HomeMy WebLinkAboutAMICUS CURIAE SUPPORT IN MEDICAL MARIJUANA CASE - CITY OF GA �I� r
Council/Agency Meeting Held: !g-zZZ;LlDD
Deferred/Continued to:
XAp roved ❑ Conditi Wally Approved ❑ Denied City rk' Sign re
Council Meeting Date: May 7, 2007 Department ID Number:
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Jennifer McGr ity Attorney
PREPARED BY: Jennifer McGr ity Attorney
SUBJECT: Request for Amicus Support in Medical Marijuana Case, City of Garden
Grove v. Orange County Superior Court, Real Party-in-Interest Felix
Kha; Case No. G036250
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue:
Our office has received a request that the City of Huntington Beach participate as amicus
curiae in support of the City of Garden Grove, for the matter entitled, City of Garden Grove V.
Orange County Superior Court (Kha) (2006) G036250, 4th District Court of Appeal, Division
3. The specific issue in the case is whether the defendant's medical marijuana, which is in
the possession of the City of Garden Grove, must be returned to him after dismissal of the
state law charges against him.
Funding Source: No funds are required.
Recommended Action: Approve and authorize participation as amicus curiae in support of
the City of Garden Grove for the matter entitled, City of Garden Grove v. Orange County
Superior Court (Kha), G036250, 4th District Court of Appeal, Division 3.
Alternative Action(s): Do not participate as amicus curiae in support of the City of Garden
Grove for the matter entitled, City of Garden Grove v. Orange County Superior Court (Kha),
G036250, 4th District Court of Appeal, Division 3.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: May 7, 2007 DEPARTMENT ID NUMBER:
Analysis:
Martin Mayer, of the law firm Jones and Mayer, has filed an amicus brief in support of the
City of Garden Grove in the above-referenced matter, on behalf of the California State
Sheriff's Association, the California Police Chief's Association, and the California Peace
Officer's Association. At this time the League of California Cities has declined to lend its
support. However, in an effort to have as much individual city support as possible, Mr. Mayer
has inquired whether the City of Huntington Beach would like to join in the amicus brief filed
by his office. A copy of the request and the above-referenced amicus brief is attached for
your review.
This case arises from the City of Garden's Grove appeal of a superior court's order to return
medical marijuana to a criminal defendant once the state law criminal charges against him
were dismissed. The important question of interest to local law enforcement agencies is
whether the court can order the return of marijuana, which is contraband under federal law
and therefore cannot be lawfully possessed.
Also pending before the Court of Appeal as a companion case to City of Garden Grove is
Spray v. Superior Court of California (2006) G037541, in which the City of Huntington Beach
is Real Party in Interest. In this case, the defendant appeals the court's denial of his motion
to return his medical marijuana, which is in the possession of the City of Huntington Beach.
A third case, People v. David Lucas, Real Party in Interest the City of Huntington Beach,
(2006) Case No. 06WM12470, Orange County Superior Court, is currently pending in the
lower court and involves a court order that the City of Huntington Beach return the
defendant's medical marijuana. The City requested and has been granted a Stay of
Enforcement of the Order to Return Property until the two appellate cases are ultimately
decided.
It is the City Attorney's recommendation that the City join in as amicus on this request as the
case addresses important issues regarding the obligation of cities to comply with court orders
to return medical marijuana to defendants, in contravention of federal law that prohibits the
distribution and possession of this controlled substance.
Strategic Plan Goal: N/A
Environmental Status: N/A
Attachment(s):
NumberCity Clerk's
Page
1. Correspondence from Jones & Mayer dated 3/22/07 Requesting
Amicus Brief Support
-2- 4/23/2007 1:50 PM
ATTACHMENT NO . 1
J & M
JONES & MAYER
ATTORNEYS AT LAW
3777 NORTH HARBOR BOULEVARD • FULLERTON,CALIFORNIA 92835
Richard D.Jones* (714)446-1400 • (562)697-1751 • FAX(714)446-1448
Martin J.Mayer
Kimberly Hall Barlow
Of Counsel
Christian L.Bettenhausen Michael R Capizzi
Paul R.Coble Jeffrey B Love
Michael Q.Do
Thomas P.Duarte
Elizabeth R.Feffer
Elena Q.Gerli Consultant
Krisla MacNevin Jee Mervin D.Feinstein
Christina J.Johnson March 22, 2007 Steven H.Staveley
Gregory P.Palmer
Danny L.Peelman
Harold W.Potter
Dean J.Pucci �,_�.m
Yolanda M.Sununerhill I d! 3m
IL a
Ivy M.Tsai
*a Professional Law Corporation APR 0 4 2007
CITY OF k1UNTINOTON BEACH
ADMINISTRATIVE OFFICE
To All California Cities:
Re: Requesting Amicus Brief Support - Medical Marijuana Case
We have filed an amicus brief in support of the City of Garden Grove in the case of
Garden Grove v. Orange County Superior Court, Real Party in Interest Felix Kha, Case No.
G036250, 4th District Court of Appeal, Division 3. (Amicus briefs have also been filed by
Americans for Safe Access and the Attorney General's Office.) The brief was filed on behalf of
the California State Sheriffs' Association, the California Police Chiefs' Association, and the
California Peace Officers' Association.
At this time, the League has declined to lend its support. However,we would like to have
as much individual city support as possible. Please consider whether your City would like to join
in the amicus brief we filed. Following is a brief summary of the case.
The specific issue in the case is whether Kha's medical marijuana, in the possession of
the City of Garden Grove, must be returned to him after dismissal of the charges against him. (He
was stopped for failing to stop for a red traffic signal, the marijuana was discovered, and he was
cited for possession in his vehicle in violation of Cal. Veh. Code Section 23222 (b). The charges
were dismissed by the District Attorney because of Kha's recommendation from a physician, but
the return of the marijuana was opposed by the DA). The important question of interest to the
law enforcement amici curiae that we represent is whether the court can order the return of the
marijuana, since it is contraband under federal law and is, therefore, not lawfully possessed.
In addition, returning the marijuana would itself violate federal law, constituting
distribution of a controlled substance. Because of the specific charge against the defendant in
this case, there is also the claim that his possession was not covered by the Compassionate Use
February 26, 2007
Page 2
Act, which provides only a defense for Health and Safety Code violations, not Vehicle Code
violations. We have also addressed the preemption issue that no court has yet directly addressed,
namely whether the Compassionate Use Act is wholly preempted by the federal Controlled
Substances Act.
The Court of Appeal has already accepted our brief for filing in the case. Additional
amicus briefs may be submitted until April 6, 2007. However, our brief may be easily joined by
your City if you are interested in the important issues in this case being decided in a manner
which reduces the conflict presented to law enforcement in the return of medical marijuana to
criminal defendants.
Please let us know if your City is interested in joining our amicus brief in support of the
City of Garden Grove, or if you need any more information on the case. A reduced copy of the
approved amicus brief is enclosed for your convenience. If you would like a full copy of the
brief, one will be provided to you upon request in either hard or electronic copy.
Please contact us at your earliest convenience, preferably prior to April 4, 2007, if you
would like us to add your City to the joinder that we will be preparing for those cities that have
already expressed an interest in supporting our brief, or you may separately prepare your own
joinder for your City individually. Please communicate any requests or information regarding
this matter to Krista Jee by telephone at (714) 446-1400 or by e-mail at kmj@jones-mayer.com.
We thank you in advance for your careful consideration of these important issues.
V truly yours,
�t
Mart n J. ayer d
Krista Mac n Jee
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COUkIf 69 d-pagdt,�gW 0I84 DN 3 People ex rel.Department of Conservation v.El Dorado County,36 Cal.4th 971.......... 8
L I People Fisher, al.AppAth 1147
DEC 19 2006 ..........................................
