IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
Plaintiff and Respondent, )
v. ) S164830
PATRICK K. KELLY, )
) Ct.App. 2/3
Defendant and Appellant. ) No. B195624
In re ) Los Angeles County
) Super. Ct. No. VA092724
PATRICK K. KELLY )
on Habeas Corpus. )
Health and Safety Code section 11362.77, which is part of the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), prescribes a specific amount of marijuana that a “qualified patient” may possess or cultivate. We granted review to determine whether this aspect of section 11362.77 is invalid under California Constitution, article II, section 10, subdivision (c), insofar as it amends, without approval of the electorate, the Compassionate Use Act (CUA) (§ 11362.5), an initiative measure adopted by the voters as Proposition 215 in 1996. We conclude, consistently with the decision of the Court of Appeal below (and with the position of both parties in the present litigation), that insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under article II, section 10, subdivision (c). We also conclude, consistently with the views of both parties in the present litigation, that the Court of Appeal erred in concluding that section 11362.77 must be severed from the MMP and hence voided.
In 1996, the California electorate approved Proposition 215 and adopted the CUA, which provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d).) By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. (See generally People v. Mower (2002) 28 Cal.4th 457, 474 (Mower); People v. Wright (2006) 40 Cal.4th 81, 98 (Wright).) The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee’s having a physician’s recommendation or approval. (Mower, supra, 28 Cal.4th 456, 467-469.)
Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient’s “personal medical purposes.” (§ 11362.5, subd. (d), italics added.) An early decision construed this provision of the CUA as establishing “that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs.” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549, italics added (Trippet).)
Despite — or, perhaps, because of — this judicial construction of the CUA, questions persisted for both qualified medical marijuana patients and for law enforcement officers relating to enforcement of and arrest for possession, cultivation, and other related marijuana offenses. In 2003, the Legislature found that “reports from across the state have revealed problems and uncertainties in the [CUA] that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act.” (Stats. 2003, ch. 875, § 1, subd. (a)(2).) In response, the Legislature enacted the MMP (§ 11362.7 et seq.) to “[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.” (Stats. 2003, ch. 875, § 1, subd. (b)(1), italics added; see also Wright, supra, 40 Cal.4th 81, 93; People v. Mentch (2008) 45 Cal.4th 274, 290 [the MMP “immunizes from prosecution a range of conduct ancillary to the provision of medical marijuana to qualified patients”].)
Although the MMP did not literally amend the statute that established the CUA (that is, § 11362.5), the MMP did add 18 new code sections that address the general subject matter covered by the CUA. At the heart of the MMP is a voluntary “identification card” scheme that, unlike the CUA — which, as noted, provides only an affirmative defense to a charge of possession or cultivation — provides protection against arrest for those and related crimes. Under the MMP, a person who suffers from a “serious medical condition,” and the designated “primary caregiver” of that person, may register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arrest the program participant or his or her primary caregiver. Section 11362.71, subdivision (e) of the MMP provides in full: “No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article [that is, the 18 new sections comprising the MMP], unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of the article.”
The “amount established pursuant to this article” is addressed in section 11362.77, the statute at issue in this case. That section does two things: (1) it establishes quantity limitations, and (2) it sets forth a “safe harbor” by authorizing possession of specific amounts of medical marijuana within those specific limits.
Subdivision (a) of section 11362.77 provides that a “qualified patient” or primary caregiver may “possess no more than eight ounces of dried marijuana,” and may, “[i]n addition, . . . maintain no more than six mature or 12 immature marijuana plants.” (Id., subd. (a), italics added.) The next two subdivisions of the same section provide qualified exceptions for even greater amounts. Subdivision (b) specifies that a patient may “possess an amount of marijuana consistent with the patient’s needs,” on condition that the patient “has a doctor’s recommendation” stating that the quantity set out in subdivision (a) is insufficient for the patient’s medical needs. Subdivision (c) specifies that cities or counties may retain or enact guidelines allowing greater quantities than those set out in subdivision (a). These aspects of section 11362.77 evidently were designed to provide an objective, bright-line standard in lieu of the subjective, highly individualized reasonable-amount standard set forth in the CUA as construed by Tripett, supra, 56 Cal.App.4th at page 1549, thereby providing law enforcement officers with uniform standards, and providing patients who meet those standards (and their primary caregivers) with predictability. (See, e.g., Stats. 2003, ch. 875, § 1, subd. (b)(1).)
The MMP’s safe harbor provision, subdivision (f) of section 11362.77, authorizes possession of certain amounts of medical marijuana. It provides that a “qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article [that is, as provided in subds. (a)-(c) of § 11362.77].” By its terms, this safe harbor provision, which is not directly implicated on the facts of this case, would apply not only to those who hold MMP identification cards, but also to qualified patients or their primary caregivers — those persons who are entitled to the protections of the CUA but who do not obtain a program identification card that may provide protection against arrest.
As alluded to above and further explained below, subdivision (a) of section 11362.77, by its terms, does not confine its specific quantity limitations to those persons who voluntarily register with the program and obtain identification cards that protect them against arrest. It also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA. Moreover, although subdivision (b) of section 11362.77 allows possession of a quantity “consistent with the patient’s needs” that is greater than the amount set out in subdivision (a), it affords this protection only if a physician so recommends — a qualification not found in the CUA.
