CA App Court Rejects Challenge to SB420

Unfortunately, Davis focused on the
provisions in SB 420 establishing a voluntary ID
card program, rather than on the quantity or
caregiver limits, which are more clearly
limitations on Prop. 215. The court rejected
Davis' standing. The opinion is unpublished and
therefore cannot be cited as precedent. - DG

> Appellant has not demonstrated that he is affected by the voluntary program
>in which he has elected not to participate. Nor
>has he demonstrated how he would
>be affected by its invalidation. As appellant
>did not allege that he applied for
>an identification card or that harm might come to him if he did apply for one,
>and he did not allege that he is interested as a
>taxpayer, or even that he is a
>taxpayer, he has alleged no special interest
>over and above the interest held in
>common with the public at large.

>From: LexisNexis Print Delivery
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>(R)
>Date: September 2, 2006 2:32:08 AM PDT
>To: <mailto:omar [at] aya.yale.edu>omar [at] aya.yale.edu
>Subject: LexisNexis(TM) New CA medical cannabis case (1862:116368833)
>
>
>
> Saved Search Update Report:
> September 02, 2006 107M0H
>
> Print Number: 1862:116368833
>
> Name: H&S § 11362.5 and/or 11362.77
>Selected Library: MEGA
>Selected File(s): MEGA
>
> Saved Search: 11362.5 OR 11362.77
>
>
>Send to: FIGUEROA, OMAR
> PIER 5 LAW OFFICES
> 506 BROADWAY
> SAN FRANCISCO, CA 94133
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> 1 of 1 DOCUMENT
>
> DIVISION FOUR RICHARD MARVIN DAVIS, Plaintiff and Appellant,
> v. SANDRA SHEWRY, as Director, etc., et al., Defendants and
> Respondents.
>
> B187999
>
> COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
> DIVISION FOUR
>
>
> 2006 Cal. App. Unpub. LEXIS 7723
>
> August 30, 2006, Filed
>
>NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF
>COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON
>OPINIONS NOT CERTIFIED FOR PUBLICATION OR
>ORDERED PUBLISHED, EXCEPT AS SPECIFIED
>BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED
>PUBLISHED FOR THE PURPOSES OF RULE 977.
>
>PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles
>County, No. BS090919. Robert O'Brien, Judge. Dismissed.
>
>COUNSEL: Richard Marvin Davis, in pro. per., for Plaintiff and Appellant.
>
>Bill Locker, Attorney General, Louis R. Mauro, Assistant Attorney General,
>Christopher E. Krueger and Jonathan K. Renner, Deputy Attorneys General, for
>Defendants and Respondents.
>
>JUDGES: MANELLA, J.; EPSTEIN, P.J., WILLHITE, J. concurred.
>
>OPINIONBY: MANELLA
>
>OPINION:
>
> BACKGROUND
>
> Appellant Richard Marvin Davis appeals from a
>judgment entered on October 4,
>2005, denying his petition for writ of mandate to declare unconstitutional and
>enjoin enforcement of the identification card provisions of the Medical
>Marijuana Program, set forth in division 10, chapter 6, article 2.5, of the
>Health and Safety Code section 11362.7 et seq. n1 Appellant's timely [*2]
>notice of appeal was filed on December 2, 2005.
>
>- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
>
> n1 All further statutory references will be to the Health and Safety Code,
>unless otherwise stated.
>
>- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
>
> DISCUSSION
>
> 1. Overview of the Compassionate Use Act and the Medical Marijuana Program
>
> In 1996, the voters approved Proposition 215, an initiative measure which
>resulted in the enactment of the Compassionate Use Act of 1996, codified at
>Health and Safety Code section 11362.5. The purpose of the act is stated in
>subdivision (b)(1) of the statute as follows:
>"(A) 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 in the treatment of cancer, anorexia, AIDS, chronic pain,
>spasticity, glaucoma, arthritis, migraine, or any other illness for which
>marijuana provides relief. [P] (B) To ensure that patients [*3] and their
>primary caregivers who obtain and use marijuana for medical purposes upon the
>recommendation of a physician are not subject to criminal prosecution or
>sanction. [P] (C) To encourage the federal and
>state governments to implement a
>plan to provide for the safe and affordable distribution of marijuana to all
>patients in medical need of marijuana."