G036250 le v 96 C 14
People v.Galambos,104 Ca1.App.4th 1147................................................................... 10
Deputy Clerk 1
People v.Gershenhorn,225 Ca1.App.2d 122 ........................................
COURT OF APPEAL OF THE STATE OF CALIFORNIA 4
People v.Laiwa,34 Cal.3d 711 ........................
FOURTH APPELLATE DISTRICT,DIVISION THREE 4
People V.Mower,28 CalAth 457............................... 14
THE CITY OF GARDEN GROVE, Case No.G036250 People C ) C
v.Superior Court(Shayan,21 al.AppAth 621 ....................
Petitioner, [Orange County Superior Court
People v.Tilehkooh,113 Ca1.App.4th 1433 ...............
Case No.GG989951 .................................................... 18
V. People v.Tuttle,242 Ca1.App.2d 683 ....................... 5
SUPERIOR COURT OF ORANGE COUNTY;
Stocks v.City oflrvine,114 Cal.App.3d 520.......................
Suki Inc.v.Superior Court
,60 Cal.App.3d 616 .............................................................. 4
Respondent,
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FEDERAL STATUTES
FELI7{
S § 0
i 2..........
Real Party i t Intetest. 16
1. I 21 U.S.C.§802............................................................
AMICI CURIAE BRIEF IN SUPPORT OF PETITIONER I 21 U.S.C.§812.......................................................................... ................................. 15
I 21 U.S.C.§§823(f),841(a)(1),844................................................................................ 15
On Appeal from the Orange County Superior Court 21 U.S.C.§828............................................................................................................... 19
The Honorable Linda S.Marks
21 U.S.C.§841 ............................................................................................................... 19
JONES&MAYER
Martin J.Mayer,Esq. i 21 U.S.C.§844...................................................
Krista MacNevin Jee,Esq. 16
3717 North Harbor Boulevard I 21 U.S.C.§881 ..................
Fullerton,Califomia 92935
Telephone:(714)446-1400
Facsimile:(714)446-1449
Attorneys for Amici Curiae,
California State Sheriffs'Association
California Police Chiefs'Association
California Peace Officers'Association
COPY
STATESTATUTES
Cal.Civ.Proc.Code§1085 ............................................................................................ 4 TABLE OF CONTENTS
Cal.Civ.Proc.Code§1086 ............................................................................................. 4
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ............... I
Cal.Health&Safety Code§11362.765......................................................................... 10
PROPOSED BRIEF OF AMICI CURIAE ................... ................. 2
Cal.Health&Safety Code§11475........................................................................... 12,13
Cal.Health&Safety Code§§11362..7,etseq................................................................... 8 I. AMICI CURIAE INTEREST AND BENEFIT TO COURT OF AMCI
CURIAE BRIEF. ............................ .................2
Cal.Penal Code§1413 ............................................................................................... 12 11. STATEMENT OF FACTS. ...................... ................. 3
Cal.Penal Code§1417.5............................................................................................ 9,12
III. EXTRAORDINARY WRIT RELIEF IS PROPER AND WARRANTED ..4
Cal.Penal Code§1417.6................................................................................................ 12
Cal.Penal Code§1538.5................................................................................................. 5 rV. PFTITIONFR HAS STANDING IN THE WRIT PROCEEDING
BROUGHT TO CHALLENGE THE ORDER'S VALIDITY. ......... 7
Cal.Vehicle.Code§23222(b) ........................................................................................ 3
V. THE ORDER IS A VIOLATION OF STATE
Cal.Health&Safety Code§11362.5.............................................................................. 13 AND FEDERAL LAW..................... ............... 9
A. State Law Prohibits the Return of Medical Marijuana ............. 9
Cal.Health&Safety Code§11473.5............................................................................. 13 j B. Federal Law Prohibits the,Return of Medical Marijuana. ......... 14
C. The Order Unlawfully Requires the Distribution of a
Controlled Substance By Petitioner......................... 19
VI. FEDERAL LAW PREEMPTS THE ORDER AND THE
COMPASSIONATE USE ACT. ...............................26
V11. CONCLUSION. .............................................. 28
CERTIFICATE OF COMPLIANCE .................. ................ 32
TO THE HONORABLE PRESIDING JUSTICE OF THE TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF
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CALIFORNIA COURT OF APPEAL: THE CALIFORNIA COURT OF APPEAL:
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF PROPOSED BRIEF OF AMICI CURIAE
The California State Sheriffs'Association,the California Police Chiefs' I. AMICI CURIAE INTEREST AND BENEFIT TO COURT
Association and the California Peace Officers'Association respectively request leave to OF AMICI CURIAE BRIEF.
file the attached brief of Amici Curiae in support of Petitioner,the City of Garden Grove, Amici Curiae are the California State Sheriffs'Association("CSSA"),the
in order to assist this Court in resolving the important issue of law presented in this California Police Chiefs'Association("CPCA"),and the California Peace Officers'
matter. Association("CPOA"). Each of their memberships and interests are discussed below,
The interests of Amici are as stated in the attached brief,Part 1. Applicants CSSA represents each of the fifty-eight(58)elected California Sheriffs. CPCA
endeavor to provide this Court with the perspective of similarly situated law enforcement i represents virtually all of California's Municipal Chiefs of Police. CPOA represents
of all levels regarding the important legal issue raised in this matter,specifically the more than four thousand peace officers,of all rank,throughout the State. The three
importance of officers not being subject to an invalid court order that they return illegal I Associations are interested in this case because the issue presented will have a profound
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contraband to a criminal defendant in violation of State and Federal law. impact on the members of each of the three Associations,as well as every employee
Therefore,Applicants respectfully request leave from the Presiding judge to file I under the command of the state's sheriffs and police chiefs. This includes the
the attached brief of Amici Curiae addressing the above issue. overwhelming majority of peace officers in the State of California.
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-' Dated: December 18,2006 Respectfully submitted, Amici have identified this matter as one of statewide significance in which their
JO MAYER expertise can be of assistance to the Court. This proposed brief offers a broader
g r I perspective of Amici as to the issues on appeal,namely the overarching impact of the
Y�
Martin J. ayer, sq. d
I{rista MacNevin J sq. Court's decision on law enforcement agencies generally and the officers who are,and will
Attorneys for Amici Curiae,
California State Sheriffs'Association I be,subject to orders similar to those at issue in this matter.
California Police Chiefs'Association
California:peaceOfficers'Association
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In particular,if the Court of Appeal finds in favor of-Petitioner,then there will be from Phillip A.Denney,M.D.satisfies the requirements of California Health and Safety
resolution of an important issue affecting law enforcement throughout the state regarding Code Section 11362.5(d)(granting a defense to individuals possessing or cultivating
the court-ordered return of confiscated"medical"marijuana that remains illegal marijuana for medicinal purposes for their own individual use or as a primary caregiver
contraband under Federal law,and,by virtue of that characterization,is not subject to ors-behal-f ova-qualified-patientj:
return under State law. M. EXTRAORDINARY WRIT RELIEF IS PROPER AND WARRANTED
The undersigned have been given specific authority to make this Application on As a preliminary procedural matter,writ review is appropriate where,as here,there
behalf of Amici.
is"not a plain,speedy,and adequate remedy in the ordinary course of law." Cal.Civ.