Defendant Patrick Kevin Kelly has long suffered from, among other ailments, hepatitis C, back problems (including ruptured disks), a fused neck, nausea, fatigue, cirrhosis, loss of appetite, and depression. Over the course of 10 years, defendant attempted to treat the pain caused by these conditions with multiple epidurals, pain therapy, nerve simulators, and various medications — some of which were very costly, exceeding his monthly income. Dissatisfied with this treatment plan, defendant decided to seek a recommendation to use marijuana as permitted by the CUA.
In mid-February 2005, Dr. Eve Elting, a medical doctor employed by Medicann, a physician-owned entity that evaluates patients who wish to use marijuana for medical purposes, met with defendant. Dr. Elting reviewed defendant’s medical records and a 15-page form that defendant had been asked to complete, spoke with him, and then gave him a written recommendation for marijuana use that expired in one year. Dr. Elting did not recommend a dosage, and defendant apparently did not register under the MMP.
Because defendant was unable to afford marijuana from a dispensary, he began to grow it at home for his personal use. Defendant consumes approximately one to two ounces of marijuana each week by smoking it, using it in a vaporizer, and consuming it in brownies. He testified that the marijuana lessens his nausea, but that its effectiveness has decreased over time.
In October 2005, a confidential informant told a law enforcement officer that he or she suspected defendant of growing marijuana. Los Angeles County Deputy Sheriff Michael Bartman went to the informant’s home in the City of Lakewood, from which the deputy could observe marijuana plants growing in defendant’s backyard. Law enforcement officers obtained a warrant, and thereafter Deputy Bartman, along with seven to nine other officers, arrested defendant and searched his home. They found seven potted marijuana plants and additional marijuana plants growing in the soil outside the garage in the backyard of defendant’s home. They also discovered seven plastic bags, most of which were vacuum sealed, each containing one to two ounces of dried marijuana, along with a small amount of marijuana in a jar. In total, deputies seized slightly more than 12 usable ounces of dried marijuana. Deputies also recovered a scale and a loaded firearm from a nightstand in the master bedroom. No other traditional indicia of sales — such as pagers, cell phones, “pay-owe sheets,” cash money in bills, “nickel and dime bags” (bags used to hold small amounts of marijuana, to be sold for $5 or $10), safes, or sophisticated growing systems — were found during the search. Nor was there any record of complaints by neighbors specifically concerning excessive foot traffic at defendant’s home.
Dr. Elting’s original written recommendation for medical use of marijuana was found in the master bedroom, and a copy was found taped to a wall of the garage. A deputy called the phone number on the recommendation and was told that defendant had a “prescription” to use marijuana. Defendant was arrested and charged with possessing marijuana for sale (§ 11359) and cultivating marijuana (§ 11358).
Prior to trial, defendant moved to bar the prosecution from eliciting testimony concerning the quantity limitations set out in section 11362.77, on the ground that the statute, in that regard, constitutes an impermissible amendment of the CUA. After an extensive hearing the trial court denied the motion. The court explained that it would instruct the jury pursuant to CALCRIM No. 2370, which, as the court observed, “doesn’t mention [specific] amounts,” and provides instead that the amount possessed or cultivated must be reasonably related to the patient’s current medical needs.
Nevertheless, the trial court ruled that the prosecutor would be permitted to question witnesses concerning section 11362.77 and also argue to the jury, consistently with this statute, that defendant possessed more than eight ounces of dried marijuana and yet lacked a physician’s recommendation for possessing more than that amount. In that regard, the trial court ruled: “I think the Legislature has a right to — I don’t really [think] it changed the [CUA]. I think it further defined it. So, that’s my ruling.”
At the subsequent jury trial, Deputy Bartman testified that, in his opinion, the marijuana recovered from defendant’s home was possessed for sale. Bartman explained that he reached this conclusion despite the circumstance that most of the dried marijuana found at defendant’s home was vacuum packed in relatively large quantities of approximately one to two ounces, instead of the one-ounce and much smaller nickel and dime bags typically used in sales. The deputy surmised that defendant had packaged the marijuana in larger quantities in order to supply other sellers, who in turn would repackage smaller amounts of the product into smaller containers. On earlier cross-examination, however, it was revealed that Deputy Bartman had minimal experience concerning marijuana used for medicinal purposes.
Defendant testified concerning his medical ailments and treatment efforts. He also explained that he used the scale that was found in his bedroom to ensure that he never took more than one ounce of marijuana with him when he traveled, because, although he knew he was permitted to possess medical marijuana, he did not “know what the law is on carrying it,” and he also understood that as a general matter “over an ounce is a felony.”
Christopher Conrad testified as a medical marijuana expert for the defense. Conrad explained that storing marijuana in vacuum-packed baggies is consistent with medicinal use, and that the total amount found (slightly more than 12 ounces of “dried mature processed flowers”) also was consistent with personal use. Conrad observed that, assuming defendant consumed the marijuana found in his home at a rate of two ounces a week, the supply would last him slightly more than six weeks. Dr. Elting testified concerning her recommendation that defendant use marijuana to treat his ailments.
On cross-examination of both Conrad and Dr. Elting, the prosecutor, consistently with the trial court’s rulings, emphasized that section 11362.77 provides that a person may possess no more than eight ounces of dried marijuana unless the person has a medical recommendation to exceed that amount, and he elicited the agreement of these witnesses with his reading of the statute. This in turn prompted the trial court to instruct the jury spontaneously, near the conclusion of the cross-examination of Conrad: “[J]ust so the jury knows, because they’re the ones that have to decide this case. This statute, basically, says you can have eight ounces of dried marijuana. But it also says later on that if . . . a city or a county says you could have more, then they could pass some law that says you can have more. That’s basically what it says.” Immediately thereafter, the prosecutor elicited testimony from Conrad establishing that, as far as the witness knew, the County of Los Angeles had not passed any law to “expand the eight ounce limitation.”
