Key Medical Marijuana Decisions – City of Garden Grove v. Superior Court

2. Does the CUA provide a defense to probation revocation?

3. Does the condition of probation to obey federal criminal laws prevent a probationer from asserting a defense under the CUA?

2(a). First, turning to “the statute governing the disposition of controlled substances in cases that have been dismissed before trial”, “[u]nless the substance’s possession is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute.” Id. at 377, 380. Health & Safety Code section 11473.5 provides: “All seizures of controlled substances . . . which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal . . . , shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant.” 157 Cal. App. 4th at 377−78 (emphasis in original). “If, as here, the defendant’s possession of a controlled substance is lawful under California law, then the substance is ‘lawfully possessed’ for purposes of that section.” Id. at 380. “In other words, the question of whether a substance is lawfully possessed for purposes of section 11473.5 turns on state, not federal law.” Id. Although “state courts generally have the authority to render binding judicial decisions that rest on their own interpretation of federal law”, “saying state judges may interpret federal law is a far cry from saying they may invoke it to punish conduct that is legally permissible under state law.” Id. (citations and internal quotations omitted) (emphasis in original). “[J]udicial enforcement of federal drug policy is precluded in this case because the act in question—possession of medical marijuana—does not constitute an offense against the laws of both the state and the federal government.” Id. “Because the act is strictly a federal offense, the state has ‘no power to punish . . . [it] . . . as such.” Id. (emphasis in original) (quoting People v. Tilehkooh, 113 Cal. App. 4th 1433, 1445 (2003)). “Indeed, . . . all the trial courts in the state, would be astonished if prosecutors began filing federal charges in state courts.” Id.

2(b). Second, although “the supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law”, “federal supremacy principles do not prohibit the return of marijuana to a qualified user whose possession of the drug is legally sanctioned under state law.” 157 Cal. App. 4th at 380, 386 (citations, footnote, and internal quotations omitted). “[A]ny consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . a Federal Act unless that [is] the clear and manifest purpose of Congress.” Id. at 382. “But in enacting the [Controlled Substances Act (“CSA”)], Congress made it clear it did not intend to preempt the states on the issue of drug regulation.” Id. at 383. “It provides: ‘No provision of [the CSA] shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together.’” Id. (citing 21 U.S.C. § 903). “This express statement by Congress that the federal drug law does not generally preempt state law gives the usual assumption against preemption additional force.” Id. (citations omitted). Moreover, the CSA’s “abjuration of preemption is simply too clear” to suggest “Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant’s medical marijuana under state law would be absolutely anathema to congressional intent.” Id.

3. Due process of the law requires law enforcement to return confiscated marijuana legally possessed under state law. See 157 Cal. App. 4th at 389. Although “neither the CUA, the MMP[A] nor section 11473.5 expressly provide for the return of lawfully possessed marijuana that has been seized by the police”, “no state shall ‘deprive any person of life, liberty, or property, without due process of law.’” Id. at 387 (emphasis in original) (quoting U.S. Const., 14th Amend., § 1) (citing Cal. Const., art. I, § 15). “It is beyond dispute that [t]he right to regain possession of one’s property is a substantial right” and “[c]ontinued official retention of legal property with no further criminal action pending violates the owner[’]s due process rights.” Id. (citations and internal quotations omitted). Chavez v. Superior Court, 123 Cal. App. 4th 104 (2004), “is factually inapposite” because the defendant in Chavez “was not entitled to the CUA’s protections in the first place” and, here, the real party in interest “was in lawful possession of his marijuana under state law.” Id. at 388.

2. “[A]mici also fear the Garden Grove police would be violating federal law . . . .” 157 Cal. App. 4th at 390. “However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order.” Id. “They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties.” Id. Also, “it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d)” which “provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties.” Id. “As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana.” Id. “We are not aware of a single instance in which this has ever occurred.” Id. “We are confident, had there been such a phenomenon, it would have been brought to our attention.” Id.

3. “Amici for the City also claim that ordering the return of . . . marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering ‘the law of the land,’ which includes federal law.” 157 Cal. App. 4th at 390. “But it must be remembered it is not the job of the local police to enforce the federal drug laws as such.” Id. at 390−91. “That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federal form of government.” “By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism . . . .” Id. at 391. “Indeed, [o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” Id. (citations and internal quotations omitted). “The CUA and MMP[A] are a clear manifestation of that decision-making process.” Id.

First, City of Garden Grove continues the line of decisions which eventually culminate in a California court holding that the Federal Controlled Substances Act “[d]oes [n]ot [p]reempt the CUA or the MMPA.” Qualified Patients Ass’n v. City of Anaheim, 187 Cal. App. 4th 734, 756, 115 Cal. Rptr. 3d 89, 105 (2010); see also Cnty. of San Diego v. San Diego NORML, 165 Cal. App. 4th 798, 809, 81 Cal. Rptr. 3d 461, 468 (2008) (holding “provisions of the MMP[A] are not preempted”); People v. Tilehkooh, 113 Cal. App. 4th 1433, 1445 (2003) (holding the condition of probation to obey federal criminal laws does not prevent a probationer from asserting a defense under the CUA). That noted, the preemption holding of City of Garden Grove only addresses return of medical marijuana lawfully possessed per the CUA and MMPA. The court in City of Garden Grove specifically disavows the “broader issue of whether federal law generally preempts California’s medical marijuana laws” as not before the court. 157 Cal. App. 4th at 391 n.11.