II. STATEMENT OF FACTS. Proc.Code§1086. The Order is not appealable and Petitioner is without a Iegal remedy
The parties agree that Real Party in Interest Felix Kha("Kha")was stopped by in challenging the Court's order as a violation of State and Federal law. See People v.
members of the Garden Grove Police Department on June 10,2005 for failing to stop for Gershenhom.225 Cal.App.2d 122,125-6(1964)(holding"return of property is a
a red traffic signal before malting a right turn. See Appellant's Opening Brief("AOB")at separate procedure from the criminal trial and is not reviewable on an appeal from an
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1;Real Party in Interest's Informal Opposition to Petition for Writ of Mandate, ultimate judgment of conviction";therefore,"review by writ of mandate from this court is
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Prohibition,or Other Appropriate Relief("RPI Opp.")at 2. As relevant to this matter, available"),superseded on other grounds as stated in People v.Laiwa.34 Cal.3d 711
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Kha was cited for a violation of the California Vehicle Code relating to possession of (1983)(as to suppression of evidence motions);Chavez v.Superior Court,123 Cal.App.
marijuana in his vehicle in conjunction with that traffic stop. AOB at 1(citing Cal.Veh. 4th 104, 108(2004)("A writ of mandamus may issue to compel the trial court's
Code§23222(b));RPI Opp.at 2. This cited violation was dismissed against Kha,but performance of an act which the law specifically enjoins,and mandamus is the
the District Attorney opposed return of the confiscated marijuana. On September 1,2005, appropriate remedy for a defendant in a criminal proceeding to compel the return of
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the Trial Court ordered the return of the confiscated medical marijuana(the"Order")and personal property wrongfully withheld by the custodial officers.")(internal quotations and
the City of Garden Grove brought this appeal to challenge that order. AOB at 1-2;RPI citations omitted)(citing Cal.Civ.Proc.Code§1085(a);Minslcv v.City of Los An eles,.
Opp.at 3. For purposes of this brief,Amici assume that Kha's written recommendation + I I Cal.3d 113, 123(1974);Suki.Inc.v.Superior Court,60 Cal.App.3d 616,624(1976),
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Gershenhom v.Superior Court 227 Cal.App.2d 361,366(1964));People v.Tuttle,242 Cal.App.3d 1271, 1274(1999). This is certainly the case here,as there is no appellate
Cal.App.2d 883,885(1964)(order denying"return of property not admitted in evidence right relating to the Order,as discussed above,and the Order itself compels Petitioner to
but remaining in the custody of the police,"upheld because motion was"not directed to violate Federal law. See infra Part V. Moreover,Petitioner,its Police Department and
the-criminal- did-not-affect-any-substantial -personnel-including-ffie-PolieeDepar-tment-property-cler-k-or-his-or-her-superior-are-
right subject to that action,"was"entirely separate from the criminal proceeding"and subject to contempt proceedings for refusing to comply with the Order and for complying,
there was no right of criminal defendant to appeal order). See also.e.e..Cal.Penal Code instead,with State and Federal law,which require Petitioner to refuse to release the
§ 1538.5(k)(allowing writ of mandate or prohibition where motion to return property confiscated marijuana. For the same reasons,prompt resolution of the issue in this matter
taken pursuant to unreasonable search and seizure). is necessary and it is appropriate to grant writ review under such circumstances.
In fact,Petitioner was not a party to the criminal proceedings. It was the District
Anderson v.Superior Court.213 Cal.App.3d 1321,1328(1989)(claims are entitled to
Attorney's Office that opposed Kha's request for return of the confiscated marijuana. extraordinary relief even if appealable,when"the issues presented are of great public
(AOB,at 2;4,13("Petitioner did not appear or participate in the pre-trial conference.")); interest and must be resolved promptly")(internal quotations omitted). Real Party in
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5,14("Petitioner did not appear or participate in the continued pre-trial conference"))' Interest agrees. RPI Opp.at 18-19.
There is no apparent legal right that Petitioner had,as the custodian of the confiscated petitioner,its Police Department and Police Department personnel face contempt
marijuana,to participate in the criminal proceedings initiated by the District Attorney. In for failing and refusing to comply with the court-ordered release to Kha of personal
fact,it is not clear from the parties'briefs that Petitioner even had notice of the return of i property,namely confiscated marijuana,in violation of State and Federal law;'the legal
property proceedings such that it could have,if it even had the right to,participate in any
meaningful way in the proceedings relating specifically to Kha's request for the return of Kha's attorney,Joseph Elford,is a Staff Attorney with Americans for
Safe Access. He communicated byway of letter to the City Attorney of Garden
i his"property." I Grove,dated October 20,2005,wherein he stated that the organization was
"prepared to initiate contempt proceedings in the Superior Court if the City of
Garden Grove Police do not soon notify(him]of its intent to honor the attached
i A writ petitioner often must demonstrate that he or she will suffer"irreparable court order for the return of property."
See http://www.safeaccessnow.org/dowaloads[Kha_ASA-Letter.pdf. The threat
injury"if the writ is not granted. Omaha Indem.Co.v.Superior Court(Greinke),209 i to Petitioner could not be more real. See also Appendix in Support of Petition for
Writ of Mandate,Prohibition,or Other Appropriate Relief,filed on November 1,
2006(hereafter"Appendix"),at 010(Letter from Joseph D.Elford to John Shaw,
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issue to be decided in this matter could not be of greater public interest and urgency. The Compassionate Use Act'generally. Petitioner has a present duty and obligation to
issue presented in Petitioner's appeal is of great importance and broad application, forthwith comply with the Order and the Order is in direct conflict with both Federal and
warranting this Court's extraordinary relief,as the issue of federal supremacy and police State law. The Order requires Petitioner,through its Police Department and personnel,to
officer--s=dual-duty-to-honor-both-State-aud-Federal-law-aren't-stalce- -transmit-marij�'aa'a—a-contFol'led-substanee,in-violation-ef-Federa'1-'aw-to-a-eri'minai-
In addition,the harm is more than simply the threat of Petitioner's officers being defendant. Brown v.Superior Court,5 Cal.3d 509,514(1971)(finding that Secretary of
held in contempt of court or being prosecuted for a violation of the CSA;the reputation of State was beneficially interested sufficient to establish standing where he bore overall
Petitioner's officers,as well as the efficient functioning of Petitioner's Police Department responsibility for administering the disclosure laws which were being challenged on their
is at stake. See infra Part V.C. Finally,writ review in this matter will not cause any of constitutionality,in order to determine his public responsibilities);People ex ref.Dept of
the dilemmas in the effective administration of justice as identified by the Court of Conservation v.El Dorado County,36 Cal.4th 971,991-992(2005)(finding director of
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Appeal in Omaha Indem.Co.;namely,there will be no delay in a pending proceeding or California Department of Conservation was beneficially interested,as executive officer
any piecemeal litigation,since the criminal action has already been dismissed in the charged with powers and responsibilities relating to reclamation plans and financial
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Superior Court. Omaha Indem.Co.,109 Cal.App.3d at 1272-73. Therefore,it is both I assurances for surface mining operations,to challenge board's approval of allegedly
necessary and proper for this Court to consider this matter and to grant the writ requested illegal and deficient plans).
by Petitioner.
In fact,Petitioner is more directly interested in the validity of the Order than even
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IV. PETITIONER HAS STANDING IN THE WRIT PROCEEDING BROUGHT Kha himself is. Although Kha certainly has an interest in the subject of the Order,
TO CIiALLENGE THE ORDER'S VALIDITY. namely the disposition of his"property,"it is Petitioner that is subject to the Order itself.
Petitioner's challenge relates to the validity of a specific order directed at There is no other individual or entity more directly concerned with the validity of the
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I Petitioner,as the custodian of the confiscated marijuana. Therefore,Petitioner's interest
' For ease of reference,Amici refer to the California medical marijuana
is not hypothetical or conjectural and is not an abstract challenge to the validity of the statutes collectively as the"Compassionate Use Act,"even though the Act was
jreally the enactment of California Health and Safety Code Section 11362.5.
