COUNTY OF SAN DIEGO, Plaintiff and Appellant, v. SAN DIEGO NORML et al., Defendants
and Respondents; WENDY CHRISTAKES et al., Interveners and Respondents. COUNTY OF
SAN BERNARDINO et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al.,
Defendants and Respondents; WENDY CHRISTAKES et al., Interveners and Respondents.
D050333
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
165 Cal. App. 4th 798; 81 Cal. Rptr. 3d 461
July 31, 2008, Filed
SUBSEQUENT HISTORY: Later proceeding at San Diego, County of v.
San Diego Norml/(Christakes) (Cal., Sept. 26, 2008)
Review denied by San Diego, County of v. San Diego Norml/(Christakes) (Cal., Oct.
16, 2008)
US Supreme Court certiorari denied by San Diego County v. San Diego NORML, ___ U.S. ___, 129 S. Ct. 2380, 173 L. Ed. 2d 1293 (2009)
PRIOR HISTORY: Superior Court of San Diego County, Nos. GIC860665,
GIC861051, William R. Nevitt, Jr., Judge.
SUMMARY:
CALIFORNIA OFFICIAL REPORTS SUMMARY In an action in which counties argued that the
Medical Marijuana Program Act (MMP) (Health & Saf. Code, §§ 11362.7-11362.9)
was invalid under preemption principles, the trial court concluded that the MMP
and the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) were not
preempted by the federal Controlled Substances Act (21 U.S.C. §§ 801-904) and that
the MMP was not invalid under the California Constitution. (Superior Court of San
Diego County, Nos. GIC860665 and GIC861051, William R. Nevitt, Jr., Judge.)
In an action in which counties argued that the Medical Marijuana Program Act (MMP)
(Health & Saf. Code, §§ 11362.7-11362.9) was invalid under preemption principles,
the trial court concluded that the MMP and the Compassionate Use Act of 1996 (Health
& Saf. Code, § 11362.5) were not preempted by the federal Controlled Substances
Act (21 U.S.C. §§ 801-904) and that the MMP was not invalid under the California
Constitution. (Superior Court of San Diego County, Nos. GIC860665 and GIC861051,
William R. Nevitt, Jr., Judge.)
The Court of Appeal affirmed the judgment. The court determined that the counties
had standing to challenge only those limited provisions of the Medical Marijuana
Program Act (MMP) that impose specific obligations on the counties, such as the
identification card provisions (Health & Saf. Code, § 11362.71 et seq.), and
could not broadly attack collateral provisions of California's laws that impose
no obligation on or inflict any particularized injury to the counties. Because Congress
provided that the Controlled Substances Act (CSA) (21 U.S.C. §§ 801-904) preempted
only laws positively conflicting with the CSA so that the two sets of laws could
not consistently stand together, and omitted any reference to an intent to preempt
laws posing an obstacle to the CSA, the court interpreted 21 U.S.C. § 903 as preempting
only those state laws that positively conflict with the CSA so that simultaneous
compliance with both sets of laws is impossible. Because the CSA law does not compel
the states to impose criminal penalties for marijuana possession, the court concluded
that the requirement that counties issue cards identifying those against whom California
has opted not to impose criminal penalties does not positively conflict with the
CSA. The fact that California has decided to exempt the bearer of an identification
card from arrest by state law enforcement for state law violations does not invalidate
the [*799] identification laws under obstacle preemption. Although
the legislation that enacted the MMP added statutes regarding California's treatment
of those who use medical marijuana or who aid such users, it did not add statutes
or standards to the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code,
§ 11362.5). Because the MMP's identification card program has no impact on the protections
provided by the CUA, those provisions are not invalidated by Cal. Const., art. II,
§ 10, subd. (c). (Opinion by McDonald, Acting P. J., with O'Rourke and Irion, JJ.,
concurring.)
HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Drugs and Narcotics § 2--Offenses--Possession--Exemption from Sanctions.--In
California, marijuana is classified as a schedule I controlled substance (Health
& Saf. Code, § 11054, subd. (d)(13)), and its possession is generally prohibited.
However, when California voters adopted the Compassionate Use Act of 1996 (Health
& Saf. Code, § 11362.5), California adopted an exemption from state law sanctions
for medical users of marijuana.
(2) Drugs and Narcotics § 2--Offenses--Possession--Exemption from Sanctions.--The
Legislature enacted the Medical Marijuana Program Act (MMP) (Health & Saf. Code,
§§ 11362.7-11362.9) to address issues not included in the Compassionate Use Act
of 1996 (Health & Saf. Code, § 11362.5). Among the MMP's purposes was to facilitate
the prompt identification of qualified patients and their designated primary caregivers
in order to avoid unnecessary arrest and prosecution of these individuals and provide
needed guidance to law enforcement officers. To that end, the MMP included provisions
establishing a voluntary program for the issuance of identification cards to persons
qualified to claim the exemptions provided under California's medical marijuana
laws (Health & Saf. Code, §§ 11362.7, subd. (f), 11362.71). Participation in
the identification card program, although not mandatory, provides a significant
benefit to its participants: they are not subject to arrest for violating California's
laws relating to the possession, transportation, delivery or cultivation of marijuana,
provided they meet the conditions outlined in the MMP (Health & Saf. Code, §
11362.71, subd. (e)).
(3) Drugs and Narcotics § 2--Offenses--Possession--Exemption from Sanctions.--Although
the bulk of the provisions of California's Medical Marijuana Program Act (MMP) (Health
& Saf. Code, §§ 11362.7-11362.9) confer no rights and impose no duties on counties,
one set of provisions under the MMP--the program for issuing identification cards
to qualified patients and primary caregivers--does impose certain obligations on
counties (Health & Saf. Code, § 11362.71 et seq.). [*800] Under
the identification card program, the California Department of Health Services is
required to establish and maintain a program under which qualified applicants may
voluntarily apply for a California identification card identifying them as qualified
for the exemptions; the program is also to provide law enforcement a 24-hour a day
center to verify the validity of the state identification card (Health & Saf.
Code, § 11362.71, subd. (a)). The MMP requires counties to provide applications
to applicants, to receive and process the applications, verify the accuracy of the
information contained on the applications, approve the applications of persons meeting
the state qualifications and issue the state identification cards to qualified persons,
and maintain the records of the program (Health & Saf. Code, §§ 11362.71-11362.755).
The identification card program is voluntary and a person need not obtain an identification
card to be entitled to the exemptions provided by state law (Health & Saf. Code,
§ 11362.765, subd. (b)).
(4) Drugs and Narcotics § 2--Offenses--Possession--Federal Law--Schedule I Drugs--Marijuana--Medicinal
Purposes.--The federal Controlled Substances Act (CSA) (21 U.S.C. §§ 801-904) provides
it is unlawful for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly, or pursuant to a valid prescription
or order, from a practitioner, while acting in the course of his professional practice.
21 U.S.C. § 844(a). The exception regarding a doctor's prescription or order does
not apply to any controlled substance Congress has classified as a schedule I drug,
21 U.S.C. § 812(c), including marijuana. Schedule I drugs are so categorized because
they have (1) a high potential for abuse, (2) no currently accepted medical use
in treatment in the United States, and (3) a lack of accepted safety for use under
medical supervision. 21 U.S.C. § 812(b)(1). Possession of marijuana for personal
use is a federal misdemeanor. 21 U.S.C. § 844a(a). The legislative intent of Congress
to preclude the use of marijuana for medicinal purposes is reflected in the statutory
scheme of the CSA: By classifying marijuana as a schedule I drug, as opposed to
listing it on a lesser schedule, the manufacture, distribution, or possession of
marijuana became a criminal offense, with the sole exception being use of the drug
as part of a Food and Drug Administration preapproved research study. Although the
use of marijuana for medical purposes has found growing acceptance among the states,
marijuana remains generally prohibited under the CSA.
(5) Declaratory Relief § 7--Actual Controversy--Ripeness and Standing.--A declaratory
relief action requires an actual controversy relating to the legal rights and duties
of the respective parties. Code Civ. Proc., [*801] § 1060. Courts
will decline to resolve lawsuits that do not present a justiciable controversy,
and justiciability involves the intertwined criteria of ripeness and standing.
(6) Parties § 1.2--Standing--Justiciable Controversy--Elements.--As a general principle,
standing to invoke the judicial process requires an actual justiciable controversy
as to which the complainant has a real interest in the ultimate adjudication because
he or she has either suffered or is about to suffer an injury of sufficient magnitude
reasonably to assure that all of the relevant facts and issues will be adequately
presented to the adjudicator. To have standing, a party must be beneficially interested
in the controversy; that is, he or she must have some special interest to be served
or some particular right to be preserved or protected over and above the interest
held in common with the public at large. The party must be able to demonstrate that
he or she has some such beneficial interest that is concrete and actual, and not
conjectural or hypothetical.
