The California Attorney General has issued a strange and interesting set of “guidelines” (pdf) around medical marijuana, a document whose legal significance would seem to be totally unclear. These guidelines are actually required by statute (H& S 11362.81 but they are coming at a time when the medical marijuana law is real, seriously unsettled as a result of the recent decisions in Kelly and Phomphakdy. As a result, these guidelines try to present the medical marijuana law as a coherent body of regulations precisely at the time when these regulations are the most confused they’ve been in the last 12 years. I think it’s really problematic. The AG’s press release .
The most striking thing about this announcement, from my point of view, is its seeming disregard for the way California government works. The Attorney General is not the legislature and does not have the power to re-write the Health and Safety Code to mean whatever it would like it to mean. In other words, even though the AG states on page 6 that “Qualified patients claiming protection under Proposition 215 may possess an amount of marijuana that is ‘reasonably related to their current medical needs’ ” that assertion is simply not the law of California at the moment. At least, it’s not the law as it’s actually enforced by police and prosecuted by district attorneys. Rather, it seems to be what the AG would like the law to be.
The guideline also suggests on page seven that none- who possess more than eight ounces of marijuana can seek immunity from arrest, and that law enforcement should evaluate this claim based on “the totality of the circumstances,” a phrase borrowed from Fourth Amendment jurisprudence. That, too, seems to go beyond the text of H& S 11362.71 which provides protection for arrest — but only for individuals who possess marijuana within the quantity limits of the Medical Marijuana Program, i.e. ounces, six mature plants, etc.
Meanwhile, on the basis of this very same “totality of the circumstances” test, the AG says that an officer can also make a determination that a none- marijuana quantities “exceeds the applicable possession guidelines” and may seize the marijuana. Does that include situations when a none- possesses less than eight ounces? Tough to say.
Totally bizarre. I think the intentions behind this document are basically good. But, uh, there’s this little thing called separation of powers. If the Attorney General can rewrite the law at by issuing a “guideline,” we’re in serious trouble.