TWN Staff Writer

Independent newspaper publisher and political activist Richard Johnson last Friday argued in Mendocino County Superior Court that a county ballot measure that would limit the number of marijuana plants an individual can possess is illegal and should not be permitted on the June ballot.

Judge John Behnke took the case under submission, saying he would rule soon on both Johnson's case and on the Laguna-Hamamoto case Behnke heard last week.

Johnson argued Measure B is illegal because it sets guidelines for marijuana cultivation, that mirror those in Senate Bill 420. Johnson maintained only a legislative body has the authority to establish cultivation guidelines. Attempting to do so by ordinance, as Measure B does, is invalid, he said.

"Adopting guidelines is not done by ordinance," Johnson said. "The form of Measure B is not an ordinance. These are guidelines, and guidelines are the purview of the Legislature. In the case of our county, the legislative body is the board of supervisors, and attempting to set forth guidelines on marijuana is something...appropriately done by the board of supervisors, not by the people."

When Behnke reminded him Measure G, which was authored by Johnson, also set guidelines, Johnson laughed briefly and said, "No one has ever brought Measure G to a court challenge. And I would much rather have you review Measure G here in this court than to have the people of Mendocino County review it, that's for sure."

Mendocino County Deputy Counsel Frank Zotter said Johnson was in error, arguing there was nothing in the California Elections Code that indicated guidelines could not be enacted by ordinance or by a voter initiative.

"I think that voter initiative is not ruled out," Zotter said. "To bring a lawsuit on the use of terms like 'guidelines' versus 'enact' is a quibble. For example, we have CEQA guidelines and I don't think people would doubt CEQA has the right to enact such guidelines."

Johnson also took issue with a finding by County Counsel Jeanine Nadel that "the effect of Measure G has been to increase public safety issues surrounding the uncontrolled production of marijuana either for medical or recreational use, and has jeopardized the health, safety and welfare of the people of Mendocino County."

Johnson challenged the truthfulness of Nadel's finding, arguing testimony by Mendocino County Undersheriff Gary Hudson would invalidate Nadel's finding.

But Behnke refused to allow Hudson to testify because Nadel's finding was not an operative portion of Measure B. "Findings are not an operative part of an ordinance," Behnke said. "They are simply a statement of intent."

While complimenting Johnson on the competence of his arguments, Behnke said he is inclined to let the election go forward.

"I think we are dealing with a situation where we are being asked to construe the peoples' right to hold elections liberally. This would, of course, not hold good in the instance where we might find an obstacle or an impediment, which sometimes can occur and do occur occasionally. But absent that, I am predisposed to let elections go forward."