The MENDOCINO COUNTRY Independent


Judge Ends Measure B Stay, 1/5/09
   by Richard Johnson
     On December 30, Mendocino Superior Court Judge John Behnke ended his temporary stay on the second subject of Measure B -- medical marijuana plant limits -- pending rulings by the state supreme court.

"Section 11362.77 is once again cloaked in the mantle of presumptive validity -- Judge John Behnke, December 30, 2008

    According to this reporter who is not an attorney, the likely impact is that the August 2007 resolution of the board of supervisors setting medical marijuana per patient limits at 25 plants and 2 pounds of dried product are superceded by the state maximums of 6 mature or 12 immature and 8 ounces of dried product under authority of Measure B and California Health and Safety Code Section 11362.77(c).
    Regardless of the rhetoric proclaiming these limits are a threshold and not a maximum, the impact of Measure B's plant limits in Mendocino County is to expose any patient with between 8 ounces and 2 pounds, or between 6 and 25 mature plants with felony possession for sale.
    In addition, the recent Mentch decision by the state Supreme Court exposes most people in Mendocino County who considered themselves caregivers to felony cultivation for any amount of marijuana unless they themselves are a patient, in which case they must be under the state limits.

The Laguna Case;
    In March of last year, two medical marijuana patients Paula Laguna and George Hanamoto represented by Edie Lerman of Mendocino and David Nick of San Francisco  asked the court for a writ of mandate prohibiting Measure B from being printed on the June ballot. But by the first hearing on that motion on April 11, the ballots had already secretly been printed. Judge Behnke denied their motion, along with Richard Johnson's on April 27.
    Measure B, which was approved by a 4% margin by county voters in June, contained two subjects. One was the repeal of year 2000 initiative Measure G also known as county health and safety code section 9.36, Personal Use of Cannabis. The second was the lowering of per patient medical marijuana possession limits to the state minimums, contained in the ninth paragraph of Measure B. This provision was apparently based on Section 11362.77(c)  of the health and safety code granting cities and counties an option to adopt increased plant limits over and above the state threshold of six mature plants, 12 mature and 8 ounces of dried product.
    The previous decision on this point was a resolution adopted by the board of supervisors in August of 2007.setting those limits at 25 plants per patient and 2 pounds of processed material.
    After the Kelly decision was filed by the Second District Court of Appeals in May, plaintiffs attorneys Lerman and Nick asked for a reconsideration, and another on July 25. In those pleadings, they asked for a stay against the operation of the Measure B per patient plant limits.
    The Kelly decision held that the entire Section 11362.77 was an unconstitutional amendment of the Compassionate Use Act, Proposition 215. It was taken under review by the Supreme Court in August and a similar ruling in People v. Phomphakdy in the Fourth Appellate District was taken under review in October.
    But while Kelly was still in effect, on August 8, judge Behnke granted a stay requested by plaintiffs attorneysand a later hearing to review it. While the stay was in effect, county officials were supposedly banned from enforcing the state numerical limits here.
    In his December ruling, Behke first noted that because Kelly and Phomphakdy are under Supreme Court review, they are not to be cited as precedent under rules of court. He said because of the review, "Section 11362.77 is once again cloaked in the mantle of presumptive validity."
    Next, he noted that because subsection (b) of 11362.77 allows a qualified patient with a doctor's recommendation to possess more than the numerical limits if consistent with the patient's need, the plant limit section of Measure B was "open ended," not "hard and fast" and therefore not un unconstitutional amendment of Prop 215.
    "Petitioners have requested this court defer entry of judgment until the Calfornia Supreme Court has ruled in Kelly and Phomphakdy. The more prudent course is to deny the application without prejudice and revisit the issue, if necessary, after the California Supreme Court rules," Behnke wrote.

Judge John Behke courtesy of Johnson Digital Media
  behnke.jpg

Vacillating Rulings: .
    In his August ruling, Behke wrote: "If the state legislature can not amend a state law passed by initiative (the CUA), by passing specific legislation such as Health and Safety Code Section 11362.77, certainly the electorate of a single political subdivision of the state such as a single county can't amend a statewide initiative by passing a local ordinance or initiative."
     "If the Kelly decision stands, Measure B's specific limits on the amounts of marijuana a qualified patient or his primary caregiver may possess constitute an amendment of the CUA, without consent of the statewide electorate and the specific limits section of the new ordinance is therefore unconstitutional.
    "To the extent that it provides specific numeric and quantitative limits on possession for medical purposes, the operation and enforcement of the following provision of Measure B is stayed:
"Limits for Possession of Marijuana for Medical Purposes
     A qualified patient or primary caregiver may possess or maintain for medical purposes, only those amounts as set forth in Health and Safety Code 11362.77 and as amended by state or federal legislation."

    Prior to the hearing, Plaintiff attorneys filed a proposed order which: 1) declared Measure G to be repealed; and 2) declared that the medical marijuana plant limits in the second subject of Measure B is unconstitutional; 3) deferred final judgment until the Supreme Court rules in Kelly and 4) in the meantime declares the second subject of Measure B to be unenforceable pending a further ruling of the court.
    In response, Deputy County Counsel Terry Gross argued that it was premature to rule on the constitutionality of the second subject of Measure B because the Supreme Court was likely to decide that SB420 was a stand alone program approved by the legislature and signed by the governor in 2003, and had been upheld in the Wright decision.
    In a written objection to Lerman's proposed order, Gross pointed out that the Plaintiffs had failed to include any new facts or law to uphold the repeal of Measure G in their renewed motion.
     Further, she argued that Kelly and Phomphakdy were no longer to be relied on because they were under review, and that Kelly was the sole basis of the renewed motion. Further, that the Supreme Court had unpheld the Medical Mariuana Program limits as a mandatory threshhold. She also pointed out that the Supreme Court was going to limit its review to whether the limits were an amendment of the Compassionate Use Act and whether alternative remedies to striking the entire section as the second appellate court had done.
    In December, Behke allowed Gross to file a proposed order consistent with his ruling.
    For his part, the sheriff stated on September 15  that the Kelly decision rules and there is no plant limit under which an exemption from arrest or prosecution is effective. In a recent press interview he stated that anyone making a living from marijuana cultivation was engaged in banned commercial activity.