MAUREEN CAVANAUGH (Host): San Diego's juvenile curfew takes a hit from a state appeals court, and federal anti-discrimination law enters the brave new world of genetic information. Those are just two of the topics we'll be covering today on our monthly Legal Update. First of all, I’d like to welcome back Dan Eaton, These Days legal analyst. It’s good to see you, Dan.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen. How are you?
CAVANAUGH: I’m doing well…
EATON: Good.
CAVANAUGH: …thank you. Well, now before we get to the curfew and genetics, Dan, just a couple of weeks ago the California Supreme Court issued a ruling on the state legislature's attempt to fiddle around with the medical marijuana law. You first told us about this case last fall, before the Supreme Court heard oral arguments so remind us what it’s all about.
EATON: Yeah, this is a very interesting case, actually. The case name is People versus Kelly, and what happened in that case was Mr. Kelly, who was charged, was not satisfied with his treatment for hepatitis C and other ailments so he saw his doctor and his doctor prescribed medical marijuana for his treatment for pain but did not specify a specific amount, and that’s where the trouble began. Mr. Kelly wasn’t really happy with the prices charged by a marijuana dispensary so he started growing his own. A neighbor tipped off the police and the police ended up finding quite a bit of marijuana in Mr. Kelly’s home, so it found about 12 ounces of dried marijuana. Ultimately, he was charged with possession of more than 28.5 grams, meaning an ounce, of marijuana. Now, the police also found the doctor’s recommendation, which, in fact, was posted on Mr. Kelly’s garage door but the doctor’s recommendation did not specify how much marijuana he could be allowed to have and, therefore, it ran afoul of the legislatively passed 2003 Medical Marijuana Program Act.
CAVANAUGH: Well, that’s my question, though, I mean, we had the Compassionate Use Act passed by voters in 1996…
EATON: Right.
CAVANAUGH: …so why was Mr. Kelly charged at all? What is this additional thing that you just talked about?
EATON: Well, he had the same quizzical look that you have on your face, actually. Maureen, what happened was that the legislature passed this law, quote, to clarify, closed quote, the Voter Passed Initiative because the Voter Passed Initiative didn’t specify any kinds of amount. What it – what the Voter – what the legislature tried to do was said, look, you can do that, you can have more than a particular amount, 8 ounces of dried marijuana plus 6 mature or 12 immature marijuana plants, that was the limit, if the patient or caregiver, quote, has a doctor’s recommendation that this quantity does not meet the patient’s needs, closed quote. In which case, the patient may possess, and I’m reading now, quote, an amount of marijuana consistent with the patient’s need. The prosecution in Mr. Kelly’s case argued that, look, he should be convicted because he had more than 8 ounces of dried marijuana and his doctor’s recommendation did not say he needed more than that quantity.
CAVANAUGH: Well, what was the issue the California Supreme Court resolved in its ruling last time?
EATON: Well, it was the very issue that you mentioned with your last question, which was whether the legislature could legally pass this medical marijuana and therefore amend a Voter Passed Initiative.
CAVANAUGH: Ahh…
EATON: Look, the California Constitution, Article II, Section II, places strict limits on what the legislature can do once the voters speak on an initiative. It says, look, you really cannot amend that legislatively. You can propose amendments and that came later, but you cannot amend it yourself. So the question was whether this was an amendment of the Voter Passed Initiative or whether this was the kind of lower grade revision that passed constitutional muster.
CAVANAUGH: And what did the Supreme Court rule?
EATON: It said no, it was an amendment. You amended this. In fact, what the Voter Passed Initiative said was that you can possess or cultivate marijuana, quote, for the personal medical purposes of the patient and upon the written oral recommendation or approval of a physician, closed quote, nothing about set limits here. And the California Supreme Court said, look, by setting these limits in this law that you just passed, you have amended the Voter Passed Initiative and that the California Constitution does not allow. So that part of the law anyway, the medical marijuana program, had to be struck down.
CAVANAUGH: So in their reading of the California Constitution, the California Supreme Court couldn’t do anything else but did it give any indication of how it feels about that restriction imposed by the Constitution about the ability of the legislature to revise an initiative?
