern about the use of illegal drugs... also led us... to reject the claim that pre-employment drug testing violated job applicants' state constitutional right to privacy." FEDERAL LAW AND MARIJUANA The Court made the specific point that the CUA only creates an exemption from prosecution, under California law, for those who meet the qualifications of medical users of marijuana. "California voters merely exempted medical users and their primary care givers from criminal liability..." The Court returned frequently to the fact that marijuana is illegal under federal law. "Marijuana, as noted, remains illegal under federal law... Although California voters had no power to change federal law, certainly they were free... to view the possibility of beneficial medical use as a sufficient basis for exempting from criminal liability under state law patients whose physicians recommended the drug." CALIFORNIA LAW AND MARIJUANA The plaintiff argued that by not requiring employers to accommodate the use of medical marijuana by employees, it "would eviscerate the right promised to the seriously ill by the California electorate." The Supreme Court disagreed, stating that "an employer's refusal to accommodate an employee's use of marijuana does not affect, let alone eviscerate, the immunity to criminal liability provided in the act. We 6

7 thus give full effect to the limited right to obtain and use marijuana granted in the act by enforcing it according to its terms." The Court further noted, in a footnote, that "the voters did not give medical users of marijuana complete immunity from criminal law," and went on to point out examples, such as the prohibition of driving under the influence of marijuana and possessing large quantities of the drug. The Court also identified that "the measure did not purport to change the laws affecting public intoxication with controlled substances or the law addressing controlled substances in such places as schools and parks." The Court also noted that "police officers can still arrest anyone for marijuana offenses. Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor's approval." (Emphasis in original.) One question which has been raised on a number of occasions is what can a police chief or sheriff do if an officer informs him/her that the officer is using marijuana, off duty, on the advice of a doctor? This case makes it clear that such activity is not protected and potentially subjects the officer to discipline, up to and including termination of employment. This decision also adds to the argument, made by many of us who represent law enforcement agencies, that when a superior court judge dismisses a case pursuant to Proposition 215, and then orders the arresting officer to return the marijuana to the defendant, the order violates federal law. The Supreme Court has stated, in this case, in several places, that "the drug remains illegal under federal law." Since that is true, we continue to contend that an order to return an illegal drug to a person who is not authorized to posses it, is an illegal order. 7

8 "CALIFORNIA'S MEDICAL MARIJUANA ID CARD PROGRAM IS NOT UNCONSTITUTIONAL" August 4, 2008 On July 31, 2008, the California Court of Appeal ruled, in County of San Diego v. San Diego NORML, that the requirement of the Medical Marijuana Program ("MMP"), that counties provide medicinal marijuana identification cards to qualified patients, did not violate the Federal Controlled Substances Act ("CSA"). The MMP was created, pursuant to SB 420, to assist in the implementation of Proposition 215. The case was initiated by the counties of San Bernardino, Merced, and San Diego when they challenged the constitutionality of the MMP, arguing that the CSA preempted California's medical marijuana law. The trial court rejected the counties' argument holding that the law neither conflicted with, nor posed a significant obstacle, to the CSA. San Bernardino and San Diego counties appealed the trial court's determination. While the counties' initial lawsuit was a wholesale attack on the constitutionality of the MMP, the Conrt of Appeal significantly limited the scope of issues on appeal. The Court decided that the counties only had standing to challenge those provisions of the MMP which imposed duties and/or obligations on the counties. As such, the sole issue properly before the court was whether the MMP requirement, that counties provide identification cards to qualified users, conflicts with, and was preempted by, federal law. PREEMPTION Normally if there is a conflict between a federal law and a state law, the federal law will prevail. As the Court noted, "the supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law. State law that conflicts with a federal statute is 'without effect.' " The Court noted that "the California Supreme Conrt has identified 'four species of federal preemption: express, conflict, obstacle and field." The parties agreed that Congress did not indicate an intent "to occupy the field" involving marijuana "to the exclusion of any State law on the same subject," thereby indicating that it "intended to reject express and field preemption of state laws concerning controlled substances." "Conflict preemption will be found when 'simultaneous compliance with both state and federal directives is impossible." The Court noted that in order for the MMP's identification card program to be preempted by federal law there would have to be a positive conflict between the state and federal law. A positive conflict exists where state and federal laws "cannot consistently stand together" or where "compliance with both federal and state regulations is a physical impossibility." In rejecting the counties' argument that such a conflict exists, the Court noted: 8

