Measure B Plant Limits Can’t Be Enforced

August 20, 2008

California — Less than three months after it was approved by voters, one section of the contentious medical marijuana initiative Measure B has been stayed by the court.

Mendocino County Superior Court Judge John Behnke ruled last week that the medical marijuana plant limits set forth in Measure B cannot be enforced because they are unconstitutional in light of the ruling by the California Appellate Court in People v. Kelly.

“If the Kelly decision stands, Measure B’s specific limits on the amount of marijuana a qualified patient or his primary care giver may possess constitute an amendment of the CUA (compassionate use act), without consent of the statewide electorate and the specific limits section of the new ordinance is therefore unconstitutional,” Behnke wrote in his ruling.

Measure B, which was approved by voters in June, set medical marijuana possession limits in Mendocino County at six mature or 12 immature plants and eight ounces of marijuana, the same as the state limits.

Those limits were enacted by the California Legislature in Senate Bill 420, which amended the voter-approved CUA which legalized the possession of marijuana for medical purposes, but contained no possession limits.

The limits set forth in SB 420 were found to be unconstitutional by the California Appellate Court in May of this year. The appellate court ruled that the Legislature cannot amend an initiative like the CUA unless the initiative gives the Legislature the authority to do so. According to the Kelly ruling, the CUA does not give that authority.

“The limits section of Measure B seeks to modify the CUA in the same terms that Kelly found to be an unconstitutional amendment of the CUA,” Behnke wrote in his ruling.

Behnke found that if the state Legislature cannot amend a statewide initiative with a proposition, then Mendocino County cannot amend the initiative with a local ordinance or initiative.

The effect of Measure B as it relates to plant counts will remain stayed unless and until the Kelly decision is overturned, Behnke said in his ruling. The California Supreme Court announced Wednesday that it would be reviewing the decision but did not set a hearing date.

In addition to setting medical marijuana limits, Measure B also repealed Measure G, which was approved by Mendocino County voters in 2000 and instructed law enforcement to make the prosecution of anyone growing 25 or fewer marijuana plants the lowest possible law enforcement priority.

Behnke said that portion of Measure B would stand.

Complete Title: Measure B Plant Limits Can’t Be Enforced, Judge Rules

Source: Ukiah Daily Journal (CA)


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