Jul 25 2010

Did Feinstein save Prop. 215?

Posted by J. Craig Canada in Examiner.com, law, legalization, proposition 19

Dianne Fienstein courtesy Wikipedia Commons

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When Senator Dianne Fienstien described California’s Proposition 19 as “a jumbled legal nightmare” that will make “our communities less safe” she expressed the fears of many who support marijuana legalization but oppose this initiative.

The ballot argument against Proposition 19 is signed by Fienstien and The National President of Mothers Against Drunk Driving, Laura Dean-Mooney.

Ironically, it provides ammunition for those who believe the initiative will be used to supersede or amend California’s existing medical marijuana laws.

The MADD-Feinstein argument against Prop. 19 states:  “Don’t be fooled.  The proponents are hoping you will think Proposition 19 is about ‘medical marijuana’.  It is not.  Proposition 19 makes no changes either way in the medical marijuana laws.”

The argument in favor of Prop. 19 also mentions medical marijuana:  “Under Proposition 19, only adults 21 and over can posses up to one ounce of marijuana, to be consumed at home or in licensed establishments.  Medical marijuana patients’ rights are preserved.”

Apparently this means that the prohibition and penalties on those under 21 don’t apply to medical marijuana patients.

However, it begs the question of whether other rights of medical marijuana patients, are preserved.

One of these is smoking marijuana for medical reasons in public, which is currently not illegal in California, except where smoking cigarettes is prohibited or within 1,000 feet of a school, recreation center, or youth center.  State law also makes it illegal to smoke marijuana on a boat, a motor vehicle that is being operated, or a school bus.  That’s right, a school bus.

Could this argument be interpreted to mean that prohibiting anyone under 21 from having marijuana for any reason somehow “preserves” the rights of medical marijuana patients?  Stranger things have happened.  Consider People vs. Mentch where the California Supreme Court determined that providing marijuana to medical marijuana patients was not providing for either their health nor their safety.

According to California case law

In interpreting a voter initiative, “ ‘we apply the same principles that govern statutory construction.  Thus, [1] “we turn first to the language of the statute, giving the words their ordinary meaning.”  [2] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent].  [3] When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [¶] In other words, our ‘task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent.’ ” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)

Steve Cooley, District Attorney for Los Angeles County, is one of the three signers of the Rebuttal To the Argument in favor of Proposition 19.  The other signers are Kamala Harris, District Attorney for San Francisco County, and Kevin Nida, President of California State Firefighters  Association.

Steve Cooley, along with Carmen Trutanich (Los Angeles City Attorney), and Bonnie Dumanis (San Diego District Attorney) have made a name for themselves as rabid opponents of marijuana legalization.

Trutanich and Cooley have gone so far as to declare sales of medical marijuana are illegal, this despite the fact that in 2005 The California Board of Equalization determined that dispensaries must have a seller’s permit and pay sales tax,  that in 2008 Attorney General Jerry Brown issued guidelines stating that medical marijuana transactions were subject to sales tax, and that The Compassionate Use Act of 1996 stated:

To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.

If the California Supreme Court can determine that buying marijuana does not fall under the penumbra of “obtain”, what can it not determine?  The government has proven it is repeatedly and consistently obstructionist when it comes to implement the will of the people with regard to marijuana.  Recent polls show support for medical marijuana up to 81%.

The Legislative Analysis is ominously silent regarding the impact of Prop. 19 on California’s existing medical marijuana cultivators, dispensaries, and collectives.  However, recent announcements by Long Beach, Sacramento (The State Capital), Oakland (Home of Prop. 19), and Berkeley of proposed taxes on medical marijuana sales indicates a belief that these taxes are necessary to protect their existing medical marijuana dispensaries.

In announcing her opposition to Prop. 19, Feinstein also warned that passage could endanger California’s federal funding.

For more info:

Official Voter Information Guide – California Secretary of State | 02 Nov 10
Prop. 19 Title, Summary, and Legislative Analysis – California Secretary of State | 02 Nov 10
Prop. 19 Arguments and Rebuttals – California Secretary of State | 02 Nov 10
Text of Proposed Law – California Secretary of State | 04 Aug 09

Feinstein opposes marijuana legalization measure – Los Angeles Time | 12 Jul 10

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