>
> To further such purposes, section 11362.5
>provides: "(c) Notwithstanding any
>other provision of law, no physician in this
>state shall be punished, or denied
>any right or privilege, for having recommended marijuana to a patient for
>medical purposes. [P] (d) Section 11357, relating to the possession of
>marijuana, and Section 11358, relating to the cultivation of marijuana, shall
>not apply to a patient, or to a patient's primary caregiver, who possesses or
>cultivates marijuana for the personal medical purposes of the patient upon the
>written or oral recommendation or approval of a physician. [P] (e) For the
>purposes of this section, 'primary caregiver'
>means the individual designated by
>the person exempted under this section who has consistently assumed
>responsibility for the housing, health, or safety of that person." n2
>
>- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
>
> n2 The possession, cultivation, and use of marijuana for medicinal purposes
>under the conditions specified in the Compassionate Use Act do not violate
>California law, but remain illegal under federal
>law. (See 21 U.S.C. §§ 841, 844
>; Gonzales v. Raich (2005) 545 U.S. 1, 162 L. Ed. 2d 1.)
>
>- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*4]
>
> The Compassionate Use Act provides qualified immunity from prosecution for
>possession or cultivation of marijuana in violation of section 11357 or 11358,
>and therefore provides an affirmative defense to
>such a charge. (People v. Mower
>(2002) 28 Cal.4th 457, 474-475 (Mower).) It does
>not grant immunity from arrest.
>(Id. at p. 469.) Nor does it provide a defense
>to a charge of transportation of
>marijuana under section 11360, although some
>courts have indicated a willingness
>to find an implied defense where the transportation is incidental to permitted
>medical use. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 770-773 (
>Urziceanu), and cases discussed therein.) Although one of the express purposes
>of the Compassionate Use Act is to "encourage
>the federal and state governments
>to implement a plan to provide for the safe and affordable distribution of
>marijuana to all patients in medical need of marijuana," the measure does not
>include language permitting amendment or repeal without voter approval. ( §
>11362.5, subd. (b)(1)(C).)
>
> In 2003, the Legislature enacted the Medical Marijuana Program, section
>11362.7 et seq. (Stats. [*5] 2003, ch. 875 (S.B.420).) The program provides
>for the issuance of identification cards to qualified volunteers, in order to
>identify them as patients and their designated primary caregivers who are
>authorized to engage in the medical use of marijuana. ( § 11362.71.) It is
>unnecessary under the program to obtain an
>identification card in order to claim
>the protections of the Compassionate Use Act, but a valid identification card
>will protect the holder from arrest for the possession, transportation,
>delivery, or cultivation of medical marijuana in a specified amount. ( §
>11362.77, subd. (e).) In addition, limited
>immunity from criminal liability was
>extended to encompass transportation of marijuana by a patient or designated
>caregiver who holds a valid identification card under the program. ( §
>11362.765.)
>
> 2. The Parties' Contentions
>
> Appellant contends that the voluntary program for the issuance of
>identification cards violates article II, section 10, subdivision (c), of the
>California Constitution, which provides: "'The Legislature . . . may amend or
>repeal an initiative statute by another statute
>that becomes effective only when
>approved by the electors unless the initiative [*6] statute permits amendment
>or repeal without their approval.'" Under article II, section 10, "'the voters
>have the power to decide whether or not the Legislature can amend or repeal
>initiative statutes. This power is absolute and includes the power to enable
>legislative amendment subject to conditions
>attached by the voters. [Citation.]'
>[Citations.]" (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251,
>italics omitted.)
>
> Respondents contend that the subject matter
>of the Medical Marijuana Program
>is distinct from the subject of the Compassionate Use Act, and it is therefore
>not an amendment. Additionally, and in response to inquiries from this court,
>respondents contend that the matter is not ripe for adjudication, as appellant
>has failed to identify either a concrete dispute
>between himself and respondents
>or any injury that he will suffer without immediate judicial relief.
>
> 3. Justiciability
>
> In general, mandamus is the appropriate avenue for challenging the
>constitutionality or validity of statutes, so
>long as the controversy is present
>and justiciable. (Bramberg v. Jones (1999) 20 Cal.4th 1045, 1055, fn.15; Code
>Civ. Proc., § 1085 [*7] .) "'The concept of justiciability involves the
>intertwined criteria of ripeness and standing.' [Citation.]" (City of Santa
>Monica v. Stewart (2005) 126 Cal.App.4th 43,
>59.) Standing refers to the fitness
>of the petitioner to raise the issue, whereas justiciability means the
>amenability of the issue to judicial redress.
>(Harman v. City and County of San
>Francisco (1972) 7 Cal.3d 150, 159, 101 Cal. Rptr. 880.)
>
> Standing requires the petitioner to be
>"beneficially interested," which means
>that "the person has some special interest to be
>served or some particular right
>to be preserved or protected over and above the
>interest held in common with the
>public at large." (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793,
>796, 166 Cal. Rptr. 844; Code Civ. Proc., § 1086; Parker v. Bowron (1953) 40
>Cal.2d 344, 351.) The issue of standing may be raised at any time in the
>proceedings. (Parker v. Bowron, at p. 351.)