(7) Constitutional Law § 21--Constitutionality of Legislation--Raising Question--Standing--Injury
to Party.--When a party asserts a statute is unconstitutional, standing is not established
merely because the party has been impacted by the statutory scheme to which the
assertedly unconstitutional statute belongs. Instead, the courts have stated that
at a minimum, standing means a party must show that he or she personally has suffered
some actual or threatened injury as a result of the putatively illegal conduct of
the defendant. The courts will not give their consideration to questions as to the
constitutionality of a statute unless such consideration is necessary to the determination
of a real and vital controversy between the litigants in the particular case before
it. It is incumbent upon a party to an action or proceeding who assails a law invoked
in the course thereof to show that the provisions of the statute thus assailed are
applicable to him or her and that he or she is injuriously affected thereby. A party
does not have standing to raise hypothetical constitutional infirmities of a statute
when the statute, as applied to the party, does not occasion any injury to the party.
(8) Constitutional Law § 21--Constitutionality of Legislation--Raising Question--Standing--Local
Government Entity--Ministerial Duty to Enforce Statute.--As a general rule, a local
governmental entity charged with the ministerial duty of enforcing a statute generally
does not have the authority, in the absence of a judicial determination of unconstitutionality,
to refuse to enforce the statute on the basis of the entity's view that it is unconstitutional.
However, under some limited circumstances, a public entity threatened with injury
by the allegedly [*802] unconstitutional operation of an enactment
may have standing to raise the challenge in the courts.
(9) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Federal Preemption.--The supremacy clause
of U.S. Const., art. VI, grants Congress the power to preempt state law. State law
that conflicts with a federal statute is without effect. Consideration of issues
arising under the supremacy clause starts with the assumption that the historic
police powers of the states are not to be superseded by federal act unless that
is the clear and manifest purpose of Congress. Thus, the purpose of Congress is
the ultimate touchstone of preemption analysis.
(10) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Federal Preemption.--The California Supreme
Court has identified four species of federal preemption: express, conflict, obstacle,
and field. First, express preemption arises when Congress defines explicitly the
extent to which its enactments preempt state law. Preemption fundamentally is a
question of congressional intent, and when Congress has made its intent known through
explicit statutory language, the courts' task is an easy one. Second, conflict preemption
will be found when simultaneous compliance with both state and federal directives
is impossible. Third, obstacle preemption arises when under the circumstances of
a particular case, the challenged state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress. Finally, field preemption,
i.e., Congress's intent to preempt all state law in a particular area, applies where
the scheme of federal regulation is sufficiently comprehensive to make reasonable
the inference that Congress left no room for supplementary state regulation. When
Congress has expressly described the scope of the state laws it intended to preempt,
the courts infer Congress intended to preempt no more than that absent sound contrary
evidence. Conflict preemption will be found when simultaneous compliance with both
state and federal directives is impossible. Congress has the power to permit state
laws that, although posing some obstacle to congressional goals, may be adhered
to without requiring a person affirmatively to violate federal laws.
(11) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Federal Preemption--Regulation of Controlled
Substances.--The majority of the United States Supreme Court has concluded the preemption
clause of the federal Controlled Substances Act (21 U.S.C. [*803]
§§ 801-904) shows that Congress explicitly contemplated a role for the states in
regulating controlled substances, including permitting the states latitude to continue
their historic role of regulating medical practices.
(12) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Obstacle Preemption.--Obstacle preemption
will invalidate a state law when under the circumstances of a particular case, the
challenged state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress. Under obstacle preemption, whether
a state law presents a sufficient obstacle is a matter of judgment, to be informed
by examining the federal statute as a whole and identifying its purpose and intended
effects: For when the question is whether a federal act overrides a state law, the
entire scheme of the statute must be considered and that which needs must be implied
is of no less force than that which is expressed. If the purpose of the act cannot
otherwise be accomplished--if its operation within its chosen field else must be
frustrated and its provisions be refused their natural effect--the state law must
yield to the regulation of Congress within the sphere of its delegated power.
(13) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Federal Preemption--Scope--Determination
by Court.--When Congress legislates in a field which the states have traditionally
occupied, a reviewing court starts with the assumption that the historic police
powers of the states were not to be superseded by the federal act unless that was
the clear and manifest purpose of Congress. A reviewing court's evaluation of the
scope of Congress's intended preemption examines the text of the federal law as
the best indicator of Congress's intent and, where that law contains an express
preemption clause, the court's task of statutory construction must in the first
instance focus on the plain wording of the clause, which necessarily contains the
best evidence of Congress's preemptive intent. Because in these cases, the court's
task is to identify the domain expressly preempted an express definition of the
preemptive reach of a statute supports a reasonable inference that Congress did
not intend to preempt other matters.
(14) Constitutional Law § 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Resolution--Federal Preemption--Scope--Determination
by Court--Medical Practices and Drug Possession.--Because California's Medical Marijuana
Program Act (Health & Saf. Code, §§ 11362.7-11362.9) and Compassionate Use Act
of 1996 (Health & Saf. Code, § 11362.5) [*804] address fields
historically occupied by the states--medical practices and state criminal sanctions
for drug possession--the presumption against preemption informs a reviewing court's
resolution of the scope to which Congress intended the federal Controlled Substances
Act (21 U.S.C. §§ 801-904) to supplant state laws, and cautions the court to narrowly
interpret the scope of Congress's intended invalidation of state law.
(15) Constitutional Law § 34--Distribution of Governmental Powers--Federal Preemption--Positive
Conflict.--The language of 21 U.S.C. § 903 expressly limits preemption to only those
state laws in which there is a positive conflict between the federal and state law
so that the two cannot consistently stand together. Because § 903 preserves state
laws except where there exists such a positive conflict that the two laws cannot
consistently stand together, the implied conflict analysis of obstacle preemption
appears beyond the intended scope of § 903.
(16) Statutes § 30--Construction--Language--Plain Meaning Rule--Words and Phrases.--When
construing a statute, the courts seek to attribute significance to every word and
phrase in accordance with their usual and ordinary meaning.
(17) Constitutional Law § 34--Distribution of Governmental Powers--Between Federal
and State Governments--Express Preemption Clause--Positive and Obstacle Conflict--Expression
of Congressional Intent.--When Congress has intended to craft an express preemption
clause signifying that both positive and obstacle conflict preemption will invalidate
state laws, Congress has so structured the express preemption clause. (21 U.S.C.
350e(e)(1).) Where statutes involving similar issues contain language demonstrating
the Legislature knows how to express its intent, the omission of such provision
from a similar statute concerning a related subject is significant to show that
a different legislative intent existed with reference to the different statutes.
(18) Constitutional Law § 34--Distribution of Governmental Powers--Between Federal
and State Governments--Federal Preemption--Laws Positively Conflicting with Federal
Controlled Substances Act.--Because Congress provided that the federal Controlled
Substances Act (CSA) (21 U.S.C. §§ 801-904) preempted only laws positively conflicting
with the CSA so that the two sets of laws could not consistently stand together,
and omitted any reference to an intent to preempt laws posing an obstacle to the
CSA, 21 U.S.C. § 903 is interpreted as preempting only those state laws that positively
conflict with the CSA so that simultaneous compliance with both sets of laws is
impossible. [*805]
(19) Constitutional Law § 34--Distribution of Governmental Powers--Between Federal
and State Governments--Federal Preemption--Determining Positive Conflicts with Federal
Controlled Substances Act--Identification Cards Under Medical Marijuana Program
Act.--The applications for the identification card under California's Medical Marijuana
Program Act (Health & Saf. Code, §§ 11362.7-11362.9) expressly state the card
will not insulate the bearer from federal laws, and the card itself does not imply
the holder is immune from prosecution for federal offenses; instead, the card merely
identifies those persons California has elected to exempt from California's sanctions.
Because the federal Controlled Substances Act (CSA) (21 U.S.C. §§ 801-904) does
not compel the states to impose criminal penalties for marijuana possession, the
requirement that counties issue cards identifying those against whom California
has opted not to impose criminal penalties does not positively conflict with the
CSA. Accordingly, a court rejected the claim of counties that positive conflict
preemption invalidated the identification laws because the counties' compliance
with those laws could consistently stand together with adherence to the provisions
of the CSA.
[Cal. Forms of Pleading and Practice (2008) ch. 126A, Constitutional Law, § 126A.23;
Erwin et al., Cal. Criminal Defense Practice (2008) ch. 145, § 145.01.]
(20) Constitutional Law § 34--Distribution of Governmental Powers--Between Federal
and State Governments--Obstacle Preemption--Determining Conflicts with Federal Controlled
Substances Act--Identification Card Provisions of Medical Marijuana Program Act.--Although
21 U.S.C. § 903 signifies Congress's intent to maintain the power of states to elect
to serve as a laboratory in the trial of novel social and economic experiments without
risk to the rest of the country by preserving all state laws that do not positively
conflict with the federal Controlled Substances Act (CSA) (21 U.S.C. §§ 801-904),
the identification laws of California's Medical Marijuana Program Act (Health &
Saf. Code, §§ 11362.7-11362.9) are not preempted even if Congress had intended to
preempt laws posing an obstacle to the CSA. Although state laws may be preempted
under obstacle preemption when the law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress, not every state law
posing some de minimus impediment will be preempted. To the contrary, displacement
will occur only where a significant conflict exists between an identifiable federal
policy or interest and the operation of state law, or the application of state law
would frustrate specific objectives. When Congress has legislated in a field that
the states have traditionally occupied, rather than in an area of unique federal
concern, obstacle [*806] preemption requires an even sharper conflict
with federal policy before the state statute will be invalidated.