EATON: Maureen, this was a unanimous opinion by the California Supreme Court authored by Chief Justice, and the answer to your question is, yes, they did. They are obviously very unhappy by the severe restrictions in California the Constitution places on the legislature’s ability even to correct mistakes in the initiatives that are passed. The California Supreme Court said – devoted over a quarter of its 54 page opinion to lamenting, quote, the closely circumscribed limits, closed quote, on the legislature’s power to revise properly passed initiative, and even pointed out how out of step California is with other states that have the initiative process. And I’d just like to read quickly from this part of the opinion. It said, numerous, quote, commissions and commentators over many, many years that have urged the California legislature should have the same authority possessed by legislatures of all other states to directly amend an initiative statute in order to correct errors, clarify applications or simply make alterations that have been proved by experience to be warranted. And yet as demonstrated by history and case law that the court cited, quote, the flexibility to make desirable or even necessary adjustments to the initiative statute long have been and remain foreclosed by the California Constitution. Therefore, a Chief Justice George, writing for a unanimous court, said the court was, quote, compelled to conclude, closed quote, that the legislature’s quantity limitations were unconstitutional.
CAVANAUGH: It sounds as if it twisted their arms to do that.
EATON: Well, that’s right.
CAVANAUGH: Was any of this legislation upheld by the court?
EATON: It was. The California Court of Appeal got rid of the entire law and said, no, that part of the medical marijuana program that allowed for voluntary registration and, therefore, you get an ID card that protects against arrest…
CAVANAUGH: Ah, yes.
EATON: …for the possession could still stand because the voters didn’t talk about arrest. They only said it was defense if you are actually charged with a crime. So that part of it could stand.
CAVANAUGH: Now, did the court make any mention of what has turned out to be a dramatic shift that happened last fall in federal enforcement policy including California, in 14 states that allow at least some use of medical marijuana.
EATON: Yeah, you’re talking about U.S. Attorney General’s…
CAVANAUGH: Right.
EATON: …October…
CAVANAUGH: Right.
EATON: …19th announcement that they weren’t going to prosecute in states that have medical marijuana. And the California Supreme Court said, yes, we acknowledge that policy but, and I’m quoting, they said in a footnote, quote, although this policy change may give physicians somewhat increased confidence in their ability lawfully to recommend the use of marijuana for medical treatment, it is clear that there has been no substantive—and the court emphasized that word—change in the federal law. So, therefore, yes, that is interesting and it’s a backdrop but we still have to confront whether this particular change by the legislature could stand constitutionally.
CAVANAUGH: Jan – Dan, I’m sorry, let’s move to a case closer to home, if I – if we can, the branch of the state Court of Appeal that resolves appeals from San Diego…
EATON: Right.
CAVANAUGH: …trial courts ruled San Diego’s curfew ordinance was unconstitutional. Tell us about the local ordinance that the Court of Appeal apparently has invalidated.
EATON: Well, this just happened last week and it was a day of liberation for people who are under the age of…
CAVANAUGH: Teenagers, yeah.
EATON: …of 18. Well, what happened was there was a young woman back in May of 2008 who was out and about at 1:00 a.m. trying to beat her parents home and she was speeding. She was stopped. When she was asked why she was out at that hour, 1:00 a.m., she said she was trying to arrive home before her parents. Well, the City of San Diego ordinance, Municipal Code Section 58.0101 says, look, if you’re under 18, with certain exceptions, you cannot be out in public without a parent or guardian, and the exceptions are contained in 58.0102A. The California Court of Appeal had to decide whether that was an unconstitutional restriction on minors’ right to travel and free speech and association as well.
CAVANAUGH: Well, I’m sorry, so this woman, this young girl, challenged the law and she challenged it because…?
EATON: She did, she challenged the law even though she only got six months probation…
CAVANAUGH: Right.
EATON: …actually from the court, and she challenged the law because she claimed it was a restriction of her rights under the federal and California Constitution of her right to free intrastate travel, meaning within the state—she was caught on I-8, as a matter of fact—intrastate travel and her right to freedom of speech and association. What does that mean? Her right to be out and about and so forth during these curfew hours of between 10:00 p.m. and 6:00 a.m. She complained, look, Maureen, that the fact is that this law, even though it has a lot of exceptions, including an exception for being out for exercise of First Amendment activities, and if you’re out at a school or a school authorized recreational activity and so on, it didn’t have an exception for coming to or going from home or another authorized place and, therefore, it placed restrictions on her ability to associate and her ability to travel. And that was unconstitutional, she said.
CAVANAUGH: Why does the City of San Diego, why do they argue they need this curfew law?
EATON: Well, there are two reasons, really. There are two substantive policies that they are trying to address. One, of course, is to keep juvenile crime down and the other, of course, is to prevent juvenile victimization. Look, nobody contends those are not very substantive and important policies but under the constitutional standard that the Court of Appeal applied, which is called Intermediate Scrutiny, they said, look, you’ve got to have a pretty close fit between what you are trying to accomplish and the way you are trying to accomplish it. And that’s what the Court of Appeal had to decide in deciding whether this particular ordinance as it was crafted was an unconstitutional burden on teenagers’ or minors’ rights.