Subsequently, the jury was given an instruction modeled on CALCRIM No. 2370, which, consistently with the CUA, explained that defendant was permitted to possess or cultivate an amount of marijuana reasonably related to his current medical needs. Notably, the jury was not instructed that, in the absence of a physician’s recommendation that eight dried ounces was insufficient, defendant had a right to possess only that amount.
Thereafter, however — and again, consistently with the trial court’s denial of defendant’s motion to exclude evidence of statutory quantity limitations, and with the court’s spontaneous comment to the jury during the cross-examination of Conrad — the prosecutor in argument to the jury repeatedly stressed that defendant lacked a physician’s recommendation to possess more than eight ounces of dried marijuana. The opening three paragraphs of the prosecutor’s summation were as follows:
“This is, ladies and gentlemen, the final leg of the trial. The law is pretty simple in this case. Whether or not you agree with the law, disagree with the law, it’s irrelevant. You have to follow the law. [¶] The facts are that the defendant has [a] physician’s statement that he can use marijuana for medical purposes. That’s not in dispute, ladies and gentlemen. . . . But, what’s also clear is that the law says he can only have eight ounces of dried [marijuana]. And testimony by the defense expert Mr. Conrad stated that the amount that was recovered . . . was about . . . 12 ounces. [¶] Well, guess what? Twelve ounces is . . . more than eight ounces of marijuana. . . . So what happens if the defendant has more than eight ounces of the dried marijuana stuff? Then, there has to be some evidence to show that the doctor recommended more than that. And there is no evidence, ladies and gentlemen. It’s not disputed that there is no evidence presented to show that the defendant has any medical recommendation that exceeds the eight ounces.”
After further arguing that, in his view, the evidence demonstrated that defendant was both using marijuana and selling it, the prosecutor continued: “If, for example, you decide, well you know what? I don’t think he intend[ed] to possess for sale. But, you know what? What he can possess is only eight ounces. Remember, ladies and gentlemen. So, the excess that he possess[ed], the other four ounces you can consider that in the possession charge. . . .”
Thereafter, defense counsel’s closing argument urged the jury to determine that defendant neither sold marijuana nor intended to do so, and that the amount possessed and cultivated by defendant was reasonable for his personal medical use and hence was protected by the CUA. In response, the prosecutor, in his final summation to the jury, argued that defense counsel was “asking you to be legislators” and “interpreters of the law,” but “[t]hat’s not your job here, ladies and gentlemen. Your job is to follow the law. And the law says, whether we agree with it or not, the law says very clearly in black and white, Health and Safety Code section 11362.77[, subdivision] (a), I’m going to read it to you right now. ‘A qualified patient’ [—] we’re not disputing that he’s a qualified patient [—] ‘or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature plants per qualified patient.” The prosecutor also read to the jury section 11362.77, subdivision (b): “ ‘If a qualified patient or primary caregiver has a doctor’s recommendation that [t]his quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs.’ ”
The prosecutor asserted: “What does that mean? He can have eight ounces of the dried stuff. We know he has 12 at least, he can have eight ounces of the stuff or [sic: and] he can have six immature [sic: mature] plants. Evidence was that they found seven plants in this particular case. But you know what? We’re not saying, no, you can’t have what you need. That’s not what the law says. The law says before you can have more than that you need a doctor’s recommendation. He doesn’t have a doctor’s recommendation, ladies and gentleman.” (Italics added.) The prosecutor continued in this vein, and then concluded: “Bottom line. . . . The law, it is what it is and we all have to follow it. [¶] You’re not to guess at why the Legislature [wrote] the law the way it is. It is what it is. In this case you can’t have more than eight ounces, unless he has [a] recommendation and he doesn’t have that.”
The jury deliberated for approximately 90 minutes and found defendant guilty of “possessing more than 28.5 grams [one ounce] of marijuana (§ 11357, subd. (c))” — a lesser offense of the charged count of possessing marijuana for sale (§ 11359). The jury also found defendant guilty as charged of cultivating marijuana (§ 11358). The trial court placed defendant on three years’ probation under various terms and conditions, including that he serve two days in jail, less credit for two days already served.
The Court of Appeal held, first, that section 11362.77 of the MMP, insofar as it limits the amount of medical marijuana that a person protected by the CUA may possess, constitutes an amendment of the CUA in violation of California Constitution, article II, section 10, subdivision (c), which precludes legislative amendment of an initiative measure unless the measure explicitly permits such an amendment. Second, the Court of Appeal held that section 11362.77 is “unconstitutional” in its entirety — and “must be severed from the MMP.”
Third and finally, addressing an issue concerning which we did not grant review, the Court of Appeal determined that although the trial court properly instructed the jury under the CUA that defendant could possess an amount of marijuana reasonably related to his current medical needs, the court improperly permitted the prosecutor to elicit testimony indicating that the quantity limitations set out in section 11362.77 applied to defendant and to his defense under the CUA — and to extensively so argue to the jury. In other words, the Court of Appeal concluded that the jury was informed, in essence, that the quantity limitations set out in section 11362.77 overrode the CUA’s guarantee (confirmed in Trippet, supra, 56 Cal.App.4th at p. 1549) that a qualified patient is permitted to possess and cultivate any amount reasonably necessary for his or her medical needs. This, the Court of Appeal held, constituted prejudicial error: “We cannot conclude that the jury found defendant guilty because [it] believed the amount of marijuana he possessed and cultivated was not reasonably related to his medical needs, as opposed to believing defendant was guilty because he had more marijuana than section 11362.77 says he may have. Defendant therefore is entitled to a reversal of the judgment.”