Second, City of Garden Grove does not overrule Chavez v. Superior Court, 123 Cal. App. 4th 104 (2004). To further illustrate:

“[Garden Grove] distinguished [Chavez] in which a defendant requested return of a ‘reasonable amount’ of marijuana for medicinal purposes after charges were dismissed in the furtherance of justice because he was already serving time on another case. In [Chavez], the defendant was not a qualified user under the Act and not in lawful possession of the marijuana under section 11473.5. Therefore, the marijuana had to be destroyed.”

Cnty. of Butte v. Superior Court, 175 Cal. App. 4th 729, 736 (2009).

These quick jurisprudential points noted, City of Garden Grove is undoubtedly an important decision for patient rights and California’s ongoing attempts to reform marijuana prohibition. As can be seen from the “Quotable Excerpts” section below, the opinion is chocked full of pro-medical marijuana and pro-federalism zingers. However, City of Garden Grove is one of the more difficult opinions to capture adequately via a case summary. After all, the opinion starts by saying the court is confronted with a “facially anomalous” and “terra incognita” request and that its “conclusions are therefore more a matter of analytical accouchement than precedential accretion” and ends with an expansive section on “Other Considerations” (i.e. dicta). In other words, this case summary aside, the opinion in its entirety is recommended reading as a matter of “analytical accouchement”.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 362, 68 Cal. Rptr. 3d 656, 658 (2007).

While possession of marijuana is generally prohibited, its use for medicinal purposes has been legal under state law for over a decade.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 371, 68 Cal. Rptr. 3d 656, 665 (2007).

When applicable, however, the CUA renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 372, 68 Cal. Rptr. 3d 656, 666 (2007) (citing People v. Mower, 28 Cal.4th 457, 471 (2002)).

The possession and cultivation become just as lawful as the possession and acquisition of any prescription drug.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 372, 68 Cal. Rptr. 3d 656, 666 (2007) (citing People v. Mower, 28 Cal.4th 457, 482 (2002)).

In enacting the MMP, the Legislature quite clearly intended to broaden the scope of the CUA in order to facilitate greater access to marijuana for those patients in need of the drug.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 373, 68 Cal. Rptr. 3d 656, 667 (2007) (citations omitted).

Nothing in the CUA or MMP appears to require a qualified patient to provide evidence regarding the source of his or her marijuana.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 374, 68 Cal. Rptr. 3d 656, 668 (2007).

At any rate, the statement from his physician states Kha has a serious medical condition and may benefit from the use of medical cannabis, and that puts Kha in the category of persons the CUA and MMP were designed to protect.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 374, 68 Cal. Rptr. 3d 656, 668 (2007) (citations omitted).

We are therefore impelled to the conclusion it would be illogical to find the MMP covers one provision, but not the other. Such a result would lead to the absurd consequence of permitting a defendant who drives with a large amount of marijuana to invoke the MMP . . . , while excluding drivers who transport the small amount covered by the Vehicle Code section.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 375, 68 Cal. Rptr. 3d 656, 669 (2007) (citations omitted).

While there is no shortage of learned discourse pertaining to marijuana, misunderstanding about it still abounds. For example, many would be surprised to learn the federal government did not directly criminalize the possession and sale of marijuana until 1970.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 376, 68 Cal. Rptr. 3d 656, 669 (2007) (citations omitted).

Equally surprising, perhaps, is that there is a genuine difference of expert opinion as to whether cannabis has therapeutic value to certain individuals.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 376, 68 Cal. Rptr. 3d 656, 670 (2007) (citations omitted).

While there is evidence marijuana use may be appropriate for a small class of patients who do not respond well to, or do not tolerate, available prescription drugs . . . , and its use in such cases has prompted growing acceptance of medical marijuana at the state level . . . , the drug is now generally prohibited under federal law.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 376, 68 Cal. Rptr. 3d 656, 670 (2007) (citations and internal quotations omitted).

Tilehkooh’s reasoning is apropos here, insofar as the City is not attempting to enforce a federal sanction attached to the federal marijuana laws. Instead, it seeks to enforce the sanction of property destruction under state law as expressed in section 11473.5. But to paraphrase Tilehkooh, the City cannot do indirectly what it could not do directly. That is what it seeks to do in destroying Kha’s marijuana when it cannot punish him under the criminal law for possessing it.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 379, 68 Cal. Rptr. 3d 656, 672 (2007) (citing People v. Tilehkooh, 113 Cal. App. 4th 1433 (2003)).