9 "Counties appear to argue there is a positive conflict between the identification laws and the CSA because the card issued by a county confirms that its bearer may violate or is immunized from federal laws. However, the applications for the card expressly state the card will not insulate the bearer from federal laws, and the card itself does not imply the holder is immune from prosecution for federal offenses; instead, the card merely identifies those persons California has elected to exempt from California's sanctions. Because the CSA law does not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California has opted not to impose criminal penalties does not positively conflict with the CSA." (Emphasis added.) MMP VIOLATIONS OF THE CSA The Court held that the counties failed to identify any provisions of the CSA which are violated when counties issue the ID cards called for under the MMP. "The identification laws obligate a county only to process applications for, and maintain records of, and issue cards to, those individuals entitled to claim the exemption [from prosecution under state law]." The Court points out that the "CSA law does not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California has opted not to impose criminal penalties does not positively conflict with the CSA." The Court noted, fmther, that the County of San Diego cited numerous parts of the MMP which "contain a variety of provisions allegedly authorizing or permitting persons to engage in conduct expressly barred by the CSA... However, none of the cited subdivisions are contained in the statutes that Counties have standing to challenge... " This is an unsurprising and very limited decision. It must be emphasized that the sole issue decided on appeal was that the medicinal marijuana identification card program is not preempted by federal law. For county governments, the opinion confirms its obligation, under California law, to provide identification cards to qualified users who apply for them. For city and county law enforcement, there is now a need to recognize the identification card program, and the use of the cards by qualified users. The ID card program merely provides "a mechanism allowing California citizens, if they so elect, to obtain a form of identification that informs state law enforcement officers and others that they are medically exempted from the state's criminal sanctions for marijuana possession and use." The Court ruled that "the identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA. The purpose of the CSA is to combat recreational drug use, not to regulate a state's medical practices." As such, and unless the California Supreme Court rules to the contrary, the MMP identification card program is not in violation of federal law. On October 16, 2008, the California Supreme Court unanimously denied an application for review. 9

10 AG GUIDELINES REGARDING MEDICAL MARIJUANA August 27, 2008 The California Attorney General has just released guidelines regarding California's medical marijuana law, under the authority of Health & Safety Code section (d). After the passage of Proposition 215, the Legislature passed SB 420, which created the Medical Marijuana Program Act (MMP), which was codified in the Health & Safety Code. Among other things, it required the Attorney General to generate guidelines in order to clarify the rights and obligations under the MMP. The guidelines are also intended to assist law enforcement officers and the public to understand what is, and is not, permitted under the MMP. The guidelines are designed to reduce the likelihood of medical marijuana finding its way to non-qualified patients and into the illicit market. As the guidelines were being developed, input was sought from a variety of sources, including law enforcement. As general counsel to the California Police Chiefs Association (CPCA), the California State Sheriffs Association (CSSA), and the California Peace Officers Association (CPOA) I was privileged to be consulted and to participate in their development. Although, as in virtually all matters, reasonable minds can differ regarding different issues, the Attorney General must be commended on the effort expended and the ultimate product generated. It will provide guidance and direction to all those involved with the state's medical marijuana program. SUMMARY OF THE LAW Proposition 215 was passed in 1996 and was enacted to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana." The Proposition did NOT legalize marijuana in California, but merely exempts from criminal prosecution and sanctions, under California law, those who are "qualified users" and/or their "primary care givers." As the Attorney General notes, the federal Controlled Substances Act (CSA) makes it unlawful to "manufacture, distribute, dispense, or possess any controlled substance," and that includes marijuana. However, he states that the MMP is not unconstitutional, nor does it conflict with the federal CSA, because "California did not "legalize" medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition." It is imperative to remember that marijuana is still a prohibited, controlled, substance under federal law and complying with Proposition 215 does not, in any way, protect one from prosecution by federal law enforcement. KEY PROVISIONS OF MMP The law requires the California Department of Public Health (DPH) to establish a statewide identification card system. It further mandates that all counties participate in the program by, among other things, issuing the DPH identification cards. Those cards will be issued after the applicant proves that he or she is a qualified patient or primary care giver. The Attorney General states that the "identification cards offer the holder protection from arrest" by California law enforcement. 10