As explained in part IV. below, we agree with the Court of Appeal’s first determination — that section 11362.77 is unconstitutional insofar as it burdens a defense, provided by the CUA, to charges of possessing or cultivating marijuana. But, as explained in part V. below, we disagree with the Court of Appeal’s second conclusion — that section 11362.77 is wholly invalid, and that it “must be severed from the MMP.”
We first address the Court of Appeal’s conclusion that section 11362.77 of the MMP, insofar as that statute establishes quantity limitations, constitutes an amendment of the CUA, in violation of California Constitution, article II, section 10, subdivision (c). That provision (quoted in full ante, fn. 15) states in relevant part: “The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”
Significantly, as alluded to earlier, section 11362.77 of the MMP does not confine the reach of its quantity limitations to those persons who voluntarily elect to register with the program and obtain identification cards, but instead extends its reach to “qualified patient[s]” and their “primary caregiver[s].” The term qualified patient is defined by the MMP as “a person who is entitled to the protections of Section 11362.5 [the CUA], but who does not have an identification card issued pursuant to this article [that is, the MMP].” (§ 11362.7, subd. (f), italics added.) The term primary caregiver is defined by the MMP as an “individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person.” (§ 11362.7, subd. (d).) In other words, section 11362.77, on its face, sets quantity limitations not only for those persons who voluntarily register under the MMP and hold a valid identification card that provides protection against arrest. The statute also applies to and sets limits for all those “qualified patient[s]” and “primary caregiver[s]” who are entitled under the CUA to possess or cultivate any amount reasonably necessary for the patient’s current medical needs. We proceed to consider whether, in this respect, section 11362.77 constitutes an amendment of the CUA, in violation of California Constitution, article II, section 10, subdivision (c).
We begin with the observation that “[t]he purpose of California’s constitutional limitation on the Legislature’s power to amend initiative statutes is to ‘protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent.’ [Citations.]” (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484 (Proposition 103 Enforcement Project).) In this vein, decisions frequently have asserted that courts have a duty to “ ‘ “jealously guard” ’ ” the people’s initiative power, and hence to “ ‘ “apply a liberal construction to this power wherever it is challenged in order that the right” ’ ” to resort to the initiative process “ ‘ “be not improperly annulled” ’ ” by a legislative body. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 776 [construing analogous right to enact initiative county ordinances under Cal. Const., art. II, § 11, as governed by Elec. Code, § 9125]; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, and cases cited [construing analogous right to enact initiative city ordinances under what is presently Cal. Const., art. II, § 11].)
At the same time, despite the strict bar on the Legislature’s authority to amend initiative statutes, judicial decisions have observed that this body is not thereby precluded from enacting laws addressing the general subject matter of an initiative. The Legislature remains free to address a “ ‘related but distinct area’ ” (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830 (San Diego NORML); see also Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43 (Mobilepark West Homeowners Assn.) [construing the related initiative power of city voters under Cal. Const., art. II, § 11, and Elec. Code, § 9217]) or a matter that an initiative measure “does not specifically authorize or prohibit.” (People v. Cooper (2002) 27 Cal.4th 38, 47 (Cooper); see San Diego NORML, supra, 165 Cal.App.4th at p. 830.)
With these considerations in mind, we turn to the case law addressing what constitutes an “amendment” for purposes of article II, section 10, subdivision (c). Although some decisions contain broad definitions of the amendment process in this context, for purposes of resolving the issue in the present case we need not endorse any such expansive definition. It is sufficient to observe that for purposes of article II, section 10, subdivision (c), an amendment includes a legislative act that changes an existing initiative statute by taking away from it.
Applying this definition and related formulations (see ante, fn. 18), courts have determined that certain statutes constitute impermissible amendments of initiative measures.
On other facts, courts have found no amendment, and hence no violation of article II, section 10, subdivision (c).
The Court of Appeal’s analysis began with a review of the voters’ intent in enacting the CUA. The court observed: “The CUA does not quantify the marijuana a patient may possess. Rather, the only ‘limit’ on how much marijuana a person falling under the CUA may possess is” that it must be “ ‘reasonably related to the patient’s current medical needs.’ ” The appellate court continued: “Ballot materials make clear that this is the only ‘limitation’ on how much marijuana a person under the CUA may possess.[ ] . . .
According to these ballot statements, the CUA does not place a numeric cap on how much marijuana is sufficient for a patient’s personal medical use. [¶] Section 11362.77, however, does just that. It specifies that a qualified patient may possess eight ounces of dried marijuana [and may maintain] six mature or 12 immature marijuana plants. (§ 11362.77, subd. (a).) A qualified patient may possess a greater quantity if the patient has a doctor’s recommendation that the quantity in subdivision (a) does not meet the qualified patient’s medical needs. (§ 11362.77, subd. (b).)[ ] In other words, section 11362.77 . . . has clarified what is a reasonable amount for a patient’s personal medical use, namely, eight ounces of dried marijuana [or a greater quantity if a physician so recommends, plus cultivation of six mature or 12 immature marijuana plants]. [¶] But clarifying the limits of ‘reasonableness’ is amendatory.”
