State Courts

Cal NORML Release - Nov. 24, 2008 Cal Supreme Court Rules Prop 215 Caregivers Must Do More Than Just Supply Marijuana In a blow to medical marijuana providers, the California Supreme Court ruled that defendants are not entitled to a defense as Prop 215 caregivers if their primary role is only to supply marijuana to patients. The court unanimously overruled an appellate court decision in the case People v Roger Mentch", writing: "We hold that a defendant whose caregiving 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 caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) alters this conclusion or offers any additional defense on this record." Full text of the decision may be found at http://www.courtinfo.ca.gov/opinions/documents/S148204.PDF Prop 215 defines primary caregiver to be the "individual designated by the [patient]... who has consistently assumed responsibility for the housing, health, or safety of that person." According to the Court, these words " imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." The Court concluded, " a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (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 Court's ruling effectively limits the caregiver defense to relatives, personal friends and attendants, nurses, etc. In particular, it excludes its use by medical marijuana "buyers' clubs," retail dispensaries and delivery services. The remaining legal defense for medical marijuana providers is to organize as patient cooperatives and collectives, which are legal under SB 420. "The Mentch decision highlights the inadequacy of California's current medical marijuana supply system," said Cal NORML coordinator Dale Gieringer. "The law needs to allow for professional licensed growers , as with other medicinal herbs." - D. Gieringer Cal NORML -- Dale Gieringer - [email protected] California NORML, 2215-R Market St. #278, San Francisco CA 94114 -(415) 563- 5858 - www.canorml.org

ASA's web page on the San Diego case: http://www.AmericansForSafeAccess.org/article.php?id=4405 For Immediate Release: October 16th, 2008 California Supreme Court Denies Review of San Diego Medical Marijuana Case Advocates prepared to pursue litigation against counties refusing to uphold state law San Francisco, CA -- The California Supreme Court refused to review a landmark medical marijuana case today that will require all counties to implement the state identification program. The County of San Diego filed suit against the State of California in February 2006, arguing that state law was preempted by federal law. That argument was rejected by the San Diego Superior Court in December of 2006 and was also later denied by the Fourth District Court of Appeals on July 31, 2008. The lawsuit challenged the validity of the state identification card program, as well as the foundation of California's medical marijuana laws, but the decisions by both lower and appellate courts found that the ID card program and state law remained valid and does not violate the state constitution. "The San Diego case is now final under California law," said Joe Elford, Chief Counsel of Americans for Safe Access, who argued before the appellate court on behalf of patients. "The courts have made clear that federal law does not preempt state law relating to medical marijuana and that local officials must comply with California's medical marijuana laws." In a unanimous opinion earlier this year, the Court of Appeals ruled that the federal Controlled Substances Act "signifies Congress's intent to maintain the power of states to elect 'to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country' by preserving all state laws that do not positively conflict with the CSA." Americans for Safe Access (ASA), along with the ACLU Drug Law Reform Project, defended the interests of patients in fighting San Diego's appeal to the State Supreme Court. Both organizations successfully intervened as defendants in the lawsuit in August of 2006, while the case was still being litigated in the Superior Court. After the appellate court ruling, ASA put all counties that had not yet implemented the ID card program on notice of their obligation to implement state law, in particular the state ID card program, which both assists law enforcement and affords greater greater protection to patients. "We expect the remaining holdout counties to implement the medical marijuana card program immediately," continued Elford. "And if they continue to refuse to comply with state law, we will call upon the courts to require them to do so." San Diego County was originally joined by San Bernardino and Merced Counties, but Merced chose not to appeal, opting instead to implement the state ID card program and a Sheriff's policy on medical marijuana patient encounters. In an unusual move, the City of San Diego voiced its opposition to the County's lawsuit by filing an amicus 'friend of the court' brief in December 2007, siding with the Attorney General and medical marijuana patient advocates. For further information: California Court of Appeals ruling from July 31, 2008: http://www.AmericansForSafeAccess.org/downloads/San_Diego_Appeal_Ruling.pdf ASA's web page on the San Diego case: http://www.AmericansForSafeAccess.org/article.php?id=4405