The fate of Measure B will remain in limbo as parties on both sides await rulings from Mendocino Superior Court Judge John Behnke and the California Supreme Court.

Mendocino County residents George Hanamoto and Paula Laguna refiled their lawsuit against Measure B, which was passed by voters last month, based on a California Appellate Court decision in People v. Kelly which ruled the portion of state law that set medical marijuana limits at six mature or 12 immature plants and eight ounces of dried marijuana was unconstitutional.

Measure B, which was approved by voters in June with approximately 52 percent of the vote, set the same limits.

The California Attorney General's Office has asked the California Supreme Court to review the Kelly decision, but the court has not yet responded. It has until Sept. 1 but can extend the deadline another 30 days.

The Mendocino County Counsel's Office asked the Mendocino County Sheriff's Office and the Mendocino County District Attorney's Office to not enforce Measure B until Behnke rules, but the office does not have the authority to extend or enforce that referral.

Arguing for Hanamoto and Laguna on Friday, attorney David Nick asked Behnke to issue a temporary restraining order and an injunction against the county enforcing Measure B's plant limits until the California Supreme Court takes action.

"It seems prudent," Nick said. "The Kelly case has thrown this whole guideline thing into an upheaval."

Nick said he feared police will treat the plant limits as a cap and arrest anyone with more than the limits set by Measure B, ignoring the portion of state law that allows a qualified patient to have as much medical marijuana as his or her doctor recommends.

"It could be very detrimental to individual rights," he said.

"You can still enforce the law without Measure B," Nick said.

Deputy County Counsel Frank Zotter said if Measure B is not upheld Mendocino County would be functioning with no medical marijuana limits.

"In the absence of Measure B, it will be up to every police officer and charging attorney to decide," he said.

Zotter also said he felt it was unlikely that allowing Measure B to take effect would result in a wave of new drug arrests.

"With or without an injunction, there is no one at risk of being arrested tomorrow who is not at risk today," he said.

Behnke said he would take the case under advisement, saying he was looking for more guidance from the Supreme Court. He has 90 days to issue a ruling.

Ukiah Daily Journal (CA)
Ben Brown, The Ukiah Daily Journal
Published: July 26, 2008
Copyright: 2008 Ukiah Daily Journal
Contact: udjrb@pacific.net
Website: http://www.ukiahdailyjournal.com/