The Court of Appeal further observed: “The Legislature’s imposition of quantity limits in section 11362.77 . . . imposes a numeric cap [and the requirement of a physician’s recommendation in order to possess more than eight ounces] where the CUA imposed none. Indeed, the Legislature itself recognized it had overstepped its bounds in imposing the cap. In 2004, Senator John Vasconcellos, who introduced the MMP, authored and introduced Senate Bill No. 1494. . . . [That bill] would have amended section 11362.77 by, among other things, deleting the eight-ounce and plant limits [and substituting a new subd. (a)] as follows: ‘A qualified patient, a person with an identification card, or any designated primary caregiver may possess any amount of marijuana consistent with the medical needs of that qualified patient or person with an identification card.’ (Italics added.)[ ] [¶] In introducing Senate Bill No. 1494 . . . Senator Vasconcellos acknowledged the MMP’s constitutional flaw when he said, ‘ “[Senate Bill No. 1494] is a clean-up bill . . . intended to correct a drafting error in my medical marijuana bill signed into law last year. . . . [The MMP’s] language may be problematic because it states that all qualified patients (with or without identification cards) are subject to guidelines provided in [the] statute. Despite intent language in our bill stating that the program is intended to be voluntary, many advocates argued that it amends the initiative by making the guidelines mandatory — therefore making it unconstitutional. In order to avoid any legal challenges, it is important to make a distinction between ‘qualified patient’ (which applies to all patients) and ‘persons with identification cards.’ ” ’ (Assem. Com. on Pub. Safety[, Analysis of] Sen. Bill No. 1494 (2003-2004 Reg. Sess.) as amended Mar. 22, 2004, p. 3; see also Sen. Health & Human Services Com., Analysis of Sen. Bill No. 1494 (2003-2004 Reg. Sess.) as amended Mar. 22, 2004, p. 3 [the change effected by the MMP ‘could be viewed as an unlawful amendment to Proposition 215, an initiative that did not provide a mechanism for amendments’].)”
Finally, the Court of Appeal below concluded: “Deleting the quantity limits in the manner suggested by Senate Bill No. 1494 . . . would have corrected the constitutional problem created when the Legislature enacted the MMP without voter approval. Governor Schwarzenegger, however, vetoed the bill, citing a concern that the bill removed ‘[r]easonable and established quantity guidelines.’ (Governor Arnold Schwarzenegger’s [veto message concerning] Sen. Bill No. 1494, July 19, 2004.) That may be a valid concern. Nevertheless, it is a concern that cannot be addressed by the Legislature acting without the voters’ approval. We therefore . . . hold that section 11362.77 unconstitutionally amends the CUA . . . .”
In this court, both parties essentially agree with the foregoing conclusion reached by the Court of Appeal. The Attorney General, who petitioned for this court’s review of the appellate decision, states at the outset of his opening brief: “Respondent does not contest the Court of Appeal’s conclusion that section 11362.77 is unconstitutionally amendatory insofar as it limits an in-court CUA defense.” The Attorney General subsequently concludes that “application of section 11362.77’s limits to the in-court CUA defense exceeds the boundaries of legislative power under article II, section 10, subdivision (c) . . . by replacing the CUA’s ‘reasonableness’ standard with specified, numeric guidelines.” Defendant, unsurprisingly, agrees with Attorney General in these respects.
The interpretation and application of article II, section 10, subdivision (c) adopted by the Court of Appeal and the parties — namely, that it prohibits an amendment that arguably merely clarifies an initiative statute by substituting seemingly reasonable, objective standards and restrictions, in place of a difficult-to-apply “reasonable amount” test — may at first blush seem to be overly strict. Indeed, as discussed below, a determination that a statute such as section 11362.77 is unconstitutional in this regard almost certainly would not be the conclusion reached by a court faced with similar legislation under the law of any other state. And yet, as explained below, the conclusion reached by the Court of Appeal and the parties is amply supported by, and indeed compelled by, not only the prior California cases that have discussed the initiative power and applied the foregoing constitutional provision, but also by the history of our state’s initiative process.
As noted earlier, article II, section 10, subdivision (c) of the California Constitution states in relevant part: “The Legislature . . . may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” California’s bar on legislative amendment of initiative statutes stands in stark contrast to the analogous constitutional provisions of other states. (Center for Governmental Studies, Democracy by Initiative: Shaping California’s Fourth Branch of Government (2d ed. 2008) p. 114 (hereafter Democracy by Initiative, 2d ed.) [“No other state in the nation carries the concept of initiatives as ‘written in stone’ to such lengths as to forbid their legislatures from updating or amending initiative legislation”]; see generally Miller, Constraining Populism: The Real Challenge of Initiative Reform (2001) 41 Santa Clara L.Rev. 1037, 1046-1047 (hereafter Miller); Manheim & Howard, A Structural Theory of the Initiative Power in California (1998) 31 Loyola L.A. L.Rev. 1165, 1197-1198.)
Currently, 21 state constitutions allow the electorate to adopt statutes by initiative measure. (Dubois & Feeney, Lawmaking by Initiative: Issues, Options and Comparisons (1998) pp. 27-28 (hereafter Dubois and Feeny, Lawmaking by Initiative).) Of those jurisdictions, 12 place no limitation whatsoever upon the authority of the legislature to repeal or amend an initiative statute. In those states, an initiative statute is treated just like any other statute, and may be repealed or amended at any time. (See Comment, Power of the Legislature to Amend or Repeal Direct Legislation (1942) 42 Wash. U. L.Q. 439, 440-442 [decisions unanimously have held that, absent language in a charter explicitly restricting a legislature’s right to amend or repeal, a state legislature retains that authority even as to initiative statutes].)
