SAN DIEGO (AP) — Federal law does not pre-empt state law in a court battle over the licensing of medical marijuana, an appeals court has ruled.
San Diego and San Bernardino counties had argued that issuing identification cards to eligible users, as required by the 1996 state law, would violate federal law, which does not recognize the state measure.
But the appeals court concluded Thursday that ID card laws "do not pose a significant impediment" to the federal Controlled Substances Act because that law is designed to "combat recreational drug use, not to regulate a state's medical practices."
San Diego supervisors had sued to overturn the state law after it was passed by voters in 1996, but a Superior Court judge ruled against them in 2006. The county appealed last year and was joined by San Bernardino.
The counties have 40 days to either appeal Thursday's ruling to the California Supreme Court or implement an ID card program.
"The court didn't really get to the key issue," said Thomas D. Bunton, senior deputy county counsel in San Diego. "(Federal law) clearly regulates medical practices. It says marijuana has no currently accepted medical use."
1 comment:
"The Patrick Kelly Project" -- AN UNPARALLELED OPPORTUNITY TO
DECRIMINALIZE CANNABIS IN CALIFORNIA
If you are a California resident "interested" in marijuana law, for a limited time only you are eligible to comment to the state Supreme Court as it contemplates whether to scrap a recent Appeals Court opinion removing limits on medical marijuana possession.
Removing those limits forces the state legislature to reform the real problem with marijuana regulation: the prohibition statutes against possession, cultivation, and transportation of cannabis in California: Health and Safety Code sections 11357 and so on.
What's at stake is the possibility of total reform of marijuana law in California.
You are invited to participate in the newly formed PATRICK KELLY CANNABIS FREEDOM PROJECT.
Be aware that this initiative will probably be opposed by the well heeled "establishment" of marijuana advocacy organizations you may be accustomed to supporting with financial donations. Just ignore them and follow your brain as you read the following paragraphs.
While lawmakers have spend countless hours over a more than a decade trying to rationalize Prop 215, medical marijuana is a shambles. What's needed is a fresh start, and the Kelly decision is a brick through a dirty window letting in light and air for the first time since 1996.
While in 2003, the state legislature established the "safe harbor amounts" in SB 420 to shield patients from arrest, they are readily available for over zealous prosecutors to use as a sword to convict sick people growing or possessing cannabis in excess of those amounts, (six mature, 12 immature plants plus 8 ounces of dried product).
Defendant and appellant Patrick Kelly was snitched on by a neighbor. He had 12 ounces of dried pot and a few plants to treat his hepatitis, chronic back pain and cirrhosis. He was convicted in Los Angeles courts despite making an affirmative defense under the Compassionate Use Act. The prosecutor reminded the jury over and over the defendant had no special medical recommendation for as much as 12 ounces.
Kelly's attorney, Gloria Cohen of Oakland was appointed by the Appeals Court after he accused his trial attorney of incompetence. Cohen pointed out that the legislature cannot modify a voter passed initiative and the court unanimously agreed.
In one fell swoop, years of wrangling in Sacramento about how to fix Proposition 215 were nullified. And well done. It can't be fixed, it has to be surpassed.
AG Appeals to the Supreme Court
What's going on now is that attorney general Edmund G. Brown is contemplating another run for the governorship of our fair state in 2010 and needs to show an iron fist when it comes to pot smokers.
He has appealed the Kelly decision to the California Supreme Court, asking for "depublication" or "review."
Depublication is a legal term for erasing the opinion with no explanation. Review is a full consideration with evidence and testimony possibly leading to "reversal." If the Supreme Court depublishes or reverses Kelly, no one else will be able to raise the same defense.
While he talks about compassionate this and that, Brown's legal arguments are cynical. We all know that the "threshold" amounts in SB 420 are actually caps defining what is legal for patients to possess whether or not they are in the voluntary ID card program. His lieutenants's letter brief ends unapologetically calling for resestablishement of the status quo.
As a good politician, Jerry Brown has lined up support from both left and right to butt cover his position. Along with law enforcement groups, we find the ACLU and ASA supporting his argument which the Appeals Court in the Kelly decision footnotes call "meritless.."
Why do these groups which supposedly represent medical marijuana patients and oppose the war on drugs want Kelly to be depublished?
Could it be they are more interested in seeing their fellow Democrat Jerry Brown replace Republican Arnold Schwarzeneger in the governor's mansion than in fighting for marijuana liberation? Why don't you ask them?
