NOTHING MELLOW ABOUT DISSENT IN MEDICAL POT CASE

In an unusually contentious ruling (pdf) Monday, California appellate
court Judges Paul Haerle and J. Anthony Kline got in each other's
faces about whether a judge can order a criminal defendant to stop
using medicinal marijuana while on probation when the underlying
crime has nothing to do with pot use. Kline says you can't. Haerle
says you can, and -- unfortunately for Kline -- Haerle was backed in
the 2-1 ruling by Justice James Richman.

The opinion focused on Daryl Moret Jr., who pleaded no contest to
possession of a concealed firearm on the condition he abstain from
using marijuana, which he claimed a doctor had recommended for
chronic migraine headaches.

Solano County Superior Court Judge Peter Foor insisted on the
condition because he had doubts that Moret needed pot for medicinal
reasons and felt the substance could only lead the 19-year-old -- who
had also embezzled $2,000 from a former employer and said he found
the stolen gun in some bushes -- to further crimes.

Moret's other choice? Jail.

"After balancing all these considerations, the trial court determined
that it would help in 'basically straightening things out' and 'being
a productive member of the community' that he abstain from using
marijuana while on probation," Haerle wrote. "Thus, the trial court
clearly and properly exercised its discretion."

An irked Kline responded by saying the majority opinion "flies in the
face of the law," "subordinates the will of the people" and is
"legally untenable."

"This court's [ruling]," he wrote, "permits imposition of conditions
of probation that are unrelated to the crime of which the defendant
was convicted, forbids conduct that is not criminal and requires
conduct that has no relationship to the defendant's future
criminality. No modern California court has ever done such a thing,
which is precedent shattering."

Forbidding Moret's use of marijuana for medicine, he added, doesn't
"serve a reformative or rehabilitative purpose."

Kline also had few kind words for the trial court judge's "suspicion"
that Moret doesn't suffer from migraine headaches.

"The diagnosis and treatment of medical problems are functions
assigned to the medical profession," he wrote, "not criminal court judges."

This article first appeared on Legal Pad: A Cal Law blog.