Eight of the remaining nine states that allow voters to adopt statutes by initiative measure place various limitations upon the authority of the legislature to act in response to an initiative statute. Two of these jurisdictions allow amendment by the legislature at any time, but impose a moratorium on legislative repeal until two years after adoption of the initiative statute. Three states place a two- to seven-year moratorium on repeal or amendment; and yet some of these same jurisdictions allow amendment by a two-thirds vote during the moratorium period, and by a simple majority thereafter. Three other states allow amendment at any time by a supermajority vote of the legislature, and one of those states — Arizona — additionally requires that the amending legislation “further[s] the purposes” of the original initiative measure.
In order to illuminate the scope and effect of California’s constitutional provision prohibiting the Legislature from amending an initiative adopted by the people, we describe below the history of the provision and of the various attempts and proposals to change it.
At the close of the 19th century, a small but vocal contingent of reformers, pointing to the record of “direct democracy” in Switzerland, campaigned for the adoption of the initiative and referendum process in the United States. A concerted effort to include similar provisions in the California Constitution began early in the 20th century and consumed a decade. During that time 10 states — led by South Dakota, Utah, and Oregon — acted prior to California and granted the powers of initiative and referendum to the electorate.
Although the provisions of some of those state constitutions withheld authority from the governor to veto initiative statutes passed by the electorate, all but one imposed no restraint whatsoever upon the state legislature’s power to either repeal or amend an initiative statute. Oklahoma’s provision, enacted in 1907, most explicitly preserved legislative power to repeal or amend initiative laws: “The reservation of the powers of the initiative and referendum in this article shall not deprive the legislature of the right to repeal any law, [or] propose or pass any measure, which may be consistent with the constitution of the State and the Constitution of the United States.” (Okla. Const. of 1907, art. V, § 7, italics added, as reprinted in Kettleborough, supra, at p. 1098.) The sole exception to this approach in a state charter was reflected in Michigan’s provision, effective in early 1909, which specified the most limited authority for the state legislature to act with respect to a matter that had been adopted by the voters as an initiative. The Michigan provision, no longer in effect, read: “No act . . . adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in said initiative measure, but the legislature may propose such amendments, alterations or repeals to the people.” (Mich. Const. of 1909, art. V, § 1, italics added, as reprinted in Kettleborough, supra, at p. 689.)
During the time in which other states were incorporating initiative provisions into their respective constitutions, the California Legislature permitted charter cities to do the same as a local matter. San Francisco, in 1898, and Los Angeles, in 1903, each adopted charters permitting local initiatives, and in doing so included provisions similar to that subsequently adopted by Michigan in 1909, under which the legislative body, although barred from amending an initiative measure on its own, at least was authorized to propose that the electorate adopt a specific amendment to an initiative ordinance. (S.F. Charter, art. II, § 20, as adopted by the S.F. electorate May 26, 1898; L.A. City Charter, art. XIX, § 198a, subd. (b), as amended Jan. 1, 1903.) The City of Sacramento, by contrast, took a different and stricter approach when it revised its own charter in 1903 to permit the enactment of ordinances by initiative. Its charter provided, simply and starkly: “[A]ny ordinance proposed by petition . . . which shall be adopted by a vote of the people, cannot be repealed or amended, except by a vote of the people.” (Sac. City Charter, art. XII, § 231, as amended Nov. 3, 1903, italics added.)
At each session of the California Legislature convened between 1903 and 1909, proposals were advanced to put before the electorate constitutional amendments designed to extend the initiative and referendum statewide. Although most of these bills departed from the prevailing approach of the other states (and followed the strict approach of the Sacramento charter) by expressly barring any amendment by the Legislature of initiative statutes, legislation proposed in 1907 temporarily changed course and sought to adopt the majority view in the United States, allowing legislative amendment of statutes adopted by initiative. No matter how framed, however, each effort to create a statewide initiative power met the same fate: it failed to secure the necessary support of two-thirds of each house of the Legislature, and hence no such proposal was submitted to the electorate.
Thereafter, in drafting the ultimately successful California measure of 1911, the proponents did not follow the majority model, under which the state legislature was left free to repeal or amend initiative statutes just like any other statute. Nor did the drafters of the California provision follow even the minority model of San Francisco, Los Angeles, and Michigan, under which the legislative body could not directly repeal or amend, but at least could propose to the voters that an initiative measure be repealed or amended. Instead, California’s legislative drafters proposed, and the California voters ultimately adopted, a measure that — more strictly than any other state (then or now), but like the then-extant Sacramento charter — withheld all independent authority from the Legislature to take any action on measures enacted by initiative, unless the initiative measure itself specifically authorized such action. In Senate Constitutional Amendment No. 22, the voters endorsed, as Proposition 7 on the 1911 ballot, the predecessor to our present article II, section 10, subdivision (c), as follows: “Any act, law or amendment to the constitution submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon, at any election, shall take effect five days after the date of the official declaration of the vote by the secretary of state. No act, law or amendment to the constitution, initiated or adopted by the people, shall be subject to the veto power of the governor, and no act, law or amendment to the constitution, adopted by the people at the polls under the initiative provisions of this section, shall be amended or repealed except by a vote of the electors, unless otherwise provided in said initiative measure; but acts and laws adopted by the people under the referendum provisions of this section may be amended by the legislature at any subsequent session thereof.” (Cal. Const., former art. IV, § 1, added by Prop. 7, Special Elec. (Oct. 10, 1911), italics added.)