What Brown is saying is that the SB420 limits are constitutional because law enforcement needs them to be. And well they might. If the Kelly decision stands, who knows how many marijuana prisoners will appeal their convictions and go free. Who knows how many legitimate patients will finally be able to use the Prop 215 defense as the proponents intended, no limits attached.
WHAT YOU CAN DO:
Only those familiar with the California Rules of Court know you don't have to be a party to the case or an attorney to comment to the California Supreme Court at this time. Any "interested person" in California may do so. through a simple letter as described below.
Independently of Kelly and his attorney, Richard Johnson, Green Party marijuana freedom advocate of Mendocino County asks you to carefully but quickly draft and send such a "letter brief" of opposition to depublication of Kelly. He calls this the PATRICK KELLY CANNABIS FREEDOM PROJECT.
In that letter, you should justify your "interest" in the matter at hand by describing something about California medical marijuana law unique to yourself.
Here are some examples:
• I currently advocate a local or statewide reform of marijuana law in California that depends on continued validity of the Kelly decision;
• I am a defendant in a California criminal case that would be impacted by the Kelly decision;
• I possess, maintain or cultivate cannabis in California for medical purposes in excess of the SB420 limits, so I am vulnerable to arrest and prosecution under SB420.
• I am or could be party to a California lawsuit that would be impacted by the Kelly decision.
Or: "I am a taxpaying California voter and I want the War on Marijuana to end."
If the Supreme Court accepts your letter, you'll see your name in the online docket at
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=546238&doc_no=S164830
The more letters for freedom supporting Mr. Kelly, the less former and would be Govenor Brown's strategy to reimpose partial prohibition is going to work.
(To support this project, send a suggested $20 donation to Richard Johnson, Cannabis Freedom Fighter, P.O. Box 533, Talmage, CA 95481.)
SAMPLE LETTER:
Below is a sample letter you can use. Sign it with your full legal name. Make it simple, in good English and to the point. Print it on clean white recycled paper with 13 point serif type. Make it no more than than 2000 words or 4 pages and send 14 copies to the address provided, and do it now.
Send a copy to Green Party Chair Richard Johnson, P.O. Box 533, Talmage, CA 95481.
For more info, email richard@mendocinocountry.com with KELLY PROJECT as the subject.
00000000000000000000000000000000000000000000000
(Date)
The Honorable Ronald M. George, Chief Justice of California and The Honorable Associate Justices of the Supreme Court of California
Supreme Court of California
350 McAllister Street,
San Francisco, CA 94102-4783
RE: Supreme Court Case # S164830
People of the State of California v. Patrick K. Kelly
Second District Court of Appeal, Div. 3, Case Nos. B195624, B201234 Superior Court of California, County of Los Angeles, Case #VA092724'
OPPOSITION TO DEPUBLICATION OF SECOND DISTRICT APPEALS COURT RULING IN PEOPLE v. KELLY
Dear Chief Justice George and Associate Justices;
On June 30, 2008, the People of the State of California through Michael R Johnsen on behalf of Attorney General Edmund G. Brown requested depublication of the above opinion pursuant to California Rules of Court 8.1125.
On July 10, RICHARD JOHNSON, Green Party marijuana freedom activist of Mendocino County filed a response to the above People's Request pursuant to California Rules of Court 8.1125(b)(1).
Other requests for depublication were filed with permission of the
court on July 23 by the American Civil Liberties Union Foundation and Americans for Safe Access,
On July 15, defendant and appellant Patrick K. Kelly through his attorney also filed an opposition.. On July 31, a third opposition to depublication was filed. July 31.
This court apparently anticipates further requests for depublication from such law enforcement organizations as The California State Sheriff's Association, the California Police Chief's Association and the California Peace Officers Association.
Therefore, the 10-day time limit appears to be suspended. Each new request for depublication may be opposed by an "interested person." (CRC 8.1125(b)(1).
THIS WRITER'S interest in opposing the depublication of the Second Appeals Court opinion in Kelly is:
------------------------------------------------
FIRST ARGUMENT'
-------------------------------------------------------
SECOND ARGUMENT
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THIRD ARGUMENT
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(Total letter less than 2,000 words)
CONCLUSION
Therefore, for the above reasons this writer respectfully requests this Court not depublish the Appeals Court's opinion in People v. Kelly.
000000000000000000000000000000000000000
Sign with your real name.
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