(21) Constitutional Law § 34--Distribution of Governmental Powers--Between Federal
and State Governments--Obstacle Preemption--Determining Conflicts with Federal Controlled
Substances Act--Identification Card Provisions of Medical Marijuana Program Act.--The
identification card laws of the Marijuana Program Act (MMP) (Health & Saf. Code,
§§ 11362.7-11362.9) do not pose a significant impediment to specific federal objectives
embodied in the Controlled Substances Act (CSA) (21 U.S.C. §§ 801-904). The purpose
of the CSA is to combat recreational drug use, not to regulate a state's medical
practices. The identification card laws merely provide a mechanism allowing qualified
California citizens, if they so elect, to obtain a form of identification that informs
state law enforcement officers and others that they are medically exempted from
the state's criminal sanctions for marijuana possession and use. Although California's
decision to enact statutory exemptions from state criminal prosecution for such
persons arguably undermines the goals of or is inconsistent with the CSA, any alleged
obstacle to the federal goals is presented by those California statutes that create
the exemptions, not by the statutes providing a system for rapidly identifying exempt
individuals. The identification card statutes impose no significant added obstacle
to the purposes of the CSA not otherwise inherent in the provisions of the exemptions
that counties do not have standing to challenge, and, therefore, the limited provisions
of the MMP that counties may challenge are not preempted by principles of obstacle
preemption.
(22) Constitutional Law § 32--Distribution of Governmental Powers--Between Federal
and State Governments--Powers of Federal Government--Enforcement of Federal Laws.--Congress
does not have the authority to compel the states to direct their law enforcement
personnel to enforce federal laws. The fact that California has decided to exempt
the bearer of an identification card from arrest by state law enforcement for state
law violations does not invalidate the identification laws under obstacle preemption.
(23) Constitutional Law § 25--Constitutionality of Legislation--Rules of Interpretation--Presumption
of Constitutionality--Amendment of Initiative.--Although legislative acts are entitled
to a strong presumption of constitutionality, the Legislature cannot amend an initiative,
including the California Compassionate Use Act of 1996 (Health & Saf. Code,
§ 11362.5) unless the initiative grants the Legislature authority to do so.
[*807]
(24) Initiative and Referendum § 3--Constitutional Provisions--Proscription Against
Amendment or Repeal Without Voter Approval.--The proscription embodied in Cal. Const.,
art. II, § 10, subd. (c), is designed to protect the People's initiative powers
by precluding the Legislature from undoing what the People have done, without the
electorate's consent. Legislative enactments related to the subject of an initiative
statute may be allowed when they involve a related but distinct area or relate to
a subject of the initiative that the initiative does not specifically authorize
or prohibit.
(25) Initiative and Referendum § 3--Constitutional Provisions--Proscription Against
Amendment Without Voter Approval--Validity of Identification Card Provisions of
Medical Marijuana Program Act--Effect on Compassionate Use Act.--The identification
card provisions, Health & Saf. Code, § 11362.71 et seq., of California's Medical
Marijuana Program Act (MMP) (Health & Saf. Code, §§ 11362.7-11362.9) do not
improperly amend the provisions of the California Compassionate Use Act of 1996
(Health & Saf. Code, § 11362.5). The identification card system of the MMP,
by specifying participation in that system is voluntary and a person may claim the
protections of the CUA without possessing a card, Health & Saf. Code, § 11362.71,
subd. (f), demonstrates the MMP's identification card system is a discrete set of
laws designed to confer distinct protections under California law that the CUA does
not provide without limiting the protections the CUA does provide. Although the
legislation that enacted the MMP added statutes regarding California's treatment
of those who use medical marijuana or who aid such users, it did not add statutes
or standards to the CUA. Instead, the MMP's identification card is a part of a separate
legislative scheme providing separate protections for persons engaged in the medical
marijuana programs, and the MMP carefully declared that the protections provided
by the CUA were preserved without the necessity of complying with the identification
card provisions. Health & Saf. Code, § 11362.71, subd. (f). The MMP, in effect,
amended provisions of the Health and Safety Code regarding regulation of drugs adopted
by the Legislature, not provisions of the CUA. Because the MMP's identification
card program has no impact on the protections provided by the CUA, those provisions
are not invalidated by Cal. Const., art. II, § 10, subd. (c). [*808]
COUNSEL: John J. Sansone, County Counsel, Thomas D. Bunton and
C. Ellen Pilsecker, Deputy County Counsel, for Plaintiff and Appellant County of
San Diego.
Ruth E. Stringer, County Counsel, Alan L. Green, Charles J. Larkin and Dennis Tilton,
Deputy County Counsel, for Plaintiffs and Appellants County of San Bernardino and
Gary Penrod.
American Civil Liberties Union Foundation, Adam B. Wolf, Allen Hopper; ACLU of San
Diego & Imperial Counties and David Blair-Loy for Defendants and Respondents
San Diego NORML, Wo/Men's Alliance for Medical Marijuana and Dr. Stephen O'Brien.
Edmund G. Brown, Jr., Attorney General, Christopher E. Krueger, Assistant Attorney
General, Jonathan K. Renner and Peter A. Krause, Deputy Attorneys General, for Defendants
and Respondents State of California and Sandra Shewry.
Americans for Safe Access and Joseph D. Elford for Interveners and Respondents Wendy
Christakes, Norbert Litzinger, William Britt, Yvonne Westbrook and Americans for
Safe Access.
JUDGES: Opinion by McDonald, Acting P. J., with O'Rourke and Irion,
JJ., concurring.
OPINION BY: McDonald
OPINION
[**467] McDONALD, Acting P. J.--In 2003, the California Legislature
enacted the Medical Marijuana Program Act. (Health & Saf. Code, §§ 11362.7-11362.9;
hereafter MMP.) [Footnote 1] Among other provisions, the MMP imposed on counties
the obligation to implement a program permitting a limited group of persons--those
who qualify for exemption from California's statutes criminalizing certain conduct
with respect to marijuana (the exemptions)--to apply for and obtain an identification
card verifying their exemption.
In this action, plaintiffs County of San Diego (San Diego) and County of San Bernardino
(San Bernardino) contend that, because the federal Controlled Substances Act (21
U.S.C. §§ 801-904; hereafter CSA) prohibits possessing or using marijuana for any
purpose, certain provisions of California's statutory scheme are unconstitutional
under the supremacy clause of the United States Constitution. San Diego and San
Bernardino (together Counties) did not claim below, and do not assert on appeal,
that the exemption from state criminal prosecution for possession or cultivation
of marijuana provided by [*809] California's Compassionate Use
Act of 1996 (§ 11362.5; hereafter CUA) is unconstitutional under the preemption
clause. Instead, Counties argue the MMP is invalid under preemption principles,
arguing the MMP poses an obstacle to the congressional intent embodied in the CSA.
The trial court below rejected Counties' claims, concluding the MMP neither conflicted
with nor posed an obstacle to the CSA. On appeal, Counties assert the trial court
applied an overly narrow test for preemption, and the MMP is preempted as an obstacle
to the CSA. We conclude Counties have standing to challenge only those limited provisions
of the MMP that impose specific obligations on Counties, and may not broadly attack
collateral provisions of California's laws that impose no obligation on or inflict
any particularized [**468] injury to Counties. We further conclude,
as to the limited provisions of the MMP that Counties may challenge, those provisions
do not positively conflict with the CSA, and do not pose any added obstacle to the
purposes of the CSA not inherent in the distinct provisions of the exemptions from
prosecution under California's laws, and therefore those limited provisions of the
MMP are not preempted. We also reject San Bernardino's claim that the identification
card provisions of the MMP are invalid under the California Constitution.
I
THE STATUTORY FRAMEWORK
A. California Law
The CUA
(1) In California, marijuana is classified as a schedule I controlled substance
(see § 11054, subd. (d)(13)), and its possession is generally prohibited. However,
when California voters adopted the CUA, California adopted an exemption from state
law sanctions for medical users of marijuana. The CUA, codified in section 11362.5,
provides:
"(b)(1) The people of the State of California hereby find and declare that
the purposes of the [CUA] are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS,
chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for
which marijuana provides relief. [*810]
"(B) To ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician are not subject
to criminal prosecution or sanction.
"(C) To encourage the federal and state governments to implement a plan to
provide for the safe and affordable distribution of marijuana to all patients in
medical need of marijuana.
"(2) Nothing in this section shall be construed to supersede legislation prohibiting
persons from engaging in conduct that endangers others, nor to condone the diversion
of marijuana for nonmedical purposes.
"(c) Notwithstanding any other provision of law, no physician in this state
shall be punished, or denied any right or privilege, for having recommended marijuana
to a patient for medical purposes.
"(d) Section 11357, relating to the possession of marijuana, and Section 11358,
relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or approval
of a physician.
"(e) For the purposes of this section, 'primary caregiver' means the individual
designated by the person exempted under this section who has consistently assumed
responsibility for the housing, health, or safety of that person."
