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People v. Mentch (Cal. Supreme Ct. - Dec. 17, 2008)

By Shaun Martin

This may be surprising for those who know me as a relentless cynic, but I'm affirmatively proud -- yes, proud -- that I reside in California. There's a part of me that identifies with this Great State. I like it. I want to make it better. And I'm happy, and proud, when it does something good. (The flip side, of course, is that it makes me extraordinarily sad when it does something bad, but that's another story.)br /br /Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion emsua sponte/em in the way it did. Bravo.br /br /A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. a href="http://www.courtinfo.ca.gov/opinions/documents/S148204.PDF"Not good enough, the Court said/a. Which made sense.br /br /But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care ubefore/u you start providing the pot. I thought that this part of the opinion was wrong, and a href="http://calapp.blogspot.com/2008/11/people-v-mentch-cal-supreme-ct-nov-24.html"explained why a couple of hours after the opinion came out/a. As I'm wont to do.br /br /Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.br /br /So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also emsua sponte/em a href="http://www.courtinfo.ca.gov/opinions/documents/S148204M.PDF"amends the opinion to add the following footnote/a: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."br /br /Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.br /br /I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.br /br /So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.

Full post as published by California Appellate Report on December 18, 2008 (boomark / email).