The state’s medical marijuana guidelines were unanimously ruled unconstitutional by California’s 2nd District Court of Appeal May 22, 2008– a decision that makes most limits, including those in Measure B unenforceable.

The decision in People v. Kelly specifically struck down the same section of law cited in Measure B – Health and Safety Code Section 11362.77 – which sets default limits of six plants and eight ounces per patient. In effect, therefore, Mendocino County citizens are being asked to vote on a proposal that, if approved, would be illegal.

The new decision is certain to spark a challenge to Measure B if it passes, clogging the courts and burdening local taxpayers, according to attorneys.

“At this point, passing Measure B would create more problems than it would solve,” said attorney Myron Sawicki, who specialized in marijuana-related prosecutions with the Mendocino County District Attorney’s office for 23 years. Sawicki is the recipient of several awards in excellence for marijuana prosecution from the United States Drug Enforcement Administration and the Campaign Against Marijuana Production (CAMP).

“Since there are no state guidelines anymore, why pass Measure B? It’s a waste of public funds,” Sawicki said. “Why spend the money? Even if this passes, it will result in spin-off litigation.”
The California Appellate Court (Second District) ruled Thursday that state legislators overstepped their bounds in 2003 by limiting the amount of medical marijuana that patients could possess to six plants and eight ounces.

The unanimous opinion in the Los Angeles court said legislators acted unconstitutionally when they passed a statute (known as SB 420) that effectively amended Proposition 215 -- also known as the Compassionate Use Act of 1996 (CUA).

"The CUA can only be amended with voters’ approval. Voters, however, did not approve the eight-ounce limit and other caps… hence the section (11362.77) unconstitutionally amends the CUA,” wrote Justice Richard Aldrich in Thursday’s opinion. Text of the Kelly decision is available at: http://www.courtinfo.ca.gov/opinions/documents/B195624.PDF

Measure B has the same problem since it is based on the same six plant, and eight ounce limits, which were struck down by the Appeals Court. “As of today there are no state standards,” Sawicki said. “Everyone needs to go back to the drawing boards because if approved, Measure B will just add to the chaos and confusion.”.

In Thursday's ruling, the Appeals Court ordered a retrial for Patrick Kelly after jurors in 2006 found him guilty of possessing about 12 ounces (four ounces over the state minimum guideline and those set for by Measure B) of dried marijuana and seven plants.

Kelly had a doctor’s recommendation to use marijuana for a variety of ailments, including hepatitis C, chronic back problems and cirrhosis. He had been using prescribed medicines to treat his pain, but when those medicines cost him $1,387 per month and his income was only $1,034 per month, he began growing his own marijuana medicine.

In the Kelly case, the Court of Appeal ruled the only limit on how much marijuana a medical marijuana patient may possess is the amount necessary for the "patient's personal medical purposes."

The Court’s decision means it will now be up to courts and juries to figure out how much marijuana medicine each patients needs, not legislators in Sacramento or voters in Mendocino County, according to Susan B. Jordan, a local criminal defense attorney and nationally renowned legal expert.

“If it passes, the part of Measure B that asks voters to set a limit on the number of plants for Mendocino County patients or caregivers, is an illegal effort to put medical marijuana in the hands of the “politicians (who are asking for the support of the voters) and not in the hands of judges where it belongs,” Jordan said.

“Unfortunately, Measure B will not be a way out for what we all agree is a big problem,” she said.

“And now it turns out it will be thrown out by the Courts if it passes.”