11 Participation in the program is voluntary. Qualified patients and care givers, who are not cardholders, still can raise a defense against prosecution but will be required to prove, at that time, that they are among those eligible for immunity from prosecution. Marijuana transactions are subject to tax by the California State Board of Equalization (BOE) and businesses engaging in such transactions must secure a Seller's Permit from the BOE. Although the MMP prohibits punishing physicians for recommending marijuana as a medicine, the Medical Board of California can take disciplinary action against physicians who fail to comply with accepted medical standards when recommending marijuana as a medicine. The guidelines set forth those Medical Board standards and they include, among others, that the physicians take an appropriate history and conduct a good faith examination of the patient; that they develop a treatment plan with objectives; that they periodically review the treatment's efficacy; and that they keep proper records supporting the de.cision to recommend the use of medical marijuana. Complaints about doctors who fail to follow those standards should be filed with the Medical Board. The guidelines define what constitutes a physician's recommendation, who is a primary care giver (and it is not one who merely provides a source of marijuana but must be one "who has consistently assumed responsibility for the housing, health or safety" of that person), and who is a "qualified patient." The guidelines state that medical marijuana, which was seized by law enforcement, must be returned to the person IF he or she successfully establishes a medical marijuana defense in court, AND the court grants his or her motion for the return of the marijuana, AND the court orders its return. Prior to such a court order, however, there does not appear to be any duty to return the drug since there is no such requirement in Proposition 215, nor in SB 420. COOPERATIVES VS. DISPENSARIES One of the most important provisions of the guidelines is that which defines cooperative or collectives as set forth in the MMP. The law allows patients and primary care givers to "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." The guidelines state that a cooperative must file articles of incorporation, must not make a profit, must use its earnings for the general welfare of its members, and must "not purchase marijuana from, or sell to, non-members... " The guidelines set forth various rules and obligations for the cooperatives, including membership application and verification "to ensure that marijuana grown for medical purposes is not diverted to illicit markets." The guidelines state that "dispensaries that do not substantially comply with the guidelines set forth in sections IV(A) and (B),... are likely operating outside the protections of Proposition 215 and the MMP, and that the individuals operating such entities may be subject to arrest and criminal prosecution under California law." What is important to note is that such dispensaries violate both federal and state law and should not be permitted by cities or counties to operate within their jurisdictions. 11

12 It is, obviously, important to review the Attorney General's guidelines in detail. It is crucial to be aware of how the law applies to dispensaries which are, or may be, in your community; how it impacts on use of marijuana by employees; where and under what circumstances medical marijuana can be used; etc. It is important for officers to be aware of these guidelines and how they should be applied, especially when confronted with an issue on the streets. 12

13 CALIFORNIA SUPREME COURT DEFINES "PRIMARY CARE GIVER" UNDER MEDICAL MARIJUANA LAW November 25, 2008 On November 24, 2008, the California Supreme Court, in a unanimous decision, defined the term "primary care giver" as used in the Compassionate Use Act (CUA) of California's Health & Safety Code sec , was adopted following the passage of Proposition 215, and provides a limited defense from criminal prosecution to certain people who posses or grow marijuana. In the case of People v. Mentch, S , the Court held that the CUA "provides partial immunity for the possession and cultivation of marijuana to two groups of people: Qualified medical marijuana patients and their primary care givers. We hold that a defendant whose care giving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary care giver under the Act..." (Emphasis added.) According to the evidence presented by Mentch, he opened a caregiving and consultancy business in March 2003, called the Hemporium, the purpose of which was to give people safe access to medical marijuana. He provided the drug to approximately five different people, each of whom possessed a valid recommendation for the use of marijuana. He did not profit from his sales of marijuana, he counseled his customers about the best strains of marijuana to use for their ailments, and he took "a couple of them" to medical appointments on a sporadic basis. PRIMARY CARE GIVER DEFINED Prior to the trial the prosecutor moved to keep out references by defense counsel to Mentch being a "primary care giver" for the people to whom he provided marijuana and he was calling as witnesses. The court agreed that the testimony those witnesses were to provide was insufficient to show that Mentch had provided them with primary care giver services, as defined under the CUA. Mentch was convicted of cultivation and possession for sale. He appealed to the Court of Appeal which reversed the conviction ruling that he "presented evidence that he not only grew medical marijuana for several qualified patients, but he also counseled them on the best varieties to grow and use for their ailments and accompanied them to medical appointments, albeit on a sporadic basis...," and the decision of whether he was their "primary care giver" should have been left up to the jury. The Supreme Court held that "the statutory definition has two parts: (1) a primary care giver must have been designated as such by the medical marijuana patient; and (2) he or she must be a person 'who has consistently assumed responsibility for the housing, health, or safety' of the patient." The court concluded that "a defendant asserting primary care giver status must prove at a minimum that he or she (I) consistently provided care giving, (2) independent of any assistance in taking medical 13