Applying the reasons of Tilehkooh, we think judicial enforcement of federal drug policy is precluded in this case because the act in question—possession of medical marijuana—does not constitute an offense against the laws of both the state and the federal government. Because the act is strictly a federal offense, the state has “no power to punish . . . [it] . . . as such.” Indeed, we, and all the trial courts in the state, would be astonished if prosecutors began filing federal charges in state courts.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 380, 68 Cal. Rptr. 3d 656, 673 (2007) (emphasis in original) (quoting People v. Tilehkooh, 113 Cal. App. 4th 1433, 1445 (2003)).

If, as here, the defendant’s possession of a controlled substance is lawful under California law, then the substance is “lawfully possessed” for purposes of that section.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 380, 68 Cal. Rptr. 3d 656, 673 (2007).

The Raich court merely examined the validity of the CSA under the Commerce Clause; it did not go further and examine the relationship between the CSA and the CUA.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 382, 68 Cal. Rptr. 3d 656, 674 (2007) (citing Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005)).

Consequently, the high court’s decision [in Raich] did not sound the death knell of the CUA in state court proceedings.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 382, 68 Cal. Rptr. 3d 656, 674 (2007) (citing Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005)).

The fact is, the structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 382, 68 Cal. Rptr. 3d 656, 674 (2007) (citations and internal quotations omitted).

Affording the states broad authority on these matters promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 382, 68 Cal. Rptr. 3d 656, 674−75 (2007) (citations and internal quotations omitted).

Therefore, any consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . a Federal Act unless that [is] the clear and manifest purpose of Congress.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 382, 68 Cal. Rptr. 3d 656, 675 (2007) (citations and internal quotations omitted).

[The Controlled Substance Act’s] goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 383, 68 Cal. Rptr. 3d 656, 675 (2007) (citations omitted).

The CUA does not authorize doctors to use their prescription-writing powers “to engage in illicit drug dealing and trafficking as conventionally understood.” Instead, the act grants doctors the authority to recommend marijuana to their patients for medicinal purposes. No other use is contemplated.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 383, 68 Cal. Rptr. 3d 656, 676 (2007).

It is even more unreasonable to believe returning marijuana to qualified patients who have had it seized by local police will hinder the federal government’s enforcement efforts. Practically speaking, this subset of medical marijuana users is too small to make a measurable impact on the war on drugs. Not only are their numbers meager, persons seeking the return of their medical marijuana are not entitled to possess the drug in such quantities as would make them likely candidates for federal prosecution.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 384, 68 Cal. Rptr. 3d 656, 676 (2007) (citations omitted).

So, what we are left with is a state statutory scheme that limits state prosecution for medical marijuana possession but does not limit enforcement of the federal drug laws. This scenario simply does not implicate federal supremacy concerns.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 385, 68 Cal. Rptr. 3d 656, 676−77 (2007) (citations omitted).

Similarly, here, there is no conflict based on the fact that Congress has chosen to prohibit the possession of medical marijuana, while California has chosen not to.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 385, 68 Cal. Rptr. 3d 656, 677 (2007).

It is quite clear California has chosen a policy that is at odds with the federal government’s. But the important point for purposes of this case is that state law does not interfere with the federal government’s prerogative to criminalize marijuana.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 386, 68 Cal. Rptr. 3d 656, 678 (2007).

It is beyond dispute that [t]he right to regain possession of one’s property is a substantial right. . . . Continued official retention of legal property with no further criminal action pending violates the owners due process rights.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 387, 68 Cal. Rptr. 3d 656, 678 (2007) (citations and internal quotations omitted).

Withholding small amounts of marijuana from people like Kha who are qualified patients under the CUA would frustrate the will of the people to ensure such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction.

City of Garden Grove v. Superior Court, 157 Cal.App.4th 355, 388, 68 Cal.Rptr.3d 656, 679 (2007) (citing the CUA).

Kha . . . is a qualified patient whose marijuana possession was legally sanctioned under state law. That is why he was not subjected to a criminal trial, and that is why the state cannot destroy his marijuana. It is also why the police cannot continue to retain his marijuana. Because Kha is legally entitled to possess it, due process and fundamental fairness dictate that it be returned to him.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 388−89, 68 Cal. Rptr. 3d 656, 680 (2007).

But Kha is clearly not a criminal defendant with respect to the subject marijuana. Since the prosecution dismissed the drug charge he was facing, he is nothing more than an aggrieved citizen who is seeking the return of his property. The terms “criminal” and “defendant” do not aptly apply to him.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 389, 68 Cal. Rptr. 3d 656, 680 (2007) (emphasis in original).

Furthermore, our Supreme Court has ruled that when applicable, the CUA renders possession and cultivation of … marijuana noncriminal for a qualified patient or primary caregiver. . . . The possession and cultivation become no more criminal . . . than the possession and acquisition of any prescription drug. . . . Translation: Medical marijuana is lawful under the terms and conditions set forth in the CUA.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 389, 68 Cal. Rptr. 3d 656, 680 (2007) (citing People v. Mower, 28 Cal.4th 457, 471, 482 (2002)).

As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 390, 68 Cal. Rptr. 3d 656, 681 (2007).

But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA.

City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355, 390−91, 68 Cal. Rptr. 3d 656, 681 (2007) (citing People v. Mower, 28 Cal.4th 457, 471 (2002)).