CAVANAUGH: And so this part of the curfew law has been struck down. Does that mean the state and federal Constitution prohibits San Diego from having any curfew law?
EATON: No, what the Court of Appeal said is they agreed with the argument that, quote, the ordinance contains no going to or coming home from exception that would permit a minor safely to pass from one exempt location to another, which circumscribes a minor’s ability to attend activities like an evening study group or other events. Thus, the ordinance sweeps within its ambit an entirely benign or even laudable conduct and the people offered no articulation of how stopping, circumscribing, such benign conduct directly and materially furthers the underlying governmental interest that I just said.
CAVANAUGH: I see.
EATON: But the Court of Appeal did not say you can’t have any curfew ordinance. So don’t get too excited here. What it – what the Court of Appeals made clear was that, quote, a more narrowly tailored curfew ordinance, closed quote, would pass constitutional muster. At the very least if the City of San Diego wants to amend it, they’ve got to have an ordinance that allows for the travel between exempt activities. But, of course, courts don’t tell the legislatures how to do their jobs, or the city council, they just say, look, it’s not out of the question that you could have a constitutionally acceptable curfew ordinance, this one just isn’t it.
CAVANAUGH: So as we speak right now, there’s no curfew ordinance in San Diego, is that right?
EATON: Well, I – I’m not – just hoping a lot of people under the age of 18 are not listening to this particular show. Get in school. No, the short answer is, yeah, that’s right at this point. But, of course, there are other ways of stopping juvenile crime and juvenile victimization. And I expect that you can expect a pretty speedy response from the City of San Diego to try again to make this constitutional.
CAVANAUGH: Well, now we move to this very interesting aspect, this new federal law named GINA, I guess it is.
EATON: GINA, yes.
CAVANAUGH: It was enacted in 2008, it’s just begun – went into effect in November of last year. It places restrictions on how employers may use genetic information of applicants and employees. It sounds like something that you would see in some sort of futuristic movie. What can you tell us about this law?
EATON: Yeah, it’s actually an important law that sort of anticipated and saw, wait, there’s a lot of technology going on and this is kind of scary and in the wrong hands it can be misused. What GINA does, the Genetic Information Nondiscrimination Act, which went into effect as to employers of 15 or more people, on November 21st, right around Thanksgiving, is that it says, look, employers who qualify cannot use genetic information to make employment decisions whether with respect to hiring or with respect to promotion or firing and so on. So what is genetic information? And that’s the question.
CAVANAUGH: Right, and how, indeed, would genetic information factor into hiring or firing?
EATON: Well, genetic – let’s first be clear on what genetic information is. Genetic information could be a predisposition in your family tree about exposure to disease. Maybe an employer doesn’t want to deal with the health costs that are associated with that and so on. And they could say, look, I don’t want to hire someone like that. That’s how it could factor. And how do you get that information? Well, you could get it, for example, by searching the web and so on, but the fact is that GINA has these exceptions that say, look, if you acquire this information inadvertently or you’re not looking for it but just happen – you happen to overhear it, for example, at the watercooler about a family history, that’s not unlawful because the law actually proscribes not only the use of it, Maureen, but also the acquisition of it but the law also says, as a matter of exception, if that information is acquired inadvertently, as long as it’s not used to make any kind of decisions, then that doesn’t run afoul of the law. The law also requires employers to take certain steps to preserve the confidentiality of this very, very private information that technology is making increasingly available.
CAVANAUGH: This law almost sounds as if it was passed to address a future problem. Have there been any cases brought under this? I know it’s brand new.
EATON: It is brand new. And, in fact, no, there have not been any cases brought under GINA. I actually did an electronic search in an electronic database after the Super Bowl on Sunday night for the words ‘genetic information nondiscrimination act’ and came up empty handed. But you can bet in the coming months, in the years ahead, this will be applied and people are going to be looking at this very, very closely to help us avoid this brave new world that Congress obviously saw coming in real time.
CAVANAUGH: Dan, thank you very much.
EATON: Thank you, Maureen.
CAVANAUGH: Make sure you get home by ten tonight.
EATON: I’m going to make sure. Yeah, don’t want to be out there.
CAVANAUGH: Dan Eaton is These Days Legal Analyst. If you’d like to comment about anything you hear on KPBS, go to KPBS.org/thesedays. Coming up, the joys and challenges of living downtown, that’s as These Days continues here on KPBS.
