65A - RPT - REGARDING MEDICAL MARIJUANA INITIATIVE

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The Santa Ana Medical Cannabis Restriction and Limitation Initiative was signed by at least ten percent (10%) of the votes and has qualified to be included on ballot for the next regular election. (Elections Code §9215.) Fundamental Right of Initiative The courts have described the right to initiative as "one of the most precious rights of our democratic process." (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.) Because the initiative is not a right granted to the people, but rather, is a power "reserved" to them, the courts generally apply a liberal construction to this power. (Rossi v. Brown (1995) 9 Cal.4th 688, 695.) As one court noted, "[i]f doubts can be resolved in favor of the use of this reserve power, courts will preserve it." (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,591.) Absent a clear showing of the Legislature's intent to the contrary, courts will presume that the legislative decisions of a governing body are subject to initiative and referendum. (See, Voters for Responsible Retirement v. Boards of Supervisors (1994) 8 Cal 4th 765, 777.) Courts have traditionally been reluctant to interfere with the right of initiative. This reluctance has been described as either a "judicial policy of liberally construing the power of initiative" or as a "presumption" in favor of the initiative power absent a clear showing of legislative intent to the contrary. (Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4th 714, 718.) Notwithstanding these principles, courts have found initiatives to be invalid in a variety of circumstances, including where the initiative is preempted by state law, either because the subject matter is fully occupied by state law or because the initiative contradicts state law. (Morehart v. County of San Barbara (1994) 7 Cal.4th 725 [merger provisions of local zoning ordinance preempted by Subdivision Map Act].) Additionally, courts have found initiatives to be beyond the power of the electorate where the proposed initiative attempts to control a function expressly delegated to the discretion of the city council by paramount state law. (Committee of Seven Thousand v. Superior Court (1998) 45 Cal.3d 491, 502 [holding certain matters involving local financing of highway construction are delegated exclusively to the local legislative body and, therefore, the electorate may not be exercise the power of initiative on these matters].) Overview of Medical Marijuana Regulation In 1970 Congress adopted the Federal Controlled Substances Act (CSA) which establishes a federal regulatory system designed to fight recreational drug use by making it unlawful to manufacture, distribute, dispense or possess any controlled substance. The CSA designates marijuana as a Schedule I controlled substance, meaning a drug with no currently accepted medical use. As a Schedule I controlled substance, it is a federal criminal offense to manufacture, distribute or possess 5 65A-11