At the next legislative session, two proposed constitutional amendments were introduced, each of which endeavored to change the new initiative provision by, among other things, giving the Legislature authority to amend initiative statutes upon a supermajority vote of each house. Neither effort secured the necessary legislative support of two-thirds of each house, and hence neither proposal was submitted to the voters.
Similar unsuccessful efforts to amend the initiative process were undertaken in subsequent years. In 1919, Assembly Constitutional Amendment No. 16 was introduced in the Legislature, proposing a constitutional amendment that, if approved by the voters, would have eliminated the initiative power and permitted the Legislature to repeal or amend previously enacted initiative statutes. Related, but less drastic, legislative proposals for constitutional amendments were made in the early- to mid-1920’s. One proposal sought to allow legislative repeal or amendment after a moratorium of four years following adoption of an initiative statute. Another proposal, consistent with the National Municipal League’s 1924 model state constitution, proposed to specify that initiative laws be “subject to amendment by the legislature” so long as the amendment did not “destroy the intent and purpose of the act or . . . cripple or prevent the carrying out of the provisions thereof.”
In the meantime, statutes enacted by the electorate as initiatives posed problems that demanded attention and amendment. And yet, such statutes were so difficult to amend that they were aptly characterized by contemporaneous commentators as being, “in effect,” “quasi-constitutional amendments.” (Key & Crouch, supra, at p. 481.) For example, although it became clear that an amendment would benefit the Chiropractic Initiative Act, adopted in 1922, the Legislature apparently believed that it lacked clear authority even to submit to the voters any proposed measure to amend that initiative statute. Accordingly, no proposal to change the 1922 chiropractic act emanated from the Legislature. Instead, signatures laboriously were gathered to place onto the ballot proposed amendments in the form of follow-up voter initiative measures. Such ballot measures concerning the 1922 chiropractic act were submitted to the voters, and rejected by them, in 1934 and 1939.
This and a similar experience with the equally problematic “Torrens Land Title Act” or Land Title Law, adopted by the voters as an initiative statute in 1914, eventually triggered the first of only three substantive changes that have been made to the Constitution’s initiative provision since its adoption in 1911. (See post, fn. 55.) There apparently was no entity willing and able to mount an initiative campaign to amend the Torrens Act initiative statute, and as observed earlier, the Legislature evidently believed that the strict language of the constitutional provision (former art. IV, § 1) might be construed to forbid the Legislature even from proposing such an amendment to the voters. In response, in 1945 the Legislature adopted, and then proposed to the voters, Senate Constitutional Amendment No. 22 (Stats. 1945, ch. 147, pp. 3163-3164). That provision was designed to amend article IV, section 1, by adding section 1b, to permit “the Legislature to amend or repeal any act adopted by vote of the people under the initiative, to become effective only when submitted to and approved by the electors.” (Stats. 1945, ch. 147, p. 3164, italics added.) The ballot argument in favor of Senate Constitutional Amendment No. 22, submitted to the voters as Proposition 12, explained that “adoption . . . will do away with our present cumbersome methods and will provide an orderly and responsible way in which amendments to initiative laws may be proposed, and at the same time preserve to the people their primary right to approve or reject all such measures.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1946) argument in favor of Prop. 12, pt. I, p. 12, italics added.) The voters adopted Proposition 12 at the 1946 General Election.
In 1948, 1950, and 1952 the Legislature employed its new authority to pass and then propose for voter approval a series of amendments to the 1922 chiropractic initiative statute. Thereafter, to address the problems related to the 1914 Torrens Act initiative statute, the Legislature in 1954 used its new authority to propose an amendment to that law, giving the Legislature broad power to amend or repeal that particular act. (Stats. 1955, 1st Ex. Sess. 1954, ch. 58, § 1, pp. 331-332.) The voters ratified the Legislature’s proposal at the 1954 General Election, thereby removing the need for any future approval by the electorate for amendments to the Torrens law, and subsequently the Legislature repealed that law. (Stats. 1955, ch. 332, § 1, pp. 789-790.) No such broad authorization had been sought by or given to the Legislature with respect to the 1922 chiropractic initiative statute, however, and as a result, on seven occasions since 1960, the Legislature has been forced to ask the electorate to approve additional amendments to this 1922 initiative statute.
Although the 1946 amendment to former article IV, section 1, gave the Legislature a method by which it might propose a specific amendment to, or repeal of, an initiative-enacted law, that change also carefully preserved article IV’s original strict safeguards by requiring the electorate’s approval of any legislative proposal to amend or repeal (unless the initiative measure itself allowed amendment or repeal without voter approval). Even this slight modification in the relationship between statutes adopted by initiative and those adopted by the Legislature, however, still left voter-adopted initiative statutes in California far more insulated from adjustment than in any other jurisdiction.
In the mid-1960’s, California, assisted by the California Constitution Revision Commission, undertook a revision of the Constitution. (See generally Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 752-754.) Although some commentators questioned the then-existing provision of article IV that strictly limited the legislative amendment of statutes adopted by initiative, no specific proposal was made to change that rule. After conducting its own extensive review, the commission recommended no change in that respect. (See Cal. Const. Revision Com., Proposed Revision (1966) p. 47 [proposing revised art. IV, § 24, subd. (c)] (Proposed Revision).) Nor did the Legislature’s joint committee question that determination. (See Assem. Interim Com. on Const. Amends., Final Reps. (Jan. 2, 1967) 2 Appen. to Assem. J. (1967 Reg. Sess.).) The resulting Assembly Constitutional Amendment No. 13 proposed numerous revisions of article IV and various other articles, but no change concerning the strict limitation on legislative amendment of initiative statutes. (See Stats. 1966, 1st Ex. Sess., ch. 139, pp. 960-961, 971-972.)