The MMP
(2) In 2003, the Legislature enacted the MMP to "address issues not included
in the CUA." (People v. Wright (2006) 40 Cal.4th 81, 85 [51 Cal. Rptr. 3d 80,
146 P.3d 531].) Among the MMP's purposes was to " 'facilitate the prompt identification
of qualified patients and their designated primary [**469] caregivers
in order to avoid unnecessary arrest and prosecution of these individuals and provide
needed guidance to law enforcement officers.' " (40 Cal.4th at p. 93.) To that
end, the MMP included provisions establishing a voluntary program for the issuance
of identification cards to persons qualified to claim the exemptions provided under
California's medical marijuana laws. (§§ 11362.7, subd. (f), 11362.71.) Participation
in the identification card program, although not mandatory, provides a significant
benefit to its participants: they are not subject to arrest for violating California's
laws relating to the possession, transportation, delivery or cultivation of marijuana,
provided they meet the conditions outlined in the MMP. (§ 11362.71, subd. (e).)
[*811]
(3) Although the bulk of the provisions of the MMP confer no rights and impose no
duties on counties, [Footnote 2] one set of provisions under the MMP--the program
for issuing identification cards to qualified patients and primary caregivers--does
impose certain obligations on counties. (§ 11362.71 et seq.) Under the identification
card program, the California Department of Health Services is required to establish
and maintain a program under which qualified applicants may voluntarily apply for
a California identification card identifying them as qualified for the exemptions;
the program is also to provide law enforcement a 24-hour a day center to verify
the validity of the state identification card. (§ 11362.71, subd. (a).) The MMP
requires counties to provide applications to applicants, to receive and process
the applications, verify the accuracy of the information contained on the applications,
approve the applications of persons meeting the state qualifications and issue the
state identification cards to qualified persons, and maintain the records of the
program. (§§ 11362.71-11362.755.)
The identification card program is voluntary and a person need not obtain an identification
card to be entitled to the exemptions provided by state law. (§ 11362.765, subd.
(b); People v. Wright, supra, 40 Cal.4th at pp. 93-94 [the MMP applies to both cardholders
and noncardholders].)
B. Federal Law--the CSA
(4) The CSA provides it is "unlawful for any person knowingly or intentionally
to possess a controlled substance unless such substance was obtained directly, or
pursuant to a valid prescription or order, from a practitioner, while acting in
the course of his professional practice ... ." (21 U.S.C. § 844(a).) The exception
regarding a doctor's prescription or order does not apply to any controlled substance
Congress has classified as a schedule I drug (see 21 U.S.C. § 812(c)), including
marijuana. (Gonzales v. Raich (2005) 545 U.S. 1, 14-15 [162 L. Ed. 2d 1, 125 S.
Ct. 2195].) Schedule [**470] I drugs are so categorized because
they have (1) a high potential for abuse, [*812] (2) no currently
accepted medical use in treatment in the United States, and (3) a lack of accepted
safety for use under medical supervision. (21 U.S.C. § 812(b)(1).)
Possession of marijuana for personal use is a federal misdemeanor. (21 U.S.C. §
844a(a).) The legislative intent of Congress to preclude the use of marijuana for
medicinal purposes is reflected in the statutory scheme of the CSA: [Footnote 3]
"By classifying marijuana as a Schedule I drug, as opposed to listing it on
a lesser schedule, the manufacture, distribution, or possession of marijuana became
a criminal offense, with the sole exception being use of the drug as part of a Food
and Drug Administration preapproved research study. [Citations.]" (Gonzales
v. Raich, supra, 545 U.S. at p. 14.)
Although the use of marijuana for medical purposes has found growing acceptance
among the states (Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 643 [noting "Alaska,
Arizona, Colorado, Maine, Nevada, Oregon and Washington ... have followed California
in enacting medical marijuana laws by voter initiative"]), marijuana remains
generally prohibited under the CSA. (Conant, at p. 640; Gonzales v. Raich, supra,
545 U.S. at p. 15, fn. 23 [efforts to reclassify marijuana to permit medicinal uses
have been unsuccessful].)
II
PROCEDURAL BACKGROUND
In 2006 San Diego filed a complaint against the State of California and Sandra Shewry,
in her former capacity as Director of the California Department of Health Services
(together State), as well as the San Diego chapter of the National Organization
for the Reform of Marijuana Laws (NORML). San Diego's complaint alleged it had declined
to comply with its obligations under the MMP and NORML had threatened to file suit
against San Diego for its noncompliance. Accordingly, San Diego sought a judicial
declaration that it was not required to comply with the MMP, arguing the entirety
of the MMP and the CUA (except for § 11362.5, subd. (d)) was preempted by federal
law. San Bernardino filed its suit raising the same preemption claims, and its complaint
was subsequently consolidated with that of San Diego. The County of Merced intervened
in San Diego's action and alleged, as an additional ground for relief, that the
MMP was invalid because it amended the CUA in violation of article II, section 10,
subdivision (c) of the [*813] California Constitution. [Footnote
4] Additional parties, composed of medical marijuana patients and others qualified
for exemptions under the CUA and MMP, also intervened in the action.
State demurred to Counties' complaints, alleging in part that Counties did not have
standing to prosecute the claims, but its demurrer was overruled. The parties subsequently
filed cross-motions for judgment on the pleadings, which were consolidated for hearing
in November 2006. The court ruled the CUA and MMP were not preempted by federal
law and the MMP was not invalid under the California Constitution, [**471]
and entered judgment accordingly. Counties appeal.
III
THE STANDING ISSUE
State argues on appeal that Counties do not have standing to assert the CUA and
MMP are unconstitutional. [Footnote 5] State's argument presents two distinct issues.
The first issue is whether a political subdivision of California, charged with the
ministerial obligation to enforce or carry out state laws, may ever challenge a
state enactment as unconstitutional. Must the entity comply with a state law until
a court has declared the law unconstitutional, or may it instead bring a declaratory
relief action challenging the constitutionality of that law? The second issue, which
assumes a local governmental entity may challenge a state law as unconstitutional,
is the extent of its standing. Does the entity have standing to challenge an entire
statutory scheme--including those aspects of the scheme that impose no obligations
on the entity--or is it limited to challenging only those aspects that impose specific
obligations on or inflict particularized injury to the local governmental entity?
A. General Principles
(5) A declaratory relief action requires an "actual controversy relating to
the legal rights and duties of the respective parties." (Code Civ. Proc., §
1060.) Courts will decline to resolve lawsuits that do not present a justiciable
controversy, and justiciability "involves the intertwined criteria of ripeness
and standing." (California Water & Telephone Co. v. County of Los Angeles
(1967) 253 Cal.App.2d 16, 22 [61 Cal. Rptr. 618].) [*814]
(6) "As a general principle, standing to invoke the judicial process requires
an actual justiciable controversy as to which the complainant has a real interest
in the ultimate adjudication because he or she has either suffered or is about to
suffer an injury of sufficient magnitude reasonably to assure that all of the relevant
facts and issues will be adequately presented to the adjudicator. [Citations.] To
have standing, a party must be beneficially interested in the controversy; that
is, he or she must have 'some special interest to be served or some particular right
to be preserved or protected over and above the interest held in common with the
public at large.' [Quoting Carsten v. Psychology Examining Com. (1980) 27 Cal.3d
793, 796 [166 Cal. Rptr. 844, 614 P.2d 276].] The party must be able to demonstrate
that he or she has some such beneficial interest that is concrete and actual, and
not conjectural or hypothetical." (Holmes v. California Nat. Guard (2001) 90
Cal.App.4th 297, 314-315 [109 Cal. Rptr. 2d 154], italics added.)
(7) When a party asserts a statute is unconstitutional, standing is not established
merely because the party has been impacted by the statutory scheme to which the
assertedly unconstitutional statute belongs. Instead, the courts have stated that
"[a]t a minimum, standing means a party must ' "show that he personally
has suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant ..." ... .' [Quoting Valley Forge College v. Americans
United (1982) 454 U.S. 464, 472 [70 L. Ed. 2d 700, 102 S. Ct. 752].] ... ' "[I]t
is well-settled law that the courts will not give their consideration to questions
as to the constitutionality of a statute unless such consideration [**472]
is necessary to the determination of a real and vital controversy between the litigants
in the particular case before it. It is incumbent upon a party to an action or proceeding
who assails a law invoked in the course thereof to show that the provisions of the
statute thus assailed are applicable to him and that he is injuriously affected
thereby." [Citations.]' [Quoting Worsley v. Municipal Court (1981) 122 Cal.App.3d
409, 418 [176 Cal. Rptr. 324].]" (In re Tania S. (1992) 5 Cal.App.4th 728,
736-737 [7 Cal. Rptr. 2d 60].)