Subsequent sections of the Health and Safety Code were later added or modified
by the Legislature and are included within Amici's reference to the"Act." See
City Attorney,City of Garden Grove,dated October 20,2005) Cal.Health&Safety Code§§11362.7,et seq.
7 8
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Order than Petitioner. The Court's finding that Petitioner has standing in this matter does prohibited by Federal law for all purposes,except limited instances not applicable here.
not"stray too far towards the advisory opinion hazard...where standing may be See Part V.B.below.
conferred on a plaintiff whose only concern is concern itself." Stocks v.City f Irvine In addition,the Compassionate Use Act provides only a defense to the state
-1-14-Eal-4pp-3d 520,-330-(C-al-Et-App-I-91-4j-(inter-nal-quotations-omitted)--Because- =i,r�ai-provisions-relating-to-tlaepossession-orcultNation-of-medical-marijuana
Petitioner is directed by the Order to return the confiscated marijuana to Kha,which specifically under California Health and Safety Code Sections 11357 and 11358. Section
Order is illegal and in excess of the Trial Court's legitimate authority under both State 11356.2 does not make it generally lawful to possess medical marijuana and certainly
and Federal law,Petitioner's concern is not only"concern itself,"but is a particularized does not make it legal to possess marijuana pursuant to California Vehicle Code Section
interest sufficient to confer standing.
23222(b),which was the section Kha was charged for violating. Cal.Health&Safety
V. THE ORDER IS A VIOLATION OF STATE_ 11362.5(d).
AND FEDERAL LAW.
The Compassionate Use Act also specifically prohibits"criminal liability under
The Order requires the return of"property"which is contraband under Federal I
Section 11357, 11358, 11359, 11360, 11366, 11366.5,or 11570"relating to the
law,and State law only protects property which is not"prohibited by law"and which is transportation of medical marijuana for a patient's personal use. Cal Health&Safety
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"lawfully possessed." Since both Federal and State law do not protect the confiscated Code§113 62.76 5(emphasis added). However,Kha was not charged with only a
marijuana,Kha has no legally cognizable property interest in the contraband and it was an
violation of the Health and Safety Code,but also for a violation of the vehicle Code,
abuse of discretion for the Trial Court to order its return.
prohibiting the possession of marijuana in a vehicle. The Compassionate Use Act,
A. State Law Prohibits the Return of Medical Marijuana.
�) specifically permitting a defense to criminal actions brought only under the Health and
Generally,a court is required to order the release of exhibits from criminal
iSafety Code,has no bearing on criminal charges brought for violation of the Vehicle
proceedings when"the person from whom the exhibits were taken into custody...was in Code. People v Galambos, 104 Cal.App.4th 1147, 1167(2002)("Under the familiar
lawful possession of the exhibits." Cal.Penal Code§ 1417.5(emphasis added).
rule of construction,expressio unius est exclusio alterius,where exceptions to a general
Notwithstanding the Compassionate Use Act,however,the possession of marijuana is I rule are specified by statute,other exceptions are not to be implied or presumed,absent a
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discernible and contrary legislative intent.....We may not infer exceptions to our prior to court determining true character of equipment).'
criminal laws when legislation spells out the chosen exceptions with such precision and More importantly,destruction of the contraband is required by California Law.
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specificity.")(internal quotations and citations omitted). Therefore,Kba was not in California law provides for the disposition of exhibits(Cal.Penal Code§ 1417.5)and
-lawful-possessione€the-ruar- uana-that-has-been-ordered-released-to-hirtt whether-under provides-that-police-property-cierktmdy-returnproperry-to-an-owner-whtrerthereis-proof-
Federal or State law. of ownership(Cal.Penal Code§ 1413),but such provisions do"not apply to any property
Notably,the Order relies specifically upon Kha's decaration that the"Property is subject to forfeiture under any provision of law"and does "not apply to...any property
not considered contraband." Appendix at 004(Petition and Order for Return of of any kind or character whatsoever the possession of which is prohibited by law and...
Property). However,based upon both State and Federal law,as discussed herein,the that the defendant had upon his or her person at the time of the defendant's arrest." Cal.
confiscated marijuana is contraband,which cannot be returned to Kha. Penal Code§ 1413(b)(emphasis added). Similarly,the statutory duties of a police
Furthermore,it does not appear from the parties'briefs that the Trial Court made property clerk to return property to the owner do"not apply to any property subject to
any substantive evaluation or determination of where or how Kha came into possession of forfeiture under any provision of law." Cal,Penal Code§ 1417.6(a)(emphasis added).
the confiscated marijuana. If he did not cultivate the marijuana himself,or otherwise Statutory provisions require that"[a]II seizures of controlled substances...which
obtain it in a manner permitted by the Compassionate Use Act,then the marijuana was are in possession of any city,county,or state official...as the result of a case in which
also not lawfully possessed by Kha in the first instance.It was an abuse of discretion for
the Trial Court not to have fully evaluated whether the marijuana was lawfully obtained
' If the marijuana in Kha's possession was"manufactured,distributed,
dispensed,or acquired"in violation of the Health&Safety Code relating to
by Kha such that his possession of it was even within the protections of the ('i controlled substances,then it is subject to forfeiture pursuant to Health and Safety
i Code Section 11470. See also Cal:Health&Safety Code§11475("Controlled
Compassionate Use Act. See,e.g. People v Superior Court(Shayanl,21 Cal.App.4th I
substances Listed in Schedule I that are possessed,transferred,sold,or offered for
sale in violation of this division are contraband and shall be seized and summarily
621,629(1993)(holding writ of mandamus proper where superior court erred in ordering forfeited to the state."). It appears that there was evidence that Kha was not
lawfully in possession of the confiscated marijuana. Appendix,at 006(Kha"was
unconditional return of stereo parts with serial numbers removed in violation of State law I not able to produce any paperwork showing where had had received the
marijuana";officer inquired of Kha"where he purchased the marijuana and he
II told me in a lab in Long Beach").
i11 12
no trial was had or which has been disposed of by way of dismissal or otherwise than by
possession"shall not apply"to a patient or caregiver). See also,Chavez v.Superior
way of conviction,shall be destroyed by order of the court,unless the court finds that the Court, 123 Cal.App.4th 104, 110(2004)("Defining the boundaries of the
controlled substances....were lawfully possessed by the defendant." Cal.Health&
Compassionate Use Act,the Supreme Court has held section 11362.5 does not afford a
Safety-C-ode-§-1-1-4�73-5-(-a){emphasis added)—Eali€ernia-Health-&-Safety-GodeSeetion - atient absolute-tmi om-amsfandproseeution,-but-orily-limited-imniunity-
11475 similarly provides for the forfeiture of seized schedule I drugs:"Controlled allowing the patient or primary caregiver to raise the medical use defense to set aside an
substances listed in Schedule I that are possessed,transferred,sold,or offered for sale in information,indictment,or as a defense at trial.")(emphasis added)(citing People v.
violation of this division are contraband and shall be seized and summarily forfeited to Mower 28 CalAth 457,470(2002));People_ .Fisher,96 Cal.App.4th 1147,1152
the state."
