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People v. Mentch (Cal. Supreme Ct. - Nov. 24, 2008)

By Shaun Martin

The California Supreme Court held today that you're not a "primary caregiver" under the Compassionate Use Act merely because you're the one in charge of getting someone's pot. That's giving someone care, to be sure. But it doesn't mean that you're their "primary" caregiver.

Given that "primary caregiver" is defined in the stuate as "the individual . . . who has consistently assumed responsibility for the housing, health, or safety of that person,? this holding isn't all that surprising. Providing weed doesn't necessarily mean that you've undertaken the responsibility for a person's "housing, health, or safety," much less that you've done so on a consistent basis.

That holding is all that the California Supreme Court needed to say to decide this case. But it went further, and unanimously held that not only does a "primary caregiver" under the Compassionate Use Act have to be what we might traditionally call a primary caregiver, but further held that this relationship must also have been commenced at or before the provision of medical marijuana. The Court stated: "[W]e conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."

That ostensible holding (actually, dicta) in #3 is clearly wrong. There may well be caregivers who are true primary caregivers protected by the CUA even though they undertook this status only after the provision of medical marijuana.

Take the following hypothetical. Mary is an occasional pot smoker, and meets Jim, who has cancer and is undergoing chemotherapy. Jim asks Mary for some weed, and Mary agrees, and they smoke pot together around once a month, with Mary initially providing Jim no further services other than the occasional pain-reducing and hunger-enhancing spliff. Plus, at this point, Jim can take care of himself, and does not need a primary caregiver. Six months later, however, Mary and Jim fall in love, Jim's condition takes a turn for the worse, and Mary moves in with him, and for the next year, provides him with every element essential to his survival, including food (Jim can no longer feed himself), shelter (Jim's illness has left him penniless and unable to pay the rent), and all the rest (Jim can no longer clothe, bathe, move, or go to the bathroom by himself). During this period, until Jim's death a year later, Mary continues to provide Jim with medical marijuana.

The California Supreme Court's statement would mean that because Mary provided Jim with marijuana prior to becoming his primary caregiver, she is not immunized by the CUA for the subsequent provision of weed to him during the one-year period prior to his death. After all, as the Court says, "a defendant asserting primary caregiver status must prove at a minimum that he or she [] consistently provided caregiving . . . at or before the time he or she assumed responsibility for assisting with medical marijuana," and Mary can't do that, since she also provided him pot beforehand."

But that's clearly wrong. Even if Mary's not covered by the CUA during the initial six months, during which she's a medical marijuana provider but not a primary caregiver, she's unambiguously covered during the following year, in which she's both.

I understand the Court's sentiment that someone shouldn't be able to retroactively immunize prosecution, but the temporal limits established by the Court go further than that, and destructively (and wrongly) so. Just as a the Court recognizes that a true caregiver may provide marijuana at the outset of the caregiving relationship, so too may a true caregiver initially provide marijuana prior to the onset of this relationship. And the fact that the caregiver did something illegally at the outset does not mean that her subsequent conduct, which is clearly immunized by the CUA, somehow categorically loses protection.

So, in our hypothetical, Jim does not have to ditch Mary and fall in love with someone else as the only way to permissibly obtain medical marijuana. She's his primary caregiver. She can legally give him pot.

I'm all for making broad -- and even potentially unnecessary -- holdings sometimes. But on occasion, when a particular statement is unnecessary to the resolution of the case before it, the Court errs, and fails to consider accurately the implications of its holding. In my view, this is clearly one of those times.

Full post as published by California Appellate Report on November 24, 2008 (boomark / email).