This court's analysis in Tania S. demonstrates that a party does not have standing
to raise hypothetical constitutional infirmities of a statute when the statute,
as applied to the party, does not occasion any injury to the party. In Tania S.,
the appellant's children were declared dependents and removed from his custody when
the court found, under Welfare and Institutions Code section 300, subdivision (b),
that appellant's inability or failure to protect the children created a substantial
risk of serious physical harm to them. (In re Tania S., supra, 5 Cal.App.4th at
pp. 732-733.) The appellant did not challenge the constitutionality of the portion
of section 300, subdivision (b), under which the juvenile court made its jurisdictional
findings, but instead asserted a second aspect of section 300, subdivision (b) (which
cautioned that an allegation of willful failure to provide adequate medical treatment
based [*815] on religious beliefs required a court to give some
deference to the parent's religious practices) improperly created two classes of
parents--those who injure their children out of a religious belief and those who
injure their children for nonreligious reasons--making the entirety of section 300,
subdivision (b), unconstitutional. (In re Tania S., at pp. 735-736.) This court
rejected the appellant's standing to raise the claim because the proceedings were
not based on an allegation he did not provide the children adequate medical treatment
or provided spiritual treatment through prayer. This court concluded that because
the appellant "has not demonstrated he suffered any direct injury resulting
from the assertedly unconstitutional portion of [the statute]," "we do
not determine the substantive merits of [appellant's] claim the challenged portion
of [the statute] is unconstitutional. Such determination will be made only if the
claim is raised by one with standing." (In re Tania S., at pp. 736-737, fn.
omitted.)
B. Limitations on Governmental Entities
Plaintiffs here are local governmental entities that sought in the proceedings below,
and seek in this appeal, a determination that they are not obligated to comply with
their duties under the statutory scheme because the statutory scheme is unconstitutional.
We must evaluate the extent to which a local governmental entity of the state may
attack the constitutionality of the laws it is obligated to administer.
(8) As a general rule, a local governmental entity "charged with the ministerial
duty of enforcing a statute ... generally does not have the authority, in the absence
of a judicial determination of unconstitutionality, to refuse to enforce the statute
on the basis of the [entity's] view that it is unconstitutional." (Lockyer
v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1082 [17 Cal. Rptr.
3d 225, 95 P.3d 459], fn. omitted.) In Lockyer, the court rejected the entity's
argument that because the entity believed certain statutes (limiting marriage to
a union between a man and a woman) were unconstitutional, it could bring the issue
into court by defying state law and issuing licenses to same-sex couples. Lockyer
noted that, although [**473] there may be limited circumstances
in which a public entity might refuse to enforce a statute as a means of bringing
the constitutionality of the statute before a court for judicial resolution, the
exception does not apply when there exists "a clear and readily available means,
other than the officials' wholesale defiance of the applicable statutes, to ensure
that the constitutionality of the current marriage statutes would be decided by
a court." (Id. at p. 1099.) Lockyer noted that if the local officials charged
with the ministerial duty of issuing marriage licenses and registering marriage
certificates believed the state's current marriage statutes are unconstitutional
and should be tested in court, "they could have denied a same-sex couple's
[*816] request for a marriage license and advised the couple to
challenge the denial in superior court. That procedure--a lawsuit brought by a couple
who has been denied a license under existing--is the procedure that was utilized
to challenge the constitutionality of California's antimiscegenation statute ...
. The city cannot plausibly claim that the desire to obtain a judicial ruling on
the constitutional issue justified the wholesale defiance of the applicable statutes
that occurred here." (Lockyer, at pp. 1098-1099, fn. and citation omitted.)
However, under some limited circumstances, a public entity threatened with injury
by the allegedly unconstitutional operation of an enactment may have standing to
raise the challenge in the courts. For example, in County of Los Angeles v. Sasaki
(1994) 23 Cal.App.4th 1442 [29 Cal. Rptr. 2d 103], one enactment (Sen. Bill No.
1135 (1993-1994 Reg. Sess.)) reallocated property tax revenues away from the county
and to school and community college districts, while a second enactment (Sen. Bill
No. 399 (1993-1994 Reg. Sess.)) affected the formulas for determining the amount
of moneys to be applied by the state for the support of school and community college
districts. (23 Cal.App.4th at pp. 1447-1448.) The court concluded the county could
challenge Senate Bill No. 1135's reallocation of funds away from the county. However,
the court concluded the county did not have standing to challenge Senate Bill No.
399, stating: "Without mentioning [Senate Bill No.] 399, the County alleged
in its complaint that the state will use the funds reallocated pursuant to [Senate
Bill No.] 1135 to fulfill its responsibilities for the financial support of schools
as mandated by Proposition 98. On appeal, the County contends the 'State's action'
was invalid because 'it mandated a major shift in the use of local property taxes
for a specific State purpose, to fulfill the State's obligation under Proposition
98 to provide a constitutionally prescribed minimum amount of public education funding
"from state revenues." ' Thus, the County seeks to challenge both [Senate
Bill No.] 1135 ... and [Senate Bill No.] 399 ... . [§] The constitutionality of
[Senate Bill No. 399] is not before us on this appeal. This appeal deals only with
the reallocation of property tax revenues from local governments and special districts
to school and community college districts. The County's concern is with the loss
of property tax revenue to it because of the [Senate Bill No.] 1135 reallocation.
How the state treats the reallocation in connection with the mandate of California
Constitution, article XVI, section 8 (Proposition 98), is of possible concern to
the educational entities which are beneficiaries of the constitutional mandate,
but not the County. In short, there is simply no theory based on Proposition 98
and/or the effect of [Senate Bill No.] 399 upon it, which would, even assuming there
were no other obstacles, entitle the County to a writ [**474] of
mandate compelling compliance with County Ordinance No. 1993-0045, and negating
[Senate Bill No.] 1135. The County lacks standing to raise the issue." (23
Cal.App.4th at p. 1449.) [*817]
The other courts that have granted standing to local public entities to raise constitutional
challenges to enactments they were otherwise bound to enforce have similarly done
so in the limited context of enactments that imposed duties directly on or denied
significant rights to the entity itself. (See, e.g., Star-Kist Foods, Inc. v. County
of Los Angeles (1986) 42 Cal.3d 1, 5-10 [227 Cal. Rptr. 391, 719 P.2d 987] [state
law provided exemption from local taxation for business inventories of foreign origin;
county had standing to assert exemption violated commerce clause "because ...
the agencies experienced significant revenue loss"]; City of Garden Grove v.
Superior Court (2007) 157 Cal.App.4th 355 [68 Cal. Rptr. 3d 656] [entity asserted
materials it seized from medical marijuana user could not be returned because federal
preemption principles barred return of marijuana; standing to raise issue recognized
because entity had specific duty at issue under the statutory scheme and issue was
limited to whether that duty violated preemption principles].) However, the courts
have declined to confer standing on the entity to raise constitutional challenges
to enactments that had no direct impact on the entity but instead affected only
the entity's constituency. (See, e.g., City of Santa Monica v. Stewart (2005) 126
Cal.App.4th 43, 59-63 [24 Cal. Rptr. 3d 72] [standing denied where enactment imposed
no obligations on entity and only imposed restrictions on officials of entity].)
C. Analysis
State, relying on Lockyer v. City and County of San Francisco, supra, 33 Cal.4th
1055 and In re Tania S., supra, 5 Cal.App.4th 728, argues that because Counties
have suffered no cognizable injury from the exemptions for medical marijuana users
provided by the MMP or CUA, the action should be dismissed because Counties' "mere
dissatisfaction with ... or disagreement with [state] policies does not constitute
a justiciable controversy" and does not confer standing on Counties to raise
constitutional complaints about the MMP or CUA. (Zetterberg v. State Dept. of Public
Health (1974) 43 Cal.App.3d 657, 662 [118 Cal. Rptr. 100].) Counties, relying on
Star-Kist Foods, Inc. v. County of Los Angeles, supra, 42 Cal.3d 1 and City of Garden
Grove v. Superior Court, supra, 157 Cal.App.4th 355, assert they have standing because
they will suffer harm--by being required to establish and operate the apparatus
to process and issue identification cards--from statutory obligations they argue
are preempted by the CSA. [Footnote 6]
[*818] The standing principles distilled from the cases convince
us Counties do not have standing to challenge those portions of the MMP and CUA
that are not applicable to them and that do not injuriously affect them. (In re
Tania S., supra, 5 Cal.App.4th at 737.) [**475] Accordingly, because
major portions of the MMP and CUA neither impose obligations on nor inflict direct
injury to Counties, we reject Counties' effort to obtain an advisory opinion declaring
the entirety of the MMP and the bulk of the CUA are invalid under preemption principles.
[Footnote 7] However, because limited portions of the MMP--i.e., those statutes
requiring counties to adopt and operate the identification card system--do impose
obligations on Counties, which obligations would be obviated were those statutes
preempted by federal law, we conclude Counties have standing to raise preemption
claims insofar as the MMP establishes the identification card system. Accordingly,
we reach Counties' preemption arguments as to those statutes, and only those statutes,
that require Counties to implement and administer the identification card system.
