The Hidden Significance of People v. Kelly

In People v. Kelly (here), the California Supreme Court held that a statute limiting the amount of marijuana that a person could possess under Prop. 215 was an unconstitutional amendment to that initiative. The holding wasn't a big surprise--indeed, by the time the case got to the Supreme Court both the defense and the prosecution agreed that the statute was unconstitutional. The reason is simple: because Prop 215 didn't contain a quantity limit on how much marijuana someone could possess for their personal medical needs, the Legislature couldn't provide one, since to do so would abridge the rights granted by the initiative.

What's more interesting, though, is note 19 of the decision, where the Court questioned some of the broad language in earlier lower court decisions that had given a very expansive reading of what constitutes an impermissible amendment. The Court made clear in this footnote that, despite the language in cases such as Franchise Tax Bd. v. Cory, 80 Cal. App. 3d 772 (1980), the Legislature is free to clarify initiatives, or legislate on the same general or a related subject, as long as the new statute doesn't "take anything away" from the existing initiative. This is sure to be a fruitful area of litigation in the future.

Supreme Court Invaldiates Limits on Medical Marijuana

The Supreme Court yesterday held that a statute limiting the amount of medical marijuana one can possess was unconstitutional as an invalid amendment to Prop. 215, the medical marijuana initiative. The Los Angeles Times story is here; the Sacramento Bee story is here; the decision itself is here. More analysis to follow.

Legislature's Attempt To Amend Prop. 36 Held Invalid

Proposition 36, enacted in 2000, requires treatment rather than incarceration for certain drug possession offenses. It also provides that the measure can be amended by the Legislature, but only by a two-thirds vote and only if the amendment is "to further the act" and is "consistent with its purposes. (Disclosure: I helped draft Prop. 36.) In Gardner v. Schwarzenegger (here), the Court of Appeal held that SB 1137 was an invalid amendment to Prop. 36. As the court explained, the provisions of the bill "permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion." The court had no difficulty finding this irreconcilable with the pro-treatment, anti-incarceration purposes of the initiative.

One interesting provision of SB 1137 is that it provided that the entire bill would be submitted to the electorate if any of its provisions were held invalid. (The Legislative Counsel had opined that the bill was an improper amendment to Proposition 36.) The court held this provision unconstitutional, too, as an invalid referendum of an already-enacted statute. Nor could this provision be upheld under the constitutional provision permitting the Legislature to put amendments to initiatives on the ballot, because the statute had already taken effect (although it was immediately enjoined).

This decision seems clearly right. I see no reason why it should be reviewed by the California Supreme Court.

Can the Legislature Suspend Income Tax Indexing?

According to this article by Dan Walters of the Sacramento Bee, the Legislature is considering suspending income tax indexing for a year to help solve the State's budget crisis. But there's a problem. Proposition 7, a statutory initiative adopted in June 1982, requires permanent indexing of the income tax. For the Legislature to "suspend" indexing would therefore seem to conflict with the statute. Accordingly. this would be an impermissible amendment by the Legislature of a statutory initiative. (Prop. 7 does not contain a provision permitting the Legislature to amend it.) Cases such as Franchise Tax Board v. Cory have given a pretty broad reading of what constitutes an amendment to a statutory initiative; the statute enacted by the Legislature doesn't have to formally amend the initiative statute, only to conflict with it.