14 marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." (Emphasis added.) The Court went on to note that "primary care giver status requires an ex1stmg, established relationship. In some situations, the formation of a bona fide care giving relationship and the onset of assistance in taking medical marijuana may be contemporaneous, as with a cancer patient entering chemotherapy... " However, the Court held, "what is not permitted is for an individual to establish an after-the-fact care giving relationship in an effort to thereby immunize from prosecution previous cultivation or possession for sale." One who merely supplies a patient with marijuana has no defense under the CU A, said the Court, and one has to be a care giver before he or she provides the marijuana. PURPOSE OF THE CUA The Court discussed the purpose of the CUA as one to help those who were seriously ill and who could benefit from the use of marijuana for medical purposes. It pointed out that the CUA's "focus is on the seriously and terminally ill, [and] logically the Act must offer some alternative for those unable to act in their own behalf; accordingly, the Act allows 'primary care givers' the same authority to act on behalf of those too ill or bedridden to do so. To exercise that authority, however, one must be a 'primary' -- principal. lead, central -- 'care giver' -- one responsible for rendering assistance in the provision of daily life necessities -- for a qualifying seriously or terminally ill patient." In a footnote, the court stated that "the Act is a narrow measure with narrow ends. As we acknowledged only months ago, 'the proponents ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition's limited immunity to cover that which its language does not." This California Supreme Court decision should finally resolve a major dispute among those who must deal with the impact of the state's medical marijuana laws. It is now clear that to be classified as a "primary care giver" one must be able to prove that he or she provided for the qualified patient's needs prior to providing medical marijuana. Furthermore, those needs are now clearly articulated and include the rendering of assistance in the provision of daily life necessities to a seriously ill person. That includes assisting such a person with his or her housing, health and/or safety needs; it does not mean just providing medical marijuana. As a result of the Court's clear, distinct, articulation of who or what is a "primary care giver," the question of whether a marijuana dispensary falls within the definition is resolved -- it does not! As is set forth in the law, a cooperative or collective can be formed to provide the needed marijuana for the members of that group. The Attorney General, in his recent guidelines, sets forth the legal basis for determining whether the dispensers of medical marijuana meet the definitions of a cooperative or collective - if they do not, they are not protected under the CUA and are operating illegally. It seems to be incumbent upon units of government, such as cities, to insure that businesses which want to distribute marijuana for medical use meet these legal requirements before issuing licenses and authorization to operate in their jurisdictions. Storefront dispensaries, which do nothing more than dispense marijuana, ostensibly for medical use, are illegal under both state and federal law and should not be permitted to operate in California. 14