[Footnote 8]
IV
THE PREEMPTION ISSUE
A. General Principles
(9) Principles of preemption have been articulated by numerous courts. " 'The
supremacy clause of article VI of the United States Constitution grants Congress
the power to preempt state law. State law that conflicts with a [*819]
federal statute is " 'without effect.' " [Citations.] It is equally well
established that "[c]onsideration of issues arising under the Supremacy Clause
'start[s] with the assumption that the historic police powers of the States [are]
not to be superseded by ... Federal Act unless that [is] the clear and manifest
purpose of Congress.' " [Citation.] Thus, " ' "[t]he purpose of Congress
is the ultimate touchstone" ' of pre-emption analysis." [Citation.]' "
(Jevne v. Superior Court (2005) 35 Cal.4th 935, 949 [28 Cal. Rptr. 3d 685, 111 P.3d
954].)
(10) The California Supreme court has identified "four species of federal preemption:
express, conflict, obstacle, and field. [Citation.] [§] First, express preemption
arises when Congress 'define[s] explicitly the extent to which its enactments pre-empt
state law. [Citation.] Pre-emption fundamentally is a question of congressional
intent, [citation], and when [**476] Congress has made its intent
known through explicit statutory language, the courts' task is an easy one.' [Citations.]
Second, conflict preemption will be found when simultaneous compliance with both
state and federal directives is impossible. [Citations.] Third, obstacle preemption
arises when ' "under the circumstances of [a] particular case, [the challenged
state law] stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress." ' [Citations.] Finally, field preemption,
i.e., 'Congress' intent to pre-empt all state law in a particular area,' applies
'where the scheme of federal regulation is sufficiently comprehensive to make reasonable
the inference that Congress "left no room" for supplementary state regulation.'
[Citation.]" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail
Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [63 Cal. Rptr. 3d 50, 162 P.3d 569],
fn. omitted (Viva!).)
The parties agree, and numerous courts have concluded, Congress's statement in the
CSA that "[n]o provision of this subchapter shall be construed as indicating
an intent on the part of the Congress to occupy the field in which that provision
operates, including criminal penalties, to the exclusion of any State law on the
same subject matter" (21 U.S.C. § 903) demonstrates Congress intended to reject
express and field preemption of state laws concerning controlled substances. (See,
e.g., People v. Boultinghouse (2005) 134 Cal.App.4th 619, 623 [36 Cal. Rptr. 3d
244] [21 U.S.C. § 903's " 'express statement by Congress that the federal drug
law does not generally preempt state law gives the usual assumption against preemption
additional force' "]; Gonzales v. Oregon (2006) 546 U.S. 243, 289 [163 L. Ed.
2d 748, 126 S. Ct. 904] (dis. opn. of Scalia, J.) [characterizing § 903 as a "nonpre-emption
clause"]; City of Hartford v. Tucker (1993) 225 Conn. 211 [621 A.2d 1339, 1341]
[describing 21 U.S.C. § 903 and "the antipreemption provision of the Controlled
Substances Act"].) When Congress has expressly described the scope of the state
laws it intended to preempt, the courts "infer Congress [*820]
intended to preempt no more than that absent sound contrary evidence." (Viva!,
supra, 41 Cal.4th at p. 945.)
B. Conflict and Obstacle Preemption
Although the parties agree that neither express nor field preemption apply in this
case, they dispute whether title 21 United States Code section 903 signified a congressional
intent to displace only those state laws that positively conflict with the provisions
of the CSA, or also signified a congressional intent to preempt any laws posing
an obstacle to the fulfillment of purposes underlying the CSA.
Conflict Preemption
Conflict preemption will be found when "simultaneous compliance with both state
and federal directives is impossible." (Viva!, supra, 41 Cal.4th at p. 936.)
In Southern Blasting Services v. Wilkes County, NC (4th Cir. 2002) 288 F.3d 584,
the court construed the effect of a federal preemption clause substantively identical
to title 21 United States Code section 903. [Footnote 9] In rejecting the plaintiffs'
argument that the [**477] local ordinances were invalid because
they were in "direct and positive conflict" with the federal law, the
Southern Blasting court concluded that "[t]he 'direct and positive conflict'
language in 18 U.S.C. § 848 simply restates the principle that state law is superseded
in cases of an actual conflict with federal law such that 'compliance with both
federal and state regulations is a physical impossibility.' [Quoting Hillsborough
County v. Automated Medical Labs. (1985) 471 U.S. 707, 713 [85 L. Ed. 2d 714, 105
S. Ct. 2371].] Indeed, § 848 explains that in order for a direct and positive conflict
to exist, the state and federal laws must be such that they 'cannot be reconciled
or consistently stand together.' " (Southern Blasting, supra, at p. 591; accord,
Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142-143 [10 L. Ed. 2d 248,
83 S. Ct. 1210] [state law preempted where "compliance with both federal and
state regulations is a physical impossibility"].)
(11) Congress has the power to permit state laws that, although posing some obstacle
to congressional goals, may be adhered to without requiring a person affirmatively
to violate federal laws. (Geier v. American Honda Motor Co. (2000) 529 U.S. 861,
872 [146 L. Ed. 2d 914, 120 S. Ct. 1913] [dicta].) In [*821] Gonzales
v. Oregon, supra, 546 U.S. 243, the court considered whether the CSA, by regulating
controlled substances and making some substances available only pursuant to a prescription
by a physician "issued for a legitimate medical purpose" (21 C.F.R. §
1306.04(a) (2008)), permitted the federal government to effectively bar Oregon's
doctors from prescribing drugs pursuant to Oregon's assisted suicide law by issuing
a federal administrative rule (the Directive) that use of controlled substances
to assist suicide is not a legitimate medical practice and dispensing or prescribing
them for this purpose is unlawful under the CSA. The majority concluded the CSA's
preemption clause showed Congress "explicitly contemplates a role for the States
in regulating controlled substances" (Gonzales v. Oregon, at p. 251), including
permitting the states latitude to continue their historic role of regulating medical
practices. In dissent, Justice Scalia concluded title 21 United States Code section
903 was "embarrassingly inapplicable" to the majority's preemption analysis
because the preemptive impact of section 903 reached only state laws that affirmatively
mandated conduct violating federal laws. (Gonzales v. Oregon, supra, 546 U.S. at
p. 289 (dis. opn. of Scalia, J.).) [Footnote 10] Thus, it appears Justice Scalia's
interpretation suggests a state law is preempted by a federal "positive conflict"
clause, like 21 U.S.C. section 903, only when the state law affirmatively requires
acts violating the federal proscription.
Obstacle Preemption
(12) Obstacle preemption [Footnote 11] will invalidate a state law when " '
"under the [**478] circumstances of [a] particular case, [the
challenged state law] stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress." ' [Citations.]" (Viva!,
supra, 41 Cal.4th at p. 936.) Under obstacle preemption, whether a state law presents
"a sufficient obstacle is a matter of judgment, to be informed by examining
the federal statute as a whole and identifying its purpose and intended effects:
[§] 'For when the [*822] question is whether a Federal act overrides
a state law, the entire scheme of the statute must of course be considered and that
which needs must be implied is of no less force than that which is expressed. If
the purpose of the act cannot otherwise be accomplished--if its operation within
its chosen field else must be frustrated and its provisions be refused their natural
effect--the state law must yield to the regulation of Congress within the sphere
of its delegated power.' " (Crosby v. National Foreign Trade Council (2000)
530 U.S. 363, 373 [147 L. Ed. 2d 352, 120 S. Ct. 2288].)
C. The State Identification Card Laws and Preemption
The parties below disputed the effect of the language of title 21 United States
Code section 903, which provides: " No provision of this subchapter shall be
construed as indicating an intent on the part of the Congress to occupy the field
in which that provision operates, including criminal penalties, to the exclusion
of any State law on the same subject matter which would otherwise be within the
authority of the State, unless there is a positive conflict between that provision
of this subchapter and that State law so that the two cannot consistently stand
together." (Italics added.)
In the proceedings below, State and other respondents contended this language evidenced
a congressional intent to preempt only those state laws in direct and positive conflict
with the CSA so that compliance with both the CSA and the state laws is impossible.
Counties asserted this language was merely intended to eschew express and field
preemption and should be construed as declaring Congress's intent to preempt any
state laws that posed a substantial obstacle to the fulfillment of purposes underlying
the CSA in addition to those in direct conflict. The trial court, after concluding
title 21 United States Code section 903 was intended to preserve all state laws
except insofar as compliance with both the CSA and the state statute was impossible,
found the MMP and CUA were not preempted because they did not mandate conduct violating
the CSA.
21 U.S.C. Section 903 Limits Preemption to Positive Conflicts
(13) The intent of Congress when it enacted the CSA is the touchstone of our preemption
analysis. (Jevne v. Superior Court, supra, 35 Cal.4th at p. 949.) When Congress
legislates in a "field which the States have traditionally occupied[,] ...
we start with the assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the clear and manifest purpose
of Congress." (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 [91
L. Ed. 1447, 67 S. Ct. 1146].) (14) Because the MMP [**479] and
CUA address fields historically occupied by the states--medical practices (Medtronic,
Inc. v. Lohr (1996) 518 U.S. 470, 485 [*823] [135 L. Ed. 2d 700,
116 S. Ct. 2240]) and state criminal sanctions for drug possession (City of Garden
Grove v. Superior Court, supra, 157 Cal.App.4th at pp. 383-386)--the presumption
against preemption informs our resolution of the scope to which Congress intended
the CSA to supplant state laws, and cautions us to narrowly interpret the scope
of Congress's intended invalidation of state law. (Medtronic, supra, 518 U.S. 470.)
