Aug 08 2009

Marijuana legalization and California intiatives

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California State Capital

I recently published an article comparing the two initiatives filed in California to legalize marijuana.

This article is an attempt to outline and clarify the California initiative process and how initiatives in California relate to bills passed by the legislature, with a focus on the impact these initiatives could have on California’s current medical marijuana laws.

One initiative (THC 2010) will have no effect on these existing medical marijuana laws as it specifically exempts them.  The other (ROT 2010) has no such exemption and therefore could be used to strike or amend any or all of them.

These marijuana legalization initiatives are currently at Step Two of the process as outlined in the California Initiative Guide.  The draft text of both has been submitted to the attorney general for title and summary; the first on 15 Jul 09, the second on 28 Jul 09.

The Attorney General has 15 days from the filing date to prepare a title and summary and submit it to the Secretary of State.  It’s interesting to note that the proponents may submit amendments during this 15-day period.  Thus the latter initiative, Oaksterdamn U’s "Regulate, Control, and Tax Cannabis Act of 2010" (ROT 2010), has until the 18th of August to amend their proposal.

If the initiative requires fiscal analysis, and these will, the Department of Finance and the Joint Legislative Budget Committee have 25 days to prepare a report from the time they receive the final version of the measure.  When this is complete, the proponents have 150 days to obtain the required 433,971 valid signatures and petition to have the proposal put on the ballot.

After the signatures are verified and the petition is qualified for the ballot the initiatives will be sent to both houses of the California legislature, each of which will be required to hold public hearings on legalizing marijuana prior to the 30 days preceding the election on November 2nd.  Keep in mind, there is also a bill in the Assembly, AB 390, that would legalize marijuana and is similar to the first marijuana legalization initiative, the Tax, Regulate, and Control Cannabis Act of 2010 (THC 2010).

Until the petition is submitted the proponents listed on the application can withdraw the initiative.  Thus, during the 5 or so months of signature gathering the following section of the California Elections Code applies:

9604. (a) Notwithstanding any other provision of law, any person may engage in good faith bargaining between competing interests to secure legislative approval of matters embraced in a state or local initiative or referendum measure, and the proponents may, as a result of these negotiations, withdraw the measure at any time before filing the petition with the appropriate elections official.

(b) Withdrawal of state initiative or referendum measures shall be effective upon receipt by the Secretary of State of a written notice of withdrawal, signed by all proponents of the measure.

The legislature has no authority to alter an initiative or prevent an initiative from being on the ballot. 

One writer has suggested that if AB 390 should pass before the November 2, 2010 election that the initiatives "won’t matter".  Maybe.  Maybe not.

The Tax, Regulate and Control Cannabis 2010 Act (THC 2010) cannot be amended without voter approval.  However, it specifically exempts California’s medical marijuana laws from its provisions and will therefore have no impact on them.

Oaksterdamn U’s ROT 2010 has no such exemption and since as an initiative it is of higher authority than an act of the legislature it could be used to strike or amend any or all of the provisions of California Medical Marijuana Program – California Health & Safety Code §§11362.7-11362.83.  Since it is of equal authority as The Compassionate Use Act of 1996 and 14 years subsequent, it seems it would easily trump Health & Safety Code §11362.5.

If AB 390 should be passed before the election on 2 Nov 10 and the initiatives are not withdrawn by the proponents, either of them could be used to strike or amend it and their passage would be by a vote of the people and subsequent to the act passed by the legislature.  Therefore it seems there would be no question the initiative would trump any legislation passed prior to the election.

Initiatives passed by majority vote take effect the day after the election, unless the initiative provides otherwise.  If the provisions of two or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.  An initiative cannot be amended or repealed without approval by the voters unless the initiative specifically permits this.  The Tax, Regulate and Control Cannabis Act of 2010 (THC 2010) does not permit this.

The Regulate, Control and Tax Cannabis Act of 2010 by Richard Lee and Oaksterdamn U does.  This means after it is passed the legislature may alter it without approval by the people.  By now, if the legislature had been able to amend Proposition 215, anyone sick enough to need medical marijuana would be too sick to jump through all the hoops required to get it.

California has two medical marijuana statutes, one an initiative and one a bill passed by the legislature.  The initiative was Proposition 215, The Compassionate Use Act of 1996, which became California Health and Safety Code § 11362.5.  The bill was SB 420, the Medical Marijuana Program, which was passed in 2003 and became California Health and Safety Code §§ 11362.7-11362.83.

Recently, the California Court of Appeals struck § 11362.77 dealing with the amount of marijuana a patient could possess on grounds it amended an initiative without the approval of the voters.  The Compassionate Use Act of 1996 contained no limits.  This case is currently before the California Supreme Court.

ROT 2010 sets a limit of one ounce for personal use and makes no exemption for medical patients.  Therefore, it will be in the courts as soon as it is passed; a legal battle medical patients really don’t need, a legal battle that could result in the destruction of The Compassionate Use Act of 1996.

The limits in Oaksterdamn U’s ROT 2010 are just one of many conflicts between it and the Compassionate Use Act of 1996 as well as the California Medical Marijuana Program.  If it is passed it will likely unleash a Pandora’s box of lawsuits.

For more info:
Is SB420 Illegal? – FixLosAngeles.com | 4 Aug 09
Comparing California marijuana/cannabis legalization initiatives – examiner.com | 31 Jul 09
Oaksterdamn U wants to tax marijuana without limit – examiner.com | 29 Jul 09
Green Cross issues press release condemning Oakland marijuana tax – examiner.com | 26 Jul 09
Selling out the medical marijuana movement? – examiner.com | 24 Jul 09
Tax Prozac not medical marijuana – examiner.com | 24 Jul 09
Initiative Guide – California Secretary of State, Elections & Voter Information
California Constitution, Article II – State of California
California Elections Code §§ 9000-9015 – Justia.com
California Elections Code §§ 9030-9035 – Justia.com

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