Sep 13 2010

What marijuana lawyers have to say about California’s Proposition 19

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— Last Update 16 Sep 10

Though concerns about California’s Prop. 19 were raised by marijuana patients and advocates before and immediately upon its filing with the state Attorney General over a year ago on 27 Jul 09, lawyers have been reluctant to address these concerns.

The response of marijuana organizations such as NORML, and leadership such as Marc Emery, has been to hurl personal attacks against those who voice these concerns.

The mainstream media has goose-stepped right along, with titles such as “Stoners Against Legalization”.

They aren’t against “legalization”, they’re against Proposition 19.

And they’re against it because they believe it will make marijuana less legal than it is now, and particularly for medical marijuana patients.

And particularly if Steve Cooley becomes Attorney General.

The best listing of these concerns is Why Pro-Pot Activists Oppose Prop. 19 published 10 Jul 10 by Dragonfly De La Luz.

On 17 Jul 10, a link to California’s Proposition 19 will supersede or amend its medical marijuana laws was posted on Judge Jim Gray’s Facebook wall. To date, there has been neither response nor even acknowledgment.

Jennifer Soares

On 25 Aug 10, East Bay Express announced (5 months after the fact) that Jennifer Soares came out against Prop. 19 on 17 Apr 10 at the International Cannabis & Hemp Expo at The Cow Palace in San Francisco.

When a member of the audience asked her opinion of Prop. 19 she replied, “All I can say is, you guys should read it for yourself and make your own decision.”

Emboldened when Bill Panzer, attorney and author of Prop. 215, added that he didn’t care for Prop. 19 either, she said a few more things. The harassment “just skyrocketed immediately after that.”

She began to get scathing calls at her office, and the boos were audible when she spoke on May 8th at Dr. Greenthumb & Tommy Chong’s Spring Gathering in San Bernardino.

As a side note, the authors of Proposition 215, The Compassionate Use Act of 1996, were: Todd Mikuriya (deceased), Valerie Corral, Dennis Peron, Scott Imler, Bill Panzer, Dale Gieringer, and Anna Boyce. Three of these are known to be against Prop. 19: Dennis Peron, Bill Panzer, and Anna Boyce.

The only author of Prop. 215 known to be for Prop. 19 is Dale Gieringer, Vice-Chair of the Board of Directors, National Organization for the Reform of Marijuana Laws (NORML), and state-coordinator of California NORML.

Soares represents medical marijuana dispensaries in Southern California, and one of her primary objections to Prop. 19 is that it allows cities and counties to opt out of commercial sales. Because of this, people in “dry” counties such as Orange have no reason to vote for it.

J. Tony Serra
J. Tony Serra. Sketch placed in public domain by the artist, Paulette Frankel.

J. Tony Serra by Paulette Frankel.

Tony Serra, known as The King of Torts, is one of the most famous lawyers in the world today.

On 10 Aug 09 Mickey Martin, Associate Editor of West Coast Cannabis and a supporter of Prop. 19, asked Serra his thoughts about the various marijuana legalization initiatives vying for the November ballot. Serra responded:

“I haven’t completely studied them, but I don’t believe the government should be in it,” he said. “Once it is legalized the greedy corporations will get their hands in it and it creates this corporate moral disability. Some large dispensaries already practice acts of corporate moral disability. I want it to stay with the mammas and the pappas. The small and unique places. I want the government out of my closet. It should be free, man. I am never for more taxes. I am a tax resister.”

Serra is a tax resister from way back. In 2005 he was sentenced to ten months to Lompoc State Prison for “willful failure to pay taxes”, most of which was served.

No further comment by Serra regarding Proposition 19 has been found.

Letitia Pepper

Letitia Pepper graduated from Hastings and has been an active member of the bar since 1982. She has more than 20 years of experience working as a judicial research attorney for the State of California and for the federal district court preparing draft opinions which presented, from a neutral rather than adversarial perspective, the applicable laws and facts, with conclusions about final results/consequences.