Our evaluation of the scope of Congress's intended preemption examines the text
of the federal law as the best indicator of Congress's intent and, where that law
"contains an express pre-emption clause, our 'task of statutory construction
must in the first instance focus on the plain wording of the clause, which necessarily
contains the best evidence of Congress' pre-emptive intent.' " (Sprietsma v.
Mercury Marine (2002) 537 U.S. 51, 62-63 [154 L. Ed. 2d 466, 123 S. Ct. 518].) Because
"[i]n these cases, our task is to identify the domain expressly pre-empted
[citation] ... 'an express definition of the pre-emptive reach of a statute ...
supports a reasonable inference ... that Congress did not intend to pre-empt other
matters ...' [citation]." (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S.
525, 541 [150 L. Ed. 2d 532, 121 S. Ct. 2404]; accord, Viva!, supra, 41 Cal.4th
at pp. 944-945 [inference that express definition of preemptive reach means Congress
did not intend to preempt other matters "is a simple corollary of ordinary
statutory interpretation principles and in particular 'a variant of the familiar
principle of expressio unius est exclusio alterius: Congress' enactment of a provision
defining the pre-emptive reach of a statute implies that matters beyond that reach
are not pre-empted.' "].)
(15) The language of title 21 United States Code section 903 expressly limits preemption
to only those state laws in which there "is a positive conflict between [the
federal and state law] so that the two cannot consistently stand together."
(Italics added.) (16) When construing a statute, the courts seek to attribute significance
to every word and phrase (United States v. Menasche (1955) 348 U.S. 528, 538-539
[99 L. Ed. 615, 75 S. Ct. 513]) in accordance with their usual and ordinary meaning.
(Strong v. State Bd. of Equalization (2007) 155 Cal.App.4th 1182, 1193 [66 Cal.
Rptr. 3d 657].) The phrase "positive conflict," particularly as refined
by the phrase that "the two [laws] cannot consistently stand together,"
suggests that Congress did not intend to supplant all laws posing some conceivable
obstacle to the purposes of the CSA, but instead intended to supplant only state
laws that could not be adhered to without violating the CSA. Addressing analogous
express preemption clauses, the court in Southern Blasting Services v. Wilkes County,
NC, supra, 288 F.3d 584 held the state statute was not preempted because compliance
with both the state and federal laws was not impossible, and the court in Levine
v. Wyeth (Vt. 2006) 944 A.2d 179, 190-191 construed a federal statute with an analogous
express preemption clause (which preserved state laws unless there is a direct and
positive conflict) as "essentially [*824] remov[ing] from
our consideration the question of whether [state law] claims [are preempted as]
an obstacle to the purposes and objectives of Congress." Because title 21 United
States Code section 903 preserves state laws except where there exists such a positive
conflict that the two laws cannot consistently stand together, the implied conflict
analysis of obstacle preemption appears beyond the intended [**480]
scope of title 21 United States Code section 903.
(17) Counties argue this construction is too narrow, and we should construe Congress's
use of the term "conflict" in 21 United States Code section 903 as signifying
an intent to incorporate both positive and implied conflict principles into the
scope of state laws preempted by the CSA. Certainly, the United States Supreme Court
has concluded that federal legislation containing an express preemption clause and
a savings clause does not necessarily preclude application of implied preemption
principles. (See Geier v. American Honda Motor Co., supra, 529 U.S. 861; Buckman
Co. v. Plaintiffs' Legal Comm. (2001) 531 U.S. 341 [148 L. Ed. 2d 854, 121 S. Ct.
1012]; Sprietsma v. Mercury Marine, supra, 537 U.S. 51.) However, none of Counties'
cited cases examined preemption clauses containing the "positive conflict"
language included in title 21 United States Code section 903, and thus provide little
guidance here. [Footnote 12] Indeed, Counties' proffered construction effectively
reads the term "positive" out of section 903, which transgresses the interpretative
canon that we should accord meaning to every term and phrase employed by Congress.
(United States v. Menasche, supra, 348 U.S. at 538-539.) Moreover, when Congress
has intended to craft an express preemption clause signifying that both positive
and obstacle conflict preemption will invalidate state laws, Congress has so structured
the express preemption clause. (See 21 U.S.C. § 350e(e)(1) [Congress declared that
state requirements would be "preempted if--[§] (A) complying with [the federal
and state statutes] is not possible; or [§] (B) the requirement of the State ...
as applied or enforced is an obstacle to accomplishing and carrying out [the federal
[*825] statute]"].) Where statutes involving similar issues
contain language demonstrating the Legislature knows how to express its intent,
" 'the omission of such provision from a similar statute concerning a related
subject is significant to show that a different legislative intent existed with
reference to the different statutes.' " (In re Jennings (2004) 34 Cal.4th 254,
273 [17 Cal. Rptr. 3d 645, 95 P.3d 906].)
(18) Because Congress provided that the CSA preempted only laws positively conflicting
with the CSA so that the two sets of laws could not consistently stand together,
and omitted any reference to an intent to preempt laws posing an obstacle to the
CSA, we interpret title 21 United States Code section 903 [**481]
as preempting only those state laws that positively conflict with the CSA so that
simultaneous compliance with both sets of laws is impossible.
The Identification Laws Do Not Positively Conflict With the CSA
Counties do not identify any provision of the CSA necessarily violated when a county
complies with its obligations under the state identification laws. [Footnote 13]
The identification laws obligate a county only to process applications for, maintain
records of, and issue cards to, those individuals entitled to claim the exemption.
The CSA is entirely silent on the ability of states to provide identification cards
to their citizenry, and an entity that issues identification cards does not engage
in conduct banned by the CSA.
(19) Counties appear to argue there is a positive conflict between the identification
laws and the CSA because the card issued by a county confirms that its bearer may
violate or is immunized from federal laws. [Footnote 14] However, the applications
for the card expressly state the card will not insulate the bearer from federal
laws, and the card itself does not imply the holder is immune from prosecution for
federal offenses; instead, the card merely identifies those [*826]
persons California has elected to exempt from California's sanctions. (Cf. U.S.
v. Cannabis Cultivators Club (N.D.Cal. 1998) 5 F.Supp.2d 1086, 1100 [California's
CUA "does not conflict with federal law because on its face it does not purport
to make legal any conduct prohibited by federal law; it merely exempts certain conduct
by certain persons from the California drug laws"].) Because the CSA law does
not compel the states to impose criminal penalties for marijuana possession, the
requirement that counties issue cards identifying those against whom California
has opted not to impose criminal penalties does not positively conflict with the
CSA.
Accordingly, we reject Counties' claim that positive conflict preemption invalidates
the identification laws because Counties' compliance with those laws can "consistently
stand together" with adherence to the provisions of the CSA.
D. The Identification Card Laws and Obstacle Preemption
(20) Although we conclude title 21 United States Code section 903 signifies Congress's
intent to maintain the power of states to elect "to 'serve as a laboratory'
in the trial of 'novel social and economic experiments without risk to the rest
of the country' " (United States v. Oakland Cannabis Buyers' Cooperative (2001)
532 U.S. 483, 502 [149 L. Ed. 2d 722, 121 S. Ct. 1711] (conc. opn. of Stevens, J.))
by preserving [**482] all state laws that do not positively conflict
with the CSA, we also conclude the identification laws are not preempted even if
Congress had intended to preempt laws posing an obstacle to the CSA. Although state
laws may be preempted under obstacle preemption when the law " ' "stands
as an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress" ' " (Viva!, supra, 41 Cal.4th at p. 936), not every state
law posing some de minimus impediment will be preempted. To the contrary, "[d]isplacement
will occur only where, as we have variously described, a 'significant conflict'
exists between an identifiable 'federal policy or interest and the [operation] of
state law,' [citation] or the application of state law would 'frustrate specific
objectives' ... [citation]." (Boyle v. United Technologies Corp. (1988) 487
U.S. 500, 507 [101 L. Ed. 2d 442, 108 S. Ct. 2510], italics added.) Indeed, Boyle
implicitly recognized that when Congress has legislated in a field that the states
have traditionally occupied, rather than in an area of unique federal concern, obstacle
preemption requires an even sharper conflict with federal policy before the state
statute will be invalidated. (Ibid.)
(21) We conclude the identification card laws do not pose a significant impediment
to specific federal objectives embodied in the CSA. The purpose of the CSA is to
combat recreational drug use, not to regulate a state's medical practices. (Gonzales
v. Oregon, supra, 546 U.S. at pp. 270-272 [*827] [holding Oregon's
assisted suicide law fell outside the preemptive reach of the CSA].) The identification
card laws merely provide a mechanism allowing qualified California citizens, if
they so elect, to obtain a form of identification that informs state law enforcement
officers and others that they are medically exempted from the state's criminal sanctions
for marijuana possession and use. Although California's decision to enact statutory
exemptions from state criminal prosecution for such persons arguably undermines
the goals of or is inconsistent with the CSA--a question we do not decide here--any
alleged "obstacle" to the federal goals is presented by those California
statutes that create the exemptions, not by the statutes providing a system for
rapidly identifying exempt individuals. The identification card statutes impose
no significant added obstacle to the purposes of the CSA not otherwise inherent
in the provisions of the exemptions that Counties do not have standing to challenge,
and we therefore conclude the limited provisions of the MMP that Counties may challenge
are not preempted by principles of obstacle preemption.