15 "MEDICAL MARIJUANA PATIENT CAN SUE FOR VALUE OF DESTROYED MARIJUANA" July 6, 2009 On July I, 2009, the Third District Court of Appeal ruled, in the case of County of Butte v. Superior Court of Butte County (Williams), that a qualified patient or care giver could sue to recover the value of marijuana plants he or she was ordered to destroy, on threat of arrest. In a 2-1 decision, the court held that if a plaintiff can show "that he had a legal right to possess the marijuana in question, and that his rights were violated, he may bring his action [for money damages] based on general applicable legal principles." Williams, his wife, and several others were "qualified patients" under Proposition 215, the Compassionate Use Act (CUA) and, pursuant to Health and Saf. Code section , which is part of the Medical Marijuana Program Act (MMPA), they associated "within the state in order collectively or cooperatively to cultivate marijuana for medical purposes... " Williams grew the marijuana for all of them at his home. When a deputy sheriff, without a warrant, came to the Williams' home to investigate the marijuana cultivation, Williams produced copies of medical marijuana recommendations for all of the members. Under the MMPA, a qualified patient is entitled to possess no more than eight ounces of dried marijuana or six mature or twelve immature marijuana plants. (This section of the law was struck down in People v. Kelly, (2008) 163 Cal.App.4 1h 124) Despite having the recommendations, the deputy ordered Williams to destroy all but 12 of the plants (six for him and six for his wife) or be subject to arrest and prosecution. Williams complied and then filed suit alleging a number of constitutional violations including the violation of his right to due process, unreasonable search and seizure, and conversion (unauthorized assumption and exercise of rights of ownership over personal property belonging to another) of the plants. The county demurred to the suit arguing that (I) Williams only had a limited defense against criminal prosecution which he could raise in criminal court; (2) a qualified patient could share the marijuana he grew with other patients only if he was the primary care giver; and (3) Williams had no right to bring a civil cause of action. The trial court denied the county's demurrer and the county filed a petition for a writ of mandate. LIMITED DEFENSE IN CRIMINAL COURT Based upon language in a decision by the California Supreme Court, in the case of People v. Mower, (2002) 28 Cal. 4th 457, the county argued that under the law one can still be arrested and prosecuted even if he or she claims protection under the MMPA. The Supreme Court, in Mower, stated that the MMP A does not afford qualified medical marijuana patients a complete immunity from arrest because of their status as patients. 15

16 prosecution. They must refuse to obey an official action, be arrested, and then challenge the officer's determination of probable cause in a motion to set aside the charges. We disagree." The court noted that Williams wasn't arrested and, therefore, isn't claiming immunity from arrest. Rather, he seeks adjudication of whether the deputy's lack of probable cause led to a violation of his constitutional rights when he was ordered to destroy the plants. Furthermore, the court cites to the decision in Citv of Garden Grove v. Superior Court (K.ha). (2007) 157 Cal. App. 4th 355, where the Court of Appeal ruled that a police department had to return marijuana, which had been lawfully seized by its officer, after the case was dismissed under Prop 215. The Garden Grove court held that "even though the state law is silent as to whether a qualified patient like K.ha is entitled to the return of his marijuana once criminal charges against him have been dismissed, due process principles seem to compel that result." Since Williams was lawfully growing the marijuana, the Butte County court held that "we believe the same considerations of due process and fundamental fairness are operative in the present case." FEDERAL VS. STATE LAW The dissent in the Williams case argued that since, under federal law, "marijuana is just as illegal as cocaine, and therefore is contraband per se... " it cannot be lawfully possessed. The majority disagreed stating that the MMP A "presents an unusual circumstance of a state law that, under limited circumstances, permits the possession of a substance deemed to be contraband under federal law." As a result, since the deputy was "acting under color of California law, not federal law... the propriety of his conduct is measured by California law." The firm of Jones & Mayer, as general counsel to the California State Sheriffs' Association (CSSA), the California Police Chiefs' Association (CPCA), and the California Peace Officers' Association (CPOA) submitted an amicus curiae brief, and presented oral argument to the Court of Appeal, supporting Butte County. Our arguments on behalf of law enforcement were similar to the positions ultimately set forth in the dissenting opinion. We argued, strenuously, that one cannot have lawful possession of something which is declared illegal under federal law and that such a ruling would create havoc in the enforcement of laws which prohibit possession of property declared to be contraband. The majority's ruling is that Williams has the right to sue to collect the value of the plants which he destroyed in order to avoid arrest. It is interesting to note that the court stated, in quoting from the Garden Grove decision, that "the City no doubt has every right to retain a defendant's marijuana if it is pursuing a marijuana-related prosecution against him, or if the defendant's possession does not comport with the [Act]. In those situations, the law clearly contemplates the destruction of the subject marijuana... " The court then points out that neither of those circumstances existed in the Butte County case. 16