(2002)("[T]he exception constitutes an affirmative defense to be proven by the defendant
Whether the confiscated marijuana was lawfully possessed by Kha under State law
at trial.This conclusion comports with the rebuttal argument against Proposition 215,the
has no bearing on whether it was lawfully possessed under Federal law. Each of the
initiative measure enacting section 11362.5,contained in the ballot pamphlet,which
above provisions,by reference to"law"generally,necessarily incorporate Federal law,
reads:`Police officers can still arrest anyone who grows too much,or tries to sell it....
which prohibits virtually all possession,for any purpose,of marijuana. Since Kha's
[P]...Police officers can still arrest anyone for marijuana offenses. Proposition 215
i
Possession of the confiscated marijuana was a violation of Federal law,see below,it was simply gives those arrested a defense in court,if they can prove they used marijuana with
not lawfully possessed and is to be destroyed by order of the court,as contraband, I a doctor's approval.'(Ballot Pamp.,Gen.Elec.(Nov.5,1996)rebuttal to argument
pursuant to State law.
against Prop.215,p.61.)")(omissions and addition in original)(emphasis added).
In fact,Defendant's possession of marijuana was not lawful even under California Especially where,as here,the criminal defendant was charged with a violation of the
law. The Compassionate Use Act does not exempt medical marijuana from the j
Vehicle Code(for which the Compassionate Use Act defense does not apply),the
prohibition against the possession of marijuana;it does not make Defendant's possession unlawful possession of marijuana requires its forfeiture and destruction under State law.
of the substance"lawful." Instead,the Act provides a defense for anyone prosecuted for
B. Federal Law Prohibits the Return of Medical Marijuana.
possessing medical marijuana. Cal.Health&Safety Code§11362.5(penalty for
Federal law provides both that the possession of marijuana is prohibited,and also
13
14
that such material is subject to forfeiture. 21 U.S.C.§812,schedule 1(c)(10)(identifying
entirely the possession or use of substances listed in Schedule I,except as apart of a
marijuana as a schedule I drug).' See also 21 U.S.C.§881(a)("The following shall be strictly controlled research project." Raich 125 S.Ct.at 2210(2005)(emphasis added).
subject to forfeiture to the United States and no property right shall exist in them:(1)Al]
Furthermore,it is"unlawful for any person knowingly or intentionally to possess a
-controiledsubstanceswvhich have-been-mattufactured—distributed;dispensed,—orLacquired
control]ed-sabstancezurless-such-substance-was-obtained-direcH};-orpursuantto-a-valid-
in violation of this subchapter....(8)All controlled substances which have been
prescription or order,from a practitioner." ZI U.S.C.§844(a)(emphasis added). The
possessed in violation of this subchapter.")(emphasis added);21 U.S.C.§881(f)("(1) term"practitioner"is defined under Federal law as"a physician,dentist,veterinarian,
All controlled substances in schedule I or II that are possessed,transferred,sold,or scientific investigator,pharmacy,hospital,or other person licensed,registered,or
offered for sale in violation of the provisions of this subchapter;...shall be deemed otherwise permitted,by the United States or the jurisdiction in which he practices or does
contraband and seized and summarily forfeited to the United States.")(emphasis added). research,to distribute,dispense,conduct research with respect to,administer,or use in
The United States Supreme Court has indicated that,"[b]y classifying marijuana as teaching or chemical analysis,a controlled substance in the course of professional
a Schedule I drug,as opposed to listing it on a lesser schedule,the manufacture,
i practice or research." 21 U.S.C.§802(21). Kha did not obtain marijuana from anyone
distribution,or possession of marijuana became a criminal offense,with the sole who would fall within the definition of a"practitioner"under Federal Iaw.
exception being use of the drug as part of a Food and Drug Administration pre-approved
j Although Kha presented a successful defense as to his possession of marijuana
`I
research study." Gonzales v.Raich 125 S.Ct.2195,2204(2005)(emphasis added) under the Compassionate Use Act(such that the charges against him were dismissed by
I
(citing 21 U.S.C.§§823(f),841(a)(1),844(a);United States v Oakland Cannabis BUVera' the District Attorney),such defense does not translate into lmvfulpossession of marijuana
Cooperative,532 U.S.483,490(2001)). The Raich Court further specifically found that
_ pursuant to either State law,as set forth above,or as to Federal law. In fact,the
! "[t]he regulatory scheme[of the Controlled Substances Act]is designed...to prohibit Compassionate Use Act makes no provision or requirement for the return of confiscated
I
marijuana. See Chavez v.Superior Court,123 Cal.App.4th 104, 108(2004)(denying
" Schedule I drugs are the most'regulated and have the following
characteristics: (q)The drug or other substance has a high potential for abuse. I writ of mandate and upholding trial court's refusal to return confiscated marijuana upon
(B)The drug or other substance has no currently accepted medical use in
treatment in the United States.(C)There is a lack of accepted safety for use of the dismissal of criminal complaint,based upon Health&Safety Code provisions,the fact
drug or other substance under medical supervision. 21 U.S.C.§812(b)(1).
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that destruction did not violate the Compassionate Use Act and that the court was without Kha relies upon the opinion in People v.Tilehkooh 113 Cal.App.4th 1433
authority to return contraband). (2003),to claim that his possession of marijuana was lawful and that the state court may
The Court of Appeal in Chavez contrasted the California Compassionate Use Act not enforce Federal law. Real Party in Interest misses the mark. This case is not about
-wittrprovisions-of Oregon'-s-Medical-Marijuana-Aet-which,-the-Gourt noted,-spee{f cally- -the-People-trying-ta-enfDreeFederal-Law;but-Petitioneratttmptingto-be-free-of-an-order
provides that seized medical marijuana not be destroyed or forfeited and is to be that violates State and Federal law and compels Petitioner to violate Federal law.
immediately returned. Id.at 111 n.3(citing ORS§475.323(2);State v.Kama 39 P.3d Tilehkooh involved the People's attempt to revoke probation based on the
866(2002)). The Chavez Court found"noticeably absent from the statute[the defendant's possession of medical marijuana. Here there is no probation violation and
Compassionate Use Act]is a provision which requires,or authorizes,the court to return Petitioner is not attempting to compel the criminal defendant to conform his conduct to
confiscated marijuana." Id.at 111(emphasis added).5 Federal law. Instead,the provisions of Federal and State law dictate the character of the
i
"property"ordered to be returned to Kha. That"property"was not lawfully possessed
' It matters not that the amount of marijuana at issue in Chavez was under either Federal or State law(and State law,by its terms,incorporates Federal law).
an amount exceeding the permissible limits of personal medical marijuana
prescribed by State law. The fact that the Court's analysis focused on the facts before it has no bearing on the different facts presented by the instant i Petitioner is faced with the untenable position of being required to return"property"
appeal. Ginns v.Savage,61 Cal.2d 520,524(1964)("Language used in
any opinion is of course to be understood in the light of the facts and the which is contraband under Federal law,was not lawfully possessed under Federal law,is
issue then before the court,and an opinion is not authority for a proposition
prohibited from being y q
not therein considered.")(emphasis added). Kha claims that the Chavez P g returned b State law and is required to be forfeited and destroyed
Court did not did not[sic]foreclose the possibility of marijuana being
li returned to a qualified patient in all cases;indeed,had this been the holding by both Federal and State law. This is untenable both because police officers are
of Chavez,it would have been unnecessary for this Court to scrutinize the generally held g y p
quantity of marijuana possessed by Chavez so carefully." RPI Opp.at 7. g y d to a high ethical standard and because the often cooperate with and assist
Kha suggests that Chavez should have been decided more broadly,but a in federal drug enforcement. It is quite a double standard for Petitioner's officers to be
I
decision beyond the facts was clearly not necessary;there was no need in
Chavez to consider whether all medical marijuana is unlawfully possessed,
since there was no question in Chavez that his particular possession was
outside the protection of the Compassionate Use Act because of the large
quantity Chavez had. If the opinion in Chavez had gone beyond its facts it to be taken in connection with the case in which those expressions are used.
could have been disregarded on that basis. See Achen v.Pepsi-Cola
If they go beyond the case,they may be respected,but ought not to control
Bottling Co.,105 Cal.App.2d 113,125(Cal.Ct.App. 1951)("`It is a the judgment in a subsequent suit when the very point is presented for
•I maxim not to be disregarded,that general expressions,in every opinion,are I decision."').