In the 1966 General Election, the voters adopted Assembly Constitutional Amendment No. 13 as Proposition 1-a, which relocated the initiative provisions to article IV, section 22 et seq. Revised article IV, section 24, subdivision (c) rephrased the former provision concerning repeal and amendment, without substantive change, to read as it does today: “The Legislature may . . . amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” Thereafter, following two more failed attempts to change the provision to allow amendment by the Legislature, without voter approval, of statutes adopted by initiative, the provision was renumbered in 1976, and remains today, as article II, section 10, subdivision (c).
In the ensuing decades, numerous commissions and reports have recommended that California’s initiative provision be altered to permit legislative amendment of initiative statutes without voter approval, and on occasion bills have been submitted to so amend the Constitution. But again, no such proposal has secured the necessary two-thirds vote of each house of the Legislature, and hence no such proposal has been submitted to the electorate.
With this background in mind, we return to the Court of Appeal’s threshold determination that section 11362.77 of the MMP, insofar as it places a specific limitation upon the amount of medical marijuana that a person protected by the CUA may possess and cultivate, constitutes an amendment of the CUA in violation of California Constitution, article II, section 10, subdivision (c). As observed earlier, this constitutional provision specifies that the Legislature may amend an initiative measure solely “by another statute that becomes effective only when approved by the electors” — unless “the initiative statute permits” such amendment explicitly.
In the present case, the CUA — unlike many other initiative measures in recent decades — did not grant the Legislature authority to amend. Nor did the Legislature merely propose the MMP and submit it to the electorate for approval. Instead, the Legislature adopted that scheme on its own, without seeking ratification by the electorate.
In view of the case law recited in part IV.A. and B. — which is, in turn, consistent with the history of article II, section 10, subdivision (c) recited in part IV.D.2 — we conclude that section 11362.77, by imposing quantity limitations upon “qualified patients” and “primary caregivers,” amends the CUA. Under the CUA as adopted by Proposition 215, these individuals are not subject to any specific limits and do not require a physician’s recommendation in order to exceed any such limits; instead they may possess an amount of medical marijuana reasonably necessary for their, or their charges’, personal medical needs. By extending the reach of section 11362.77’s quantity limitations beyond those persons who voluntarily register under the MMP and obtain an identification card that provides protection against arrest — and by additionally restricting the rights of all “qualified patients” and “primary caregivers” who fall under the CUA — the challenged language of section 11362.77 effectuates a change in the CUA that takes away from rights granted by the initiative statute. (Cooper, supra, 27 Cal.4th 38, 45 [finding no amendment]; Knight, supra, 128 Cal.App.4th 14, 25 [same]; Proposition 103 Enforcement Project, supra, 64 Cal.App.4th 1473, 1484-1486 [finding an impermissible amendment].) In this sense, section 11362.77’s quantity limitations conflict with — and thereby substantially restrict — the CUA’s guarantee that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition. In that respect, section 11362.77 improperly amends the CUA in violation of the California Constitution.
As the Governor suggested when he vetoed the 2004 legislation that had been designed to amend section 11362.77 of the MMP in order to avoid the constitutional problem identified above, it may well be prudent and advisable for the Legislature to be able to change the CUA so as to set forth specific guidance as to quantity limitations, for the mutual benefit of law enforcement officials as well as authorized users of medical marijuana. (See Governor’s veto message concerning Sen. Bill No. 1494 (2003-2004 Reg. Sess.) Sen. Daily J. (July 20, 2004) pp. 4676-4677.) In a similar vein, as observed ante, footnote 57, commissions and commentators have urged that the California Legislature should have the same authority possessed by the legislatures of all other states to directly amend an initiative statute in order to correct errors, clarify application, or simply make alterations that have been proved by experience to be warranted. And yet, as demonstrated by the history and case law set forth above, the flexibility to make desirable or even necessary adjustments to initiative statutes long has been, and remains, foreclosed by article II, section 10, subdivision (c), and its predecessor incarnations.
As observed earlier, beginning almost immediately after adoption of the initiative provision in 1911, and continuing through a number of efforts in recent decades, various proposals have been advanced, and legislative attempts have been made, to change California’s constitutional system in order to bring the state in line with our sister jurisdictions. These efforts have aimed to eliminate the strict limitation on the power of the Legislature (or at least to moderate that power) by, for example, allowing amendments that “further the purpose” of the original initiative measure, or allowing amendments after a moratorium of years, or allowing amendments by a supermajority vote of both houses. And yet all such efforts have failed.
Over the course of the decades during which California has had the initiative process, the sole substantive alteration to the governing constitutional provision occurred in 1946, when it was changed to allow the Legislature at least to propose an amendment to an initiative statute, subject to ratification by the statewide electorate at the ballot. That minor adjustment to the strict rule of nonamendability highlights and reinforces the closely circumscribed limits of the Legislature’s authority in this regard: the Legislature is powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c). Therefore, we are compelled to conclude that section 11362.77 impermissibly amends the CUA and, as we explain below, is unconstitutional as applied in this case.