>
> "The . . . doctrine of justiciability . . . prevents courts from issuing
>purely advisory opinions. [Citation.] It is rooted in the fundamental concept
>that the proper role [*8] of the judiciary does
>not extend to the resolution of
>abstract differences of legal opinion. It is in part designed to regulate the
>workload of courts by preventing judicial consideration of lawsuits that seek
>only to obtain general guidance, rather than to
>resolve specific legal disputes.
>" (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158,
>170, 188 Cal. Rptr. 104 (Pacific Legal
>Foundation).) A controversy must be "ripe
>" to be justiciable, and to be ripe, a "'controversy must be definite and
>concrete, touching the legal relations of parties having adverse legal
>interests. [Citation.] It must be a real and substantial controversy admitting
>of specific relief through a decree of a
>conclusive character, as distinguished
>from an opinion advising what the law would be upon a hypothetical state of
>facts.'" (Id. at p. 171.)
>
> We may not give advisory opinions with regard to unripe issues or resolve
>claims which the parties have no standing to assert. (City of Santa Monica v.
>Stewart, supra, 126 Cal.App.4th at p. 69.) Further, a successful facial
>challenge to the constitutionality of a statute
>results in the invalidation [*9]
>of the statute, and such a remedy is a severe one which should not be lightly
>undertaken. (In re Marriage of Siller (1986) 187 Cal.App.3d 36, 48, 231 Cal.
>Rptr. 757.) Thus, because the parties did not raise the issue of standing or
>ripeness below, we asked them to file supplemental letter briefs.
>
> Appellant alleged in his petition that he is, as a citizen and voter
>domiciled in the State of California, as well as
>a patient and caregiver, within
>the purview of the Compassionate Use Act, and
>that he was one of the authors of
>Proposition 215. In his letter brief, he claims that these facts give him
>standing to challenge the Medical Marijuana Program, because they show that he
>has a special interest over and above the interest held in common with the
>public at large. n3 Appellant relies upon
>Connerly v. State Personnel Bd. (2006)
>37 Cal.4th 1169 (Connerly), suggesting that he is directly affected by the
>Medical Marijuana Program.
>
>- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
>
> n3 Appellant also states in his brief that he
>was one of many authors of the
>act, but there is no indication of just how many there were.
>
>- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*10]
>
> There is a discussion in Connerly of Sonoma
>County Nuclear Free Zone A'86 v.
>Superior Court (1987) 189 Cal.App.3d 167, 234 Cal. Rptr. 357, in which an
>opponent of an initiative measure requested
>leave to file a late ballot argument
>against the measure. The court held that the proponent of the initiative
>measure, who had authored the ballot argument in
>favor of it, was the real party
>in interest with standing to challenge the
>request, because a late filing might
>jeopardize the proponent's ability to file a rebuttal. (Connerly, supra, 37
>Cal.4th at p. 1178; Sonoma County Nuclear Free
>Zone, at p. 173.) No such issues
>are present here, and we discern no ruling that
>would decree that all proponents
>or coauthors of an initiative are necessarily directly affected by legislation
>amending it.
>
> Appellant concedes that to have standing, he must have an actual and
>substantial interest in the ultimate outcome of
>an action, either by receiving a
>direct benefit or by suffering an actual or imminent harm. (See City of Santa
>Monica v. Stewart, supra, 126 Cal.App.4th at p. 59.) He must show that he has
>been or would be adversely affected [*11] by the challenged governmental
>action. (Carsten v. Psychology Examining Com.,
>supra, 27 Cal.3d at pp. 796-797.)
>Appellant claims that unless we invalidate the Medical Marijuana Program, he
>would be required to choose between compliance with the identification card
>provisions on the one hand, and risking civil and criminal penalties on the
>other. He does not explain this claim, but his
>briefs on appeal indicate that he
>believes that he will not be subject to arrest for the use and cultivation of
>marijuana if the statute is invalidated.
>
> Appellant points out that one of the stated purposes of Proposition 215 was
>"[t]o ensure that patients and their primary caregivers who obtain and use
>marijuana for medical purposes upon the recommendation of a physician are not
>subject to criminal prosecution or sanction." (
>§ 11362.5, subd. (b)(1)(B).) He
>interprets sanction as including arrest, and
>concludes that it was the intent of
>the voters to prohibit the arrest of such
>individuals. As we interpret appellant
>'s contention, it is that the Legislature nullified the right granted by the
>Compassionate Use Act to be free from arrest, by providing that only those who
>[*12] volunteer for the Medical Marijuana Program may avoid arrest.
>
> Appellant's argument is foreclosed by the California Supreme Court's ruling
>in Mower, that the act does not provide immunity
>from arrest. (See 28 Cal.4th at
>p. 469.) We are bound by that interpretation. (See Auto Equity Sales, Inc. v.