17 If the deputy had arrested Williams, rather than give him the option of destroying the plants the deputy thought were excessive, then Williams could have raised a Proposition 215 defense in criminal court. However, it appears that the destruction of the plants, under those circumstances, might have been lawful. It is difficult, based on the logic of this particular decision, to be sure of that conclusion but it certainly remains as a logical argument. At this point in time, however, the law appears to be that law enforcement must protect dried marijuana and/or plants, which are taken as evidence, or face the potential of being sued for the value of the destroyed drug. 17

18 MEDICAL MARlJUANA DISPENSARlES MUST MEET "PRIMARY CARE GIVER" REQUIREMENTS August 26, 2009 On August 18, 2009, the Fourth District Court of Appeal, issued an opinion in the case of People vs. Hochanadel, et a!. holding, among other things, that the medical marijuana dispensary, CannaHelp, did not qualify as a "primary care giver" nor was it a "cooperative" or "collective" under the Compassionate Use Act (CUA) or Medical Marijuana Program Act (MMPA). FACTUAL BACKGROUND In October 2005, defendant opened the marijuana dispensary in the City of Palm Desert which was ultimately named "CatmaHelp." He filed a certificate of use statement with the State and obtained a business license from the city of Palm Desert to operate a medical marijuana dispensary. The Court noted that a customer would present a "medical marijuana prescription," which was then verified by employees of CannaHelp. (The Court refers to a "prescription" but in fact doctors never issue prescriptions for medical marijuana since that would be a felony under federal law. Doctors instead issue "recommendations" and the Court improperly refers to them as "valid prescriptions.") Prior to purchasing marijuana customers completed paperwork designating CannaHelp as their primary care giver. The defendants who owned CannaHelp all had medical referrals for the use of marijuana and were themselves qualified medical marijuana patients under the CUA. CannaHelp also contacted law enforcement authorities when someone attempted to illegally purchase marijuana. Subsequently, it was determined, as a result of police surveillance, that an individual named Gary Silva supplied marijuana to CannaHelp. Federal agents ultimately executed a search warrant on Silva's home where they found that marijuana was being grown, there were 69 marijuana plants, growing equipment, nun1erous loaded firearms, and several canisters of dried marijuana for sale. Thereafter, a police officer, with a recommendation for marijuana from a physician, purchased marijuana at CannaHelp and, based upon all of the above, a Court issued a search warrant for the CannaHelp location. The defendants brought a motion to quash the warrant arguing that CarmaHelp qualified as a primary care giver and that the search warrant was invalid due to the lack of the detectives' qualifications to execute the search warrant. The trial court granted the Motion to Quash finding that CannaHelp was a valid primary care giver and that the detective was incorrect in his conclusion that it operated at a profit. PRlMARY CARE GIVER The Court of Appeal noted that "under the CUA, a "primary care giver" is defined as the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." 18

19 The Court of A peal also noted that recently the California Supreme Court, in People vs. E Mentch (2008) 45 Cal.4 274, held that "to be a primary care giver... an individual must show that he or she (I) consistently provided care giving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." The Supreme Court in Mentch also concluded that a person does not qualify as a primary care giver merely by having a patient designate him or her as such, or by the provision of medical marijuana in itself. Rather, the Supreme Court stated, "the person must show a care taking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." COOPERATIVES OR COLLECTIVES The Court of Appeal noted that the MMPA added section to the California Health and Safety Code which provides, in part, that "qualified patients... and the designated primary care givers of qualified patients... who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to State criminal sanctions... " for the possession, cultivation, sale, use, storage or distribution of marijuana. Referring to an earlier Court of Appeal decision, in People vs. Urziceanu (2005) 132 Cai.App. 4 1h 747, the Hochanadel court stated that the CUA contemplated the formation and operation of medicinal marijuana cooperatives. In discussing what constituted a cooperative or a collective, the Court of Appeal noted that "the MMP A also specifies that collectives, cooperatives or other groups shall not profit from the sale of marijuana." ATTORNEY GENERAL GUIDELINES The Court noted that the California Attorney General issued guidelines pursuant to Health and Safety Code Section Among other things, the Attorney General's Guidelines reiterated that, in order to be a primary care giver, one must consistently provide for the health, safety, or housing of a qualified patient. The A. G.'s Guidelines noted that "someone who merely maintains a source of marijuana does not automatically become the party who has consistently assumed responsibility for the housing, health or safety of that purchaser." Furthermore, the Attorney General's Guidelines provided a definition of "cooperatives" and "collectives." The Guidelines stated that "a cooperative must file articles of incorporation with the State and conduct its business for the mutual benefit of its members." Furthermore, it must "be properly organized and registered as such a corporation under the Corporations or Food and Agriculture Code." The A.G. Guidelines reiterated that cooperatives shall not be profit making operations and "must report individual transactions from individual members each year." 19