17 ' 18
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enforcing federal drug laws on one hand and to be directly violating them on the other. controlled substance in schedule I or II to another except in pursuance of a written order
In addition,if this Court were to hold that the Order was valid,then a whole host of the person to whom such substance is distributed,made on a form to be issued by the
of paradoxes would be created. For instance,could Petitioner be required to compensate Attorney General in blank in accordance with subsection(d)and regulation's prescribed
Kha forany-damage-orloss-to-hispropert), is-Kha-entitled-to-dueproeess-as-to- -by-him-pursuant-to-this-seetien)—T-heter-m=distribute--means-te-deliver(other-than-by
"property"for which there is no legally cognizable property interest under Federal law? administering or dispensing)a controlled substance or a listed chemical.The term
The dilemma is clear,as is the necessary resolution,which rectifies the direct conflict `distributor'means a person who so delivers a controlled substance or a listed chemical."
created by California's adoption ofinedical marijuana statutes that appear to allow the 21 U.S.C.§802(11).
use,possession,cultivation,transportation,etc.of marijuana,in the face of Federal Law The Order,therefore,is a violation of Federal law both because it requires the
banning virtually all use,possession,transportation,etc.of marijuana. i return of a controlled substance not"lawfully possessed"under Federal law or State law
C. The Order Unlawfully Requires the Distribution of a Controlled (which incorporates federal law),but also because it directly requires Petitioner to
Substance By Petitioner. distribute a controlled substance in violation of Federal law. As such,the Order cannot
i
Most critically and notwithstanding the above,the Order requires that Petitioner 1 stand. Gonzales v.Raich. 125 S.Ct.2195,2212(2005)("The Supremacy Clause
I
and its Police Department,which has current custody of the property,release the unambiguously provides that if there is any conflict between federal and state law,federal
confiscated marijuana to Kha. Regardless of whether Defendant's possession of law shall prevail.")(emphasis added).
marijuana is protected by the Compassionate Use Act and,assuming arguendo that he is Kha claims that the"immunity"provided within the Controlled Substances Act
entitled to continued possession ofthe confiscated controlled substance,the Order
nullifies this claim. He asserts that there can be no"civil or criminal liability under the
affirmatively and impermissibly requires the Garden Grove Police Department to federal Controlled Substances Act(`CSA')for the implementation of state law relating to
"distribute"marijuana in direct violation of Federal law. 21 U.S.C.§841(a)(I) controlled substances." RPI Opp.at 10. Kha's argument fails for several important
(unlawful for any person knowingly or intentionally to distribute a controlled substance). reasons.
See also,21 U.S.C.§828(a)("It shall be unlawful for any person to distribute a
j First,the immunity is not so broad as Kha claims;his claims are belied by his
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quotation of the immunity provision itself. The"immunity"provided to local officials is is,compelling compliance with,a law related to controlled substances which is
to those"'lawfully engaged in the enforcement of any law or municipal ordinance relating consistent--or at least not inconsistent--with the Controlled Substances Act.Section
to controlled substances."' RPI Opp.at 10(quoting 21 U.S.C. §885(d)). Petitioner's 885(d)cannot reasonably be read to cover acting pursuant to a law which itself is in
rein m—of e-cbnfiscated-marijnana-does-not-canstituteenforeement"-o€-a4mN-relating_to- conflict with the Act." Id(emphasis added)(noting that Congress determined that there
controlled substances. See United States v.Rosenthal 454 F.3d 943,948(9th Cir.2006) are no medical benefits worthy of an exception prohibiting any possession,cultivation,
("`[E]nforcement'means`to compel compliance with the law...At best,Rosenthal was distribution,transportation,etc.of marijuana,except as part of government-approved
implementing or facilitating the purpose of the statute;he was not compelling anyone to research).
do or not to do anything.").e As the District Court noted in Rosenthal,and the Court of This immunity was designed to apply to direct enforcement actions and is not
Appeal affirmed,for intended to apply to law enforcement providing contraband to criminal defendants on a
an official to be`lawfully engaged'in the enforcement of a law relating to regular basis and not part of an investigative effort to curtail drug trafficking. See,e.g.,
controlled substances,and therefore entitled to immunity,the law which the
municipal official is`enforcing'must itself be consistent with federal law. United States v.Mustakeem.759 F.Supp. 1172,1176(D.Pa. 1991)("Undercover
i Chapter 8.42,to the extent it provides for the cultivation and distribution of
medical marijuana,is not lawful under federal or state law. I operations shall not include the furnishing of a controlled substance except in
i
j United States v.Rosenthal,266 F.Supp.2d 1068, 1078(D.Cal.2003),aff'd. in pertinent extraordinary cases after consultation with the appropriate United States Attorney").
part by United States v.Rosenthal,454 F.3d 943,948(9th Cir.2006). j Notably,the medical marijuana laws in the State of Oregon in State of Oregon Y.
I
As the District Court in Rosenthal specifically concluded,"`[1]awfully engaged'in Kama.39 P.3d 866(2002),on which Kha places reliance for his immunity claim,
I
`enforcing a law related to controlled substances'must mean engaged in enforcing,that I specifically contains a provision which mandates the return of confiscated medical
marijuana under certain circumstances,so that the Court could conclude that law
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j e The Order cannot be said to be"enforcement"of California controlled enforcement personnel were enforcing State law relating to controlled substances. Id.at
j substances laws either,since the State's controlled substances statutes do not
require the return of confiscated"medical"marijuana. See United States v. i 867-868. In addition,the Kama Court did not decide whether the Oregon law mandating
Rosenthal 454 F.3d 943,948(9th Cir.2006)(distinguishing State of Oregon v
Kama,39 P3d 866(2002),based on fact that"state law mandated the return of the return of confiscated marijuana was preempted by Federal law. Id.at 868. See infra
marijuana to the individual from whom the marijuana had been seized")(emphasis !
added).
21 22
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Part VI. In addition and as discussed previously,police officers are held to a high moral
Second,and equally important,the applicability of the immunity provision is not standard and very often cooperate extensively with federal drug enforcement. See,e.8.,
settled in this context. Kha cannot,nor can any other party or any amicus curiae,state People v.Nord.377 F.Supp.2d 945(2005)(local law enforcement officers acting on
with any certainty,sufficient to alleviate Petitioner's legitimate concerns,that Petitioner's task force with federal Drug Enforcement Agency personnel). These roles are
officials and/or officers would be entitled to immunity under Section 885 as to the return undermined by the return of confiscated marijuana to a criminal defendant by Petitioner's
of the confiscated marijuana to Kha. Police Department. See.e.g.,Bailey v.City of National City,226 Cal.App.3d 1319,
Third,"immunity"is not a sufficient remedy to the ordered violation of Federal 1328(1991)("the unique position occupied by police officers subjects them to an even
law by Petitioner. The fact that Petitioner might be immune from prosecution under the higher standard of conduct than other employees");Nicolini v.County of Tuolumne 190
Controlled Substances Act for its compliance with the Order is small consolation when Cal.App.3d 619,630(Cal.Ct.App.1987)(upholding termination of officer for"failure
i
Petitioner's officers,despite such"immunity"possibly applying after-the-fact,are still of good behavior either during or outside of duty hours which is of such nature that it
compelled to violate Federal law and may still be subject to suit,at the very least,for causes discredit to the county"). Actions ofpolice officers that are a violation of Federal
i
violating the CSA. In contrast to other immunities,Section 885 is not an immunity from law on their face compromise the effectiveness and credibility of the officers and their
suit,but is only an immunity from liability. Cf Mitchell v.Forsyth,472 U.S.511,526 Department,since they are,generally,enforcers and administrators ofthe laws of the
(1985).' land.