She even once worked (from 1984 to 1987) as a business and municipal law litigation associate at Best, Best & Krieger, the same law firm that’s been advising cities to ban medical marijuana (MM) collectives.

On 18 Aug 19, she published in the Modesto Bee that Dragonfly’s analysis of Prop. 19 – which has been trashed by the likes of Chris Conrad, Marc Emery, and Russ Belville – is absolutely correct:

Based on my expertise and review of prop. 19, I can now state, categorically, that if Proposition 19 passes, it WILL affect medical marijuana patients and collectives.

It will limit patients to tiny grow areas — one per parcel, not one per patient — and allow cities to legally ban collectives (the current bans are, in my opinion, illegal). And it will probably cause the price of marijuana to go up, put the profits from marijuana into the hands of a few large businesses instead of a lot of small businesses, and, depending on the goodwill of politicians in Santa Cruz, put compassionate collective groups like the Wo/Man’s collective out of business.

Upon making this pronouncement, Pepper launches into her analysis:

Under those rules, any arguments or statements by Chris Conrad or Russ Belville, or the flyers handed out by the pro-Prop. 19 people that claim medical marijuana patients won’t be affected, have no relevance. Instead, it’s the actual language of Prop. 19 that counts.

Only if the text is ambiguous will a court look any further than the text – and then only at certain items, such as ballot summaries — not at general commentary by people like Conrad and Belville.

Letitia Pepper on Prop. 19 – added 16 Sep 10

Some believe the official ballot argument against the initiative, signed by Senator Feinstein, will save California’s medical marijuana laws because it states that Prop. 19 “makes no change either way in the medical marijuana laws”.

Pepper’s analysis concludes that it will never get that far because under Section 2. B Purposes are six paragraphs that can be interpreted to amend current medical marijuana law, including Proposition 215: paragraphs 1, 3, 6, 7, 8, and 14.

However, it’s Section 2 C Intent that Pepper calls the smoking gun:

In Section 2 (C), “Intent,” paragraph 1 lists all the existing laws that Prop. 19 is intended to affect, and paragraph 2 lists all the laws it is NOT intended to affect. Here’s the important point:

Neither paragraph 1 nor paragraph 2 mention the Compassionate Use Act (CUA), which is found in H & S Code section 11362.5. If the Prop. 19 people really did not intend to affect patients and collectives, they would have included section 11362.5 in paragraph 2. They didn’t.

Pepper concludes with the following rhetorical question:

Why would the Prop. 19 people set things up like this? This is no accident; a lot of attorney work and money went into drafting this thing to accomplish the desired results – results presumably desired by Richard Lee and friends. Why would they want to be sure that patients’ current rights to grow and distribute are SEVERLY limited, while running around telling everyone they are not affected?

On the Vote No on Prop 19 site, Pepper raises additional disturbing issues:

Prop. 19, if it passes, will no doubt result in years of multiple lawsuits, city by city, related to local governments’ rights to impose various fees and taxes, whether voter approval is needed to impose the fee or tax, and whether a simple majority or two-thirds vote is necessary.

Did you notice the part about whether voter approval is needed to impose the fee or tax?

Bill Panzer

Update 16 Sep 10 – Among marijuana lawyers, the reputation of Bill Panzer is second to none. His current clients include Harborside and The Berkeley Patients Group. Among medical marijuana clinics in California, Harborside is the largest, with gross revenues of $26 million last year.

On 16 Sep 10, David Malmo-Levine published the following personal communication from Bill Panzer:

I find Rick Horowitz’ analysis to be thoughtful and, unfortunately, accurate.

Dale is correct about the history of the numerical limits that were the subject of Kelly.

As for David Nick’s analysis, I have to disagree and would refer you to People v. Spark wherein the court explains the use of the purpose language of Prop 215 and its limited relevancy.

– Bill Panzer, Prop 215 author/lawyer, personal communication
Rick Horowitz

Rick Horowitz, an attorