Court Strikes Down SB420 Limits

Los Angeles, May 22, 2008: The Second District of California Court of Appeals ruled that the state limits on medical marijuana possession and cultivation established under state law SB 420 are unconstitutional.

In the case People v. Patrick Kelly, the court overturned defendant's conviction for possessing 12 ounces of dried marijuana plants on the grounds that the prosecutor had improperly argued that the defendant was guilty because he possessed more than the 8-ounce limit established in Health & Safety Code Sec. 11362.77 and did not have a doctor's recommendation authorizing more. (Text of Kelly decision).

The Court validated the long-standing view of California NORML and other Prop 215 advocates that the SB 420 limits are unconstitutional. Cal NORML attorneys have successfully argued the point in several lower court cases, but this is the first time it has been addressed by an appellate court.

In a 3-0 decision, the court ruled: "The prosecutor's argument was improper. It was improper because the CUA [Compassionate Use Act] can only be amended with voters' approval. Voters, however, did not approve the eight-ounce limit and other caps in section 11362.77 [of SB420]; hence, section 11362.77 unconstitutionally amends the CUA." The decision is certified for partial publication, pending possible appeal to the Supreme Court.

The full implications of the Kelly decision remain unclear. In particular, it is not clear whether it rules out the use of SB 420 numbers as guidelines to protect patients with state ID cards from arrest. The court's reasoning would seem to apply only when the SB 420 numbers are used to limit patients' rights, not when they are used to protect them. However, the court's sweeping pronouncement that this section of SB 420 is "unconstitutional" might be interpreted otherwise by police who would prefer to ignore it. Further litigation therefore seems likely.

Ironically, the court noted that the constitutional problems in SB 420 could have been avoided by enactment of Sen. Vasconcellos' proposed "SB 420 Clean-Up" bill SB 1494 in 2004. That bill made it clear that qualified patients could legally possess whatever amount of marijuana was consistent with their needs. However, SB 1494 was vetoed by Gov. Schwarzenegger on the grounds it removed "reasonable and established quantity guidelines."

One incidental casualty of the Kelly decision was Mendocino's Measure B anti-pot initiative, aimed at rolling back the county's limits for medical marijuana cultivation from 25 to 6 plants. Measure B specifically cites the clause in SB 420 that was struck down in the Kelly decision, H&SC 11362.77. Measure B therefore appears to rest on invalid law, making it vulnerable to legal and political challenge.

The Attorney General's office announced that it would appeal the Kelly ruling.

Text of the Kelly decision

UPDATE 8/14/08 - State top court to review medical pot limit