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The Order equally undermines Departmental authority and morale,regardless of
I I
Immunity from suit prevents"`consequences'[to public employees, t • any immunity which may later prevent liability for those actions. Petitioner is faced with
which]..are not limited to liability for money damages;they also include'the
general costs of subjecting officials to the risks of trial--distraction of officials I the dilemma of informing its officers which laws are to be followed and which are to be
from their governmental duties,inhibition of discretionary action,and deterrence
of able people from public service...[;]even such pretrial matters as discovery ignored with impunity. The Order requires the latter as to the federal government's
are to be avoided if possible,•as'inquiries of this kind can be peculiarly disruptive
of effective government" Mitchell v.Forsyth,472 U.S.511,526(1985) characterization of marijuana as a controlled substance,without medical benefits,and
(discussing nature of qualified immunity from suit). An immunity from liability
clearly does not prevent these"consequences"and they would certainly contribute
i to the harm suffered by Petitioner as to the efficient functioning of its Police which is prohibited for any purpose.
Department as a result of being compelled to comply with the Order.
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Real Party in Interest claims that it is not the business of this Court to enforce or VI. FEDERAL LAW PREEMPTS TAE ORDER AND
determine Federal law. State courts,however,do have authority to"render binding THE COMPASSIONATE USE ACT.
judicial decisions that rest on their own interpretations of federal law." ASARCO,Inc.v. The United States Supreme Court has found that Congress was well within its
Kadish,490 U.S.605,617(1989). In addition,it most certainly is the business of this Commerce Clause power in regulating marijuana as a controlled substance under the
Court to ensure that the orders of the Orange County Superior Court for the State of Controlled Substances Act. Gonzales v.Raich 125 S.Ct.2195,2212(2005). The
California do not violate the United States Constitution or federal statutes. Specifically, United States Supreme Court found that marijuana--any marijuana in any amount and
Article VI,clause two,provides,in pertinent part,that"the Judges in every State shall be for any purpose,is contraband under Federal law. Gonzales v.Rai ch,125 S.Ct.2195,
bound[by the Constitution and the Laws of the United States]." The Judges of the 2211(2005)("The CSA[Controlled Substances Act]designates marijuana as contraband
Orange County Superior Court,whether bound to enforce Federal law,are certainly for any purpose.")(emphasis in original).Notwithstanding the fact that the Controlled
required not to issue orders which violate Federal law. See Printz v.United States 117 S. Substances Act permits States to also regulate controlled substances,the CSA specifically
Ct.2365,2374(1997)("[T]he duty owed to the National Government,on the part of all limits that permission to instances not involving"a positive conflict"between a State's
state officials,[is]to enact,enforce,and interpret State law in such fashion as not to
regulations and the CSA"so that the two cannot consistently stand together." The State
obstruct the operation of Federal law,and the attendant reality that all state actions cannot satisfy this explicit statutory provision where an order of the Superior Court
i
constituting such obstruction,even legislative acts,are ipso facto invalid.")(emphasis i requires that a Police Department return a substance which is illegal contraband under
added);Miller v.Municipal Court of Los Angeles,22 Cal.2d 818,842(1943)("the state I Federal law to a criminal defendant. The fact that the State has determined that
courts would have concurrent jurisdiction in all cases wising under the laws of the union, individuals will not be prosecuted under State law for the possession or cultivation of a
where it was not expressly prohibited[;]...the States are the instruments upon which the controlled substance has no bearing on whether a law enforcement agency can be ordered
Union must frequently depend for the force and execution of its powers")(internal to release that contraband to a criminal defendant. Gonzales v.Raich.125 S.Ct.2195,
quotations and citations omitted)(quoting the framers as to proposed federal
I � 2213(2005)("state action cannot circumscribe Congress'plenary commerce power").
Constitution). Being both a violation of Federal and State law,the Order cannot stand. i Kha ignores the plain language of the United States Supreme Court opinion in
25
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Raich. The Raich Court found as follows: "the mere fact that marijuana--like virtually
prescription under the CSA. "While,under Gonzales v.Oregon the United States
every other controlled substance regulated by the CSA--is used for medicinal purposes Supreme Court may have found that States retained the ability to control medical uses for
cannot possibly serve to distinguish it from the core activities regulated by the CSA"
Schedule 17 drugs that could legitimately be prescribed by doctors registered with the
Gonzales v Raich, 125 S.Ct.2195,2212(2005)(emphasis added). federal government for purposes of dispensing drugs under the CSA,the Supreme Court
The Order and the CUA directly conflict with the CSA.Therefore,the former are did not find that the same intent existed with respect to Schedule I drugs that cannot be
preempted by the latter,by necessity. This is completely consistent with the purposes of prescribed by physicians at all. As to Schedule I drugs,Congress clearly had the intent to
the CSA in"controlling the legitimate and illegitimate traffic in controlled substances. occupy the entire field,whether assertedly medical or not. Therefore,the State's attempt
Gonzales v.Oregon,126 S.Ct.904,911(2006). to allow"medicinal"use of a Schedule I controlled substance under the CSA is fully
As to the CUA,which purports to generally permit the use,possession,cultivation preempted by the CSA,
and transportation of"medical"marijuana,the placement of this substance in Schedule I
VII. CONCLUSION.
of the CSA dictates that there is no medicinal use of marijuana. Gonzales v.Oregon.126
In summary,Amici urge this Court to find the Order invalid as a violation of
S.Ct.904,922(2006)("Congress'express determination that marijuana had no accepted i
Federal and State law,as well as finding that the Compassionate Use Act is preempted by
medical use foreclosed any argument about statutory coverage of drugs available by a the Controlled Substances Act and finding in favor of Petitioner on the following
doctor's prescription.")(citing United States v Oakland Cannabis Buyers'Cooperative, underly
ing issues. First,Petitioner's writ of mandate is the proper procedural mechanism
532 U.S.483(2001)). for challenging the Order,since there is no adequate,speedy remedy available to
In contrast to the facts here,the Court in Gonzales v.Oregon found that Oregon's Petitioner;there is no right of appeal as to the Order;and Petitioner,although beneficially
Death with Dignity Act did not conflict with the CSA,despite allowing the prescribing of I interested in the disposition of the confiscated marijuana,was not a party to the
lethal doses of controlled substances. However,the controlled substances at issue in i proceedings resulting in the Order.
I
Gonzales v.Oregon were Schedule 11 drugs,which were substances available by + Second,Petitioner has standing to challenge the Order's validity. Since Petitioner
prescription. Id.at 912. In contrast,marijuana,as a Schedule I drug,is not available by is subject to the Order,and is directed by the Order to violate State and Federal law
i
27
28
relating to the return of the confiscated marijuana to Kha,Petitioner's interest in the the Vehicle Code relating to the possession of marijuana in a vehicle.
outcome ofthis matter is not conjectural or remote. Finally,the Controlled Substances Act clearly preempts the use,possession,
Third,the Order violates both Federal and State law. There is no dispute that transportation,etc.of marijuana,whether supposedly"medicinal"under State law or not.