20 The A.G. Guidelines also addressed what constitutes a collective by stating it is "a business, farm, etc., jointly owned and operated by the members of a group. Thus, a collective should be an organization that merely facilitates the collaborative efforts of patient and care giver members - including the allocation of costs and revenues." The Attorney General also stated that "the collectives should not purchase marijuana from, or sell to, non - members; instead, it should only provide a means for facilitating or coordinating transactions between members." The A.G. Guidelines emphasize that "nothing allows marijuana to be purchased from outside the collective or cooperative for distribution to its members. Instead, the cycle should be a closed circuit of marijuana cultivation and consumption with no purchases or sales to or from non- members." The A.G. Guidelines also address the issue of "dispensaries." The Attorney General stated that "while dispensaries, as such, are not recognized under the law, a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law, but dispensaries that do not substantially comply with the guidelines [covering collectives and cooperatives] are likely operating outside the protections of the CUA and the MMPA... " The A.G. Guidelines also state that "dispensaries that merely require patients to complete a form sunm1arily designating the business owner as their primary care giver- and then offering marijuana in exchange for cash "donations"- are likely unlawful." MOTION TO QUASH The Court of Appeal concluded that the trial court made error in quashing the search warrant for several reasons. Among those reasons included the fact that Officer Garcia's search warrant affidavit provided probable cause to believe that the defendants were engaged in criminal activity. Furthermore, the Court of Appeal determined that CannaHelp did not qualify as a primary care giver nor was it a collective or a cooperative under the CUA.!:. The Court of Appeal noted that "we express no opinion as to whether defendants were in substantial compliance with Section and the A.G. Guidelines, and whether, as in Urziceanu, there is sufficient evidence for defendants to raise section as a defense at trial. Rather, our only task is to determine whether the facts, as known to detective Garcia at the time the search warrant was issued, demonstrated probable cause to believe defendants were not in compliance with the CUA and MMPA." The Court of Appeal also stated that "nothing in Section , or any other law, prohibits cooperatives and collectives from maintaining places of business. If defendants can produce facts sufficient to show they were operating a true cooperative or collective, and that they were otherwise in substantial compliance with the CUA and MMPA, they may be able to raise section as a defense at trial. However, our analysis is confined to the facts as described in the search warrant affidavit." 20

21 The mere fact that one is operating a store front dispensary to provide medical marijuana to qualified patients, does not, in and of itself, prove that it cannot meet the requirements of the CUA or MMP A. However, the operators of such dispensaries must prove several things in order to be protected under Health and Safety Code Section Those dispensaries must be operating as legitimate cooperatives or collectives and meeting all of the requirements set forth above. Additionally, the cooperative or collective must be the primary care givers of those to whom they are providing marijuana for medical purposes. The cooperative or collective must also be able to prove that it is not securing the marijuana from anyone who is not a legitimate member of that cooperative or collective. Additionally, they must be able to prove who are the members of the cooperative or collective and that an existing established relationship, distinct from merely providing medical marijuana, exists between the owners of that dispensary, cooperative, or collective and its members. There is nothing in the law which prevents law enforcement from legitimately conducting investigations to insure that these operations are in compliance with State law. It is imperative to remember that Proposition 215 did not legalize marijuana but merely created an exemption from prosecution under State law for those who are either qualified patients or qualified care givers. 21