We are unpersuaded by Counties' arguments that the identifications laws, standing
alone, present significant obstacles to the purposes of the CSA. [Footnote 15] For
example, Counties assert that identification cards make it "easier for individuals
to use, possess, and cultivate marijuana" in violation of federal laws, without
articulating why the absence of such a card--which is entirely voluntary and not
a prerequisite to the exemptions available for such underlying conduct--renders
the underlying conduct significantly more difficult.
(22) Counties also appear to assert the identification card laws present a significant
[**483] obstacle to the CSA because the bearer of an identification
card will not be arrested by California's law enforcement officers despite being
in violation of the CSA. However, the unstated predicate of this argument is that
the federal government is entitled to conscript a state's law enforcement officers
into enforcing federal enactments, over the objection of that state, and this entitlement
will be obstructed to the extent the identification card precludes California's
law enforcement officers from arresting medical marijuana users. The argument falters
on its own predicate because Congress does not have the authority to compel the
states to direct their law enforcement personnel to enforce federal laws. In Printz
v. United States (1997) 521 U.S. 898 [138 L. Ed. 2d 914, 117 S. Ct. 2365], the federal
Brady Act purported to compel local law enforcement officials to conduct background
checks on prospective handgun purchasers. The United States Supreme Court held the
[*828] 10th Amendment to the United States Constitution deprived
Congress of the authority to enact that legislation, concluding that "in [New
York v. United States (1992) 505 U.S. 144 [120 L. Ed. 2d 120, 112 S. Ct. 2408] we
ruled] that Congress cannot compel the States to enact or enforce a federal regulatory
program. Today we hold that Congress cannot circumvent that prohibition by conscripting
the State's officers directly. The Federal Government may neither issue directives
requiring the States to address particular problems, nor command the States' officers,
or those of their political subdivisions, to administer or enforce a federal regulatory
program." (Printz, at p. 935.) [Footnote 16] Accordingly, we conclude the fact
that California has decided to exempt the bearer of an identification card from
arrest by state law enforcement for state law violations does not invalidate the
identification laws under obstacle preemption. (Cf. Conant v. Walters, supra, 309
F.3d at p. 646 (conc. opn. of Kozinski, J.) ["That patients may be more likely
to violate federal law if the additional deterrent of state liability is removed
may worry the federal government, but the proper response--according to New York
and Printz--is to ratchet up the federal regulatory regime, not to commandeer that
of the state."].)
We conclude that even if Congress intended to preempt state laws that present a
significant obstacle to the CSA, the MMP identification card laws are not preempted.
V
THE AMENDMENT ISSUE
The CUA was adopted by initiative when the voters adopted Proposition 215. (People
v. Urziceanu (2005) 132 Cal.App.4th 747, 767 [33 Cal. Rptr. 3d 859].) Article II,
section 10, subdivision (c) of the California Constitution [*829]
[**484] provides the Legislature may "amend or repeal an initiative
statute by another statute that becomes effective only when approved by the electors
unless the initiative statute permits amendment or repeal without their approval."
San Bernardino asserts on appeal that the identification laws, which are among the
statutes adopted by the Legislature without voter approval when it enacted the MMP,
are invalid because they amend the CUA.
This issue, although not pleaded in the complaints filed by either San Bernardino
or San Diego, was initially raised by County of Merced's (Merced) complaint in intervention.
State argues on appeal that because Merced has not appealed, and only Merced formally
pleaded the article II, section 10, subdivision (c), issue, we may not on appeal
consider San Bernardino's arguments as to this issue. During oral arguments on the
motions for judgment on the pleadings, San Bernardino adopted and joined in Merced's
arguments, without objection by State that the arguments were beyond the scope of
San Bernardino's pleadings. Additionally, the trial court's judgment, after noting
that one of the issues raised by Merced and joined in by San Bernardino was the
article II, section 10, subdivision (c), issue, specifically noted in its judgment
that "[a]t oral argument, each party agreed that all plaintiffs win or lose
together," and thereafter ruled on the article II, section 10, subdivision
(c), issue. Under these circumstances, we conclude that because (1) the parties
litigated the matter below on the understanding that San Diego and San Bernardino
were properly asserting the additional ground of invalidity raised by Merced, and
(2) the trial court's judgment against San Bernardino included a rejection of all
of the arguments raised by all coplaintiffs, San Bernardino may litigate this issue
on appeal. (See, e.g., Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871,
876-877 [67 Cal. Rptr. 2d 411].)
(23) Although legislative acts are entitled to a strong presumption of constitutionality,
the Legislature cannot amend an initiative, including the CUA, unless the initiative
grants the Legislature authority to do so. (Amwest Surety Ins. Co. v. Wilson (1995)
11 Cal.4th 1243, 1251-1253 [48 Cal. Rptr. 2d 12, 906 P.2d 1112].) Because the CUA
did not grant the Legislature the authority to amend it without voter approval,
and the identification laws were enacted without voter approval, those laws are
invalid if they amend the CUA within the meaning of article II, section 10, subdivision
(c) of the California Constitution.
(24) The proscription embodied in article II, section 10, subdivision (c) of the
California Constitution is designed to " 'protect the people's initiative
[*830] powers by precluding the Legislature from undoing what the people
have done, without the electorate's consent.' " (Proposition 103 Enforcement
Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal. Rptr. 2d 342].)
"[L]egislative enactments related to the subject of an initiative statute may
be allowed" when they involve a "related but distinct area" (Mobilepark
West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43
[41 Cal. Rptr. 2d 393]) or relate to a subject of the initiative that the initiative
"does not specifically authorize or prohibit." (People v. Cooper (2002)
27 Cal.4th 38, 47 [115 Cal. Rptr. 2d 219, 37 P.3d 403].)
(25) The identification laws do not improperly amend the provisions of the [**485]
CUA. [Footnote 17] The MMP's identification card system, by specifying participation
in that system is voluntary and a person may "claim the protections of [the
CUA]" without possessing a card (§ 11362.71, subd. (f)), demonstrates the MMP's
identification card system is a discrete set of laws designed to confer distinct
protections under California law that the CUA does not provide without limiting
the protections the CUA does provide. For example, unlike the CUA (which did not
immunize medical marijuana users from arrest but instead provided a limited "immunity"
defense to prosecution under state law for cultivation or possession of marijuana,
see People v. Mower (2002) 28 Cal.4th 457, 468-469 [122 Cal. Rptr. 2d 326, 49 P.3d
1067]), the MMP's identification card system is designed to protect against unnecessary
arrest. (See § 11362.78 [law enforcement officer must accept the identification
card absent reasonable cause to believe card was obtained or is being used fraudulently].)
Additionally, the MMP exempts the bearer of an identification card (as well as qualified
patients as defined by the MMP) from liability for other controlled substance offenses
not expressly made available to medical marijuana users under the CUA. (Compare
§ 11362.5, subd. (d) [§§ 11357 and 11358 do not apply to patient or primary caregiver
if substance possessed or cultivated for personal medical purposes] with § 11362.765,
subd. (a) [specified persons not subject to criminal liability for §§ 11359, 11360,
11366.5 or 11570 in addition to providing exemptions from §§ 11357 and 11358, which
parallel the CUA's exemption].)
[*831] Counties, relying on Franchise Tax Board v. Cory (1978)
80 Cal.App.3d 772 [145 Cal. Rptr. 819], [Footnote 18] asserts that any legislation
that adds provisions to an initiative statute, for purposes of either correcting
it or clarifying it, is amendatory within the proscriptions of article II, section
10, subdivision (c). [Footnote 19] However, in Franchise Tax [**486]
Board, the court invalidated the legislative enactment because the initiative statute
required audits of financial reports of candidates for public office, and the legislative
enactment both added to the audit requirements of the initiative statute (by specifying
the standards to be employed by the audit) and by "significantly restricting
the manner in which audits are to be conducted." (Franchise Tax Board v. Cory,
supra, 80 Cal.App.3d at p. 777.)
Here, although the legislation that enacted the MMP added statutes regarding California's
treatment of those who use medical marijuana or who aid such users, it did not add
statutes or standards to the CUA. Instead, the MMP's identification card is a part
of a separate legislative scheme providing separate protections for persons engaged
in the medical marijuana programs, and the MMP carefully declared that the protections
provided by the CUA were preserved without the necessity of complying with the identification
card provisions. (§ 11362.71, subd. (f).) The MMP, in effect, amended provisions
of the Health and Safety Code regarding regulation of drugs adopted by the Legislature,
not provisions of the CUA. Because the MMP's identification card program has no
impact on the protections provided by the CUA, we reject Counties' claim that those
provisions are invalidated by article II, section 10, subdivision (c), of the California
Constitution. [*832]
DISPOSITION
The judgment is affirmed.
O'Rourke, J., and Irion, J., concurred.