>Superior Court (1962) 57 Cal.2d 450, 455, 20
>Cal. Rptr. 321.) Further, we reject
>appellant's contention that we may conclude that the statute offers immunity
>from arrest, in spite of the decision in Mower,
>because, he asserts, the Supreme
>Court was construing only subdivision (d) of section 11362.5, not subdivision
>(b)(1)(B). The court considered the statute as a whole in determining that it
>did not provide immunity from arrest. (See Mower, supra, at p. 468.) n4
>
>- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
>
> n4 The opponents of Proposition 215 argued that it would "provide new legal
>loopholes for drug dealers to avoid arrest and
>prosecution." (Ballot Pamp., Gen.
>Elec. (Nov. 5, 1996) argument against Prop. 215, p. 61.) As the Court pointed
>out in Mower, the measure's proponents replied in rebuttal: "'Police officers
>can still arrest anyone for marijuana offenses'"; and Proposition 215 "'simply
>gives those arrested' . . . 'a defense in court . . . .'" (Mower, supra, 28
>Cal.4th at pp. 469, 475, citations omitted.)
>
>- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*13]
>
> In enacting the Medical Marijuana Program, it was the express intent of the
>Legislature, to "[c]larify the scope of the application of the [Compassionate
>Use Act] and facilitate the prompt identification of qualified patients and
>their designated primary caregivers in order to
>avoid unnecessary arrest and . .
>. [P] . . . [P] . . . to address additional
>issues that were not included within
>the act, and that must be resolved in order to promote the fair and orderly
>implementation of the act." (S.B.420, § (1)(b) & (c), italics added.) To that
>end, the Medical Marijuana Program provides limited immunity from arrest to
>persons who may have a defense under the Compassionate Use Act, if they
>voluntarily provide information which would, in effect, prove their medical
>marijuana defense in advance. (See § 11362.71, subd. (e); § 11362.715, subd.
>(a).) The program also resolves the problem of "carrying otherwise legally
>cultivated and possessed marijuana down a hallway to the patient's room." (
>People v. Trippet (1997) 56 Cal.App.4th 1532, 1550.) It did so by creating new
>affirmative defenses which conditionally allow the collective cultivation of
>marijuana, as [*14] well as the transportation
>and compensation for the actual
>expenses of a qualified patient or person with an identification card. (See §§
>11362.765, 11362.77, 11362.775; Urziceanu, supra, 132 Cal.App.4th at p. 786;
>People v. Frazier (2005) 128 Cal.App.4th 807, 826.)
>
> Appellant has not demonstrated that he is affected by the voluntary program
>in which he has elected not to participate. Nor
>has he demonstrated how he would
>be affected by its invalidation. As appellant
>did not allege that he applied for
>an identification card or that harm might come to him if he did apply for one,
>and he did not allege that he is interested as a
>taxpayer, or even that he is a
>taxpayer, he has alleged no special interest
>over and above the interest held in
>common with the public at large. (See Carsten v. Psychology Examining Com.,
>supra, 27 Cal.3d at pp. 796-797.)
>
> Appellant has similarly failed to present a controversy ripe for
>adjudication. (See Pacific Legal Foundation, supra, 33 Cal.3d at pp. 171-173.)
>"In determining whether a controversy is ripe, we use a two-pronged test: (1)
>whether the dispute is sufficiently concrete [*15] to make declaratory relief
>appropriate; and (2) whether the withholding of judicial consideration will
>result in a hardship to the parties. [Citation.] . . . Under the second prong,
>the courts will not intervene merely to settle a difference of opinion; there
>must be an imminent and significant hardship inherent in further delay.
>[Citation.]" (Farm Sanctuary, Inc. v. Department
>of Food & Agriculture (1998) 63
>Cal.App.4th 495, 502.) Thus, appellant's assertion that the Medical Marijuana
>Program is unconstitutional on its face does not, standing alone, make
>declaratory relief appropriate. Nor does his observation that everyone suffers
>when there is uncertainty in the law suffice to demonstrate significant and
>imminent hardship.
>
> There are no facts alleged in the petition or argued here to indicate that
>the issues cannot await resolution until the application of persons who may be
>directly affected by the Medical Marijuana Program. We conclude that appellant
>does not have standing to challenge the statute,
>and that the issue is not ripe
>for review. We decline to issue an advisory opinion. (See Pacific Legal
>Foundation, supra, 33 Cal.3d at p. 170.) [*16]
>
> DISPOSITION
>
> The appeal is dismissed. Each party shall bear its own costs.
>
> MANELLA, J.
>
> We concur:
>
> EPSTEIN, P.J.
>
> WILLHITE, J.
>
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>Send To: FIGUEROA, OMAR
> PIER 5 LAW OFFICES
> 506 BROADWAY
> SAN FRANCISCO, CA 94133