Federal law prohibits the use,possession,cultivation,transportation,etc.of marijuana, Even if this Court were to find that the Controlled Substances Act did not generally
except in instances not applicable under the facts presented in this matter. Federal law prohibit the Compassionate Use Act,the conclusion that the Order directly conflicts with
provides that there is no property interest in controlled substances. In fact,any Schedule I the Controlled Substances Act,by requiring the distribution of the cofiscated marijuana
substances(of which marijuana is a part),not possessed in conjunction with an authorized by Petitioner,would still be inescapable.
research project,are simply deemed contraband for any purpose. In its essence,this is a case about a law enforcement agency being required to
In addition,the Order actually requires Petitioner to violate Federal law,since violate Federal law by returning confiscated marijuana,which is illegal contraband,to a
Petitioner is required to"distribute"a controlled substance. Any"immunity"which may criminal defendant. This is not a matter of state officers being required to enforce Federal
apply to Petitioner and its officers and employees does not negate the existence of this law. Instead,it is a straightforward question of whether the Order can violate and
violation,since the immunity provided by the Controlled Substances Act is inadequate, contradict Federal law and whether the Order can directly require Petitioner to violate
uncertain,and likely inapplicable to actions which are based upon State law inconsistent Federal law by ordering Petitioner to distribute a controlled substance in violation of the
i
with Federal law. Controlled Substances Act.
Similarly,State law prohibits the return of confiscated controlled substances that j In determining that the Order is invalid,this Court will be upholding the integrity
are not"lawfully possessed." Since State law generically incorporates Federal law,State of law enforcement and the Courts of the State of California.Petitioner will no longer be
law also specifically requires the forfeiture and destruction of the confiscated marijuana, subject to an Order that is a direct violation of both Federal and State law,and the Order
I ;
In fact,the Compassionate Use Act does not purport to make it lawful to possess or will no longer be in violation of the Constitution,which requires that all judges are bound
transport medical marijuana,but only grants a defense to prosecution for the violation of by Federal law. In addition,the unreconciled conflict between the Controlled Substances
certain sections of the Health and Safety Code. Notably,Kha was cited for a violation of i Act and the Compassionate Use Act,as to the use,possession,transportation,etc.of
29 30
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is
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marijuana can be resolved by this Court's definitive determination that the latter is CERTIFICATE OF COMPLIANCE
preempted by the former,since the Compassionate Use Act interferes with Congress' 1, MARTIN J.MAYER,certify that the attached application and proposed brief
explicit and all-encompassing regulation of marijuana as a Schedule I controlled consist of 7,961 words,including footnotes. I have relied on the word count of the
substance for any purpose whatsoever. computer program used to prepare the brief.
For all of the foregoing reasons,this Court is respectfully urged to grant Dated: December 18,2006 JONES&MAYER
Petitioner's appeal,finding that its petition for writ of mandate was proper and should
have been granted. By. Qi
M ' J.Mayer
Dated: December 18,2006 Respectfully submitted, Attorney ici
DONMay�r
ByM DLC
Krista MacNevin Jee,
Attorneys for Amici Curiae,
California State Sheriffs'Association
California Police Chiefs'Association
California PeaceOffrcers'Association
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STATE OF CALIFORNIA ) PROOF OF SERVICE
COUNTY OF ORANGE ) ss.
x (State)I declare under penalty of perjury under the laws of the State of California
I am employed in the County of Orange:State of California. I am over the age of that the foregoing is true and correct.
18 and not a party to the within action.My business address is 3777 North Harbor
Boulevard,Fullerton,California. On December 18,2006, I served the foregoing
document described as: (Federal)I declare that I am employed in the office of a member of the bar of this
court,at whose direction the service was made.
AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER
on the parties or attorneys for parties in this action who are identified on the attached Executed on December 18,2006 at Fullerton,California 92835.
service list,using the following means of service.(If more than one means of service is
checked,the means of service used for each party is indicated on the attached service
list).
BY PERSONAL SERVICE.I placed the original or_a true copy of the
foregoing document in sealed envelopes individually addressed to each of the
parties on the attached service list,and caused such envelope to be delivered by
Debbie Menicucci
hand to the offices of each addressee.
BY FACSIMILE TRANSMISSION.I caused_the original or_a true copy of
the foregoing document to be transmitted to each of the parties on the attached
service list at the facsimile machine telephone number as last given by that person
on any document which he or she has filed in this action and served upon this
office.
! BY MAIL.I placed_the original or_a true copy of the foregoing document in a
sealed envelope individually addressed to each of the parties on the attached i
service list,and caused each such envelope to be deposited in the mail at 300 South
Grand.Avenue,Eighth Floor,Los Angeles,California 90071-3119.Each envelope
was mailed with postage thereon fully prepaid.I am readily familiar with this
firm's practice of collection and processing of correspondence for mailing.Under
that practice,mail is deposited with the United States Postal Service the same day
that is it collected in the ordinary course of business.
BY EXPRESS MAIL.I placed_the original or_a true copy of the foregoing
document in a sealed envelope individually addressed to each of the parties on the
attached service list,and caused such envelope or package to be deposited in the. ,
x BY OVERNIGHT EXPRESS.I placed_the original or x a true copy of the I
foregoing documents in a sealed envelope or package designated by Overnight
! Express with delivery fees paid or provided for,individually addressed to each of
! the parties on the attached service list,and caused such envelope or package to be
delivered to an authorized courier or driver authorized by Overnight Express to
receive documents.
I
I
I I
SERVICE LIST
TERI L.BLOCI{
Deputy Attorney General
1300 I Street,Suite 125
Sacramento,CA 94244-2550
(One copy)
John R.Shaw,Esq.and
Magdalena Lona-Wiant
Woodruff,Spradlin&Smart
701 South Parker Street,Suite 8000
Orange,CA 92868-4760
(One copy)
Orange County Office of the District Attorney
West Justice Center
8141-13"Street
Westminster,CA 92863
(One copy)
Joseph D.Elford,Esq.
Americans for Safe Access
1322 Webster Street,Suite 402
Oakland,CA 94612
(One copy)
Supreme Court of Califomia Orange County Superior Court
Los Angeles Office Hon.Linda S.Marks-Dept.W-3
Ronald Reagan Building West Justice Center
300 S.Spring Street,2nd Floor 8141-1311 Street
Los Angeles,CA 90013-1233 Westminster,CA 92863
(Four copies) Case No.GG98995
(One Copy)
RCA ROUTING SHEET
INITIATING DEPARTMENT: City Attorney
SUBJECT: Request for Amicus Support in Medical Marijuana Case,
City of Garden Grove v. Orange County Superior Court,
Real Party in Interest Felix Kha, sCase No. G036250
COUNCIL MEETING DATE: May 7, 2007
RCA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Attached ❑
Not Ap licable E
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable'
Tract Map, Location Map and/or other Exhibits Attached ❑
Not Ap licable
Contract/Agreement (w/exhibits if applicable) Attached ❑
(Signed in full by the City Attorney) Not Applicable E
Subleases, Third Party Agreements, etc. Attached ❑
(Approved as to form by City Attorney) Not Applicable
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not Applicable
Fiscal Impact Statement (Unbudgeted, over$5,000) Attached ❑
Not Applicable E
Bonds (If applicable) Attached ❑
Not Applicable E
Staff Report (If applicable) Attached
t Applicable
Commission, Board or Committee Report (If applicable) Attached
Not Applicable
Findings/Conditions for Approval and/or Denial Attached ❑
Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS'
REVIEWED RETURNED FOR ARDED
Administrative Staff
Deputy City Administrator Initial
City Administrator(Initial)
City Clerk
EXPLANATION FOR RETURN OF ITEM:
Only)(Below Space For City Clerk's Use
RCA Author: 9724 tj