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The how to letter for county bans from Letitia Pepper

by admin-mcleep on January 10th, 2016
    Please post and share this information as widely and promptly as possible.  If
you would like me to speak to any group of concerned patients, please e-mail me and
I will try to accommodate you.    This information was prepared by Letitia Pepper, a
licensed California attorney who is the volunteer Director of Legal and Legislative
Analysis for Crusaders for Patients' Rights, a true patient education and advocacy
nonprofit for real medical marijuana patients, not a front for people intent on
creating a for-profit cannabis industry at the expense of patients' Compassionate
Use Act (CUA) rights.
       The first step any and all patients can do is to send your city council, or
county board of supervisors, this notice, as a resident of whatever place you live. 
If you want, you can send it in from "Anonymous," but I suggest that you keep a copy
and proof of mailing it, e.g., make a copy of the addressed, stamped envelope
stapled to a copy of this notice with a note of the date of
mailing.                   NOTICE OF UNCONSTITUTIONALITY OF
    "This local ordinance to restrict the cultivation and possession of medical
marijuana, adopted pursuant to the State's Medical Marijuana Regulation and Safety
Act (MMRSA) will prevent me, [add, as necessary, my spouse, my parent(s), my child
(or children), my housemate(s)] who is/are medical marijuana patient(s), from
cultivating and possessing enough marijuana for my/our personal medicinal uses.  It,
and the MMRSA on which it is based, thus violates California's applicable and
controlling law, the Compassionate Use Act (CUA).  
    "The California Supreme Court, in People v. Kelly (2008) 47 Cal.4th 1008, 1043,
1049, held that medical marijuana patients have the CUA-given right to cultivate and
possess as much marijuana as they need for their personal medicinal uses, and that
any law that attempts to impair or burden such rights is unconstitutional under
California Constitution Article II, Section 10 subdivision (c).) Kelly did not state
that patients only have an affirmative defense from prosecution, because a defendant
cannot have an affirmative defense to a crime without a foundational right to engage
in an act that, without such right, would be a crime, but with such right is not a
crime at all.
      Notably, People v. Kelly was decided the last time the State Legislature
adopted legislation that attempted to limit the amount of marijuana that a patient
could lawfully grow or possess, when it adopted the Medical Marijuana Program Act
(the MMP) which added Health & Safety Code section 11362.77's plant and flower
limits to the CUA. The California Supreme Court held that "By extending the reach of
section 11362.77's quantity limitations beyond those persons who voluntarily
register under the MMP and obtain an identification card that provides protection
against arrest—and by additionally restricting the rights of all "qualified
patients" and "primary caregivers" who fall under the CUA—the challenged language of
section 11362.77 effectuates a change in the CUA that takes away from rights granted
by the initiative statute."  (47Cal.4th at p. 1043, emphasis added.) 
    The Court reiterated the fact that the CUA gives patients the right to possess
and cultivate as much medical marijuana as they need for personal medicinal use
regardless of any state legislation to the contrary: "Whether or not a person
entitled to register under the MMP elects to do so, that individual, so long as he
or she meets the definition of a patient or primary caregiver under the CUA, retains
all the rights afforded by the CUA[, including the right to . . .possess[] or
cultivate[] an amount of marijuana reasonably related to meet his or her current
medical needs."  (Id., at p. 1048, emphasis added, citation omitted.)    The People
v. Kelly Court also explained that this effort to adopt laws that impair Cua-given
rights are unconstitutional because it "constitutes an amendment of the CUA in
violation of California Constitution, article II, section 10, subdivision (c)." 
(Id., at p. 1042.)
    As the Kelly court noted, "[T]he CUA—unlike many other initiative measures in
recent decades—did not grant the Legislature authority to amend."  (47 Cal.4th,
supra, at p. 1042, footnote omitted.)   And because the Legislature's efforts, via
the MMRSA, just like with the MMP, are a "scheme" that "the Legislature adopted . .
. on its own, without seeking ratification by the electorate," and  that impose more
burdens on medical marijuana patients than allowed under the CUA, they are
unconstitutional.  (Id. at p. 1043.)    This is why the Medical Marijuana Regulation
& Safety Act (MMRSA), and all the local laws adopted pursuant to it, which purport
to limit what patient can grow, and to burden such right by requiring patients to
get licenses, permits, identification cards and jump through other such  hoops, are
unconstitutional, illegal efforts to impair and burden the
constitutionally-protected rights given to patients by the People of the State of
California when they adopted the CUA.    Furthermore, neither the State of
California nor any of its political subdivisions,  e,g,, the counties and cities,
may require any patient to obtain a license, permit, or government-issued ID card as
a condition of cultivation, possession or transportation.  First, possession or
cultivation of even medical marijuana is still illegal under federal law, so
requiring a person to go on record, in any way, as possessing or cultivating it
unconstitutionally violates such person's Fifth Amendment Right against
self-incrimination.  (Leary v. United States (1969) 395 U.S. 6, 12-13.)    Second,
the CUA was intended to make access to medical marijuana safe and affordable. 
Requiring patients to obtain such permits, licenses and cards makes access less
affordable, and thus not only violates the restriction on "burdening" CUA-given
rights, but also violates the intent of the CUA.    The cases cited by cities and
counties in justification of adopting these unlawful ordinances, which were cobbled
together by the self-serving League of Cities and the California Chiefs of Police,
do not make these ordinances lawful.  
    For example, the case of City of Riverside v. Inland Empire Patients Health &
Wellness Center (2013) 56 Cal.4th 729 reached its limited result -- to allow cities
and counties to ban storefront dispensing collectives dispensaries - by ignoring
applicable law and facts.  It failed to mention, e.g., that the State Legislature
had directed the Attorney General to adopt statewide regulations to carry out the
purposes of the CUA, and that the Attorney General had done so, the 2008 Attorney
General Guidelines for the Safety and Nondiversion of Medical Marijuana.  It also
failed to discuss the facts, e.g.,  that (1) if the State itself could not have
impaired patients' access to medical marijuana, then neither could its political
subdivisions, the cities and counties, do so,  and (2) the purpose of government's
police power is to regulate land uses to prevent nuisances.  Any activity authorized
by the People of California, such as the personal cultivation of marijuana for
personal medicinal needs, cannot be deemed a "per se nuisance" and banned as
such.    "More to the point, the Inland Empire Patients Health & Wellness Center
case did not address the issue of personal cultivation.    "The case of Maral v.
City of Live Oak (2013) 221 Cal.App.4th 975, is only a Court of Appeal decision, and
does not control over contrary California Supreme Court opinions.  Thus, Maral,
which held that patients have no "right" to cultivate medical marijuana, and relied
on another Court of  Appeal opinion to state that "The CUA creates only a limited
defense to certain crimes, 'not a constitutional right to obtain marijuana,' "
citing People v. Urziceanu (2005) 132 Cal.App.4th747 , 774.  But Maral did not
cite,let  alone attempt to discuss, People v. KELLY, which held that patients do
have a constitutionally-protected right to cultivate.   "I therefore will not obtain
a license, a permit, a medical marijuana ID card issued by anyone, or do anything
more than what the CUA requires, to wit, I will obtain a doctor's recommendation
that medical marijuana might help my serious medical problem.  If, in the future, I
am cited for violating this unlawful and unconstitutional ordinance or the MMRSA, I,
like all medical marijuana patients, will raise all these issues, and all such
others as also may be applicable, in my defense and, if I so decide, in a
countersuit against the government entity that is unconstitutionally violating my
constitutionally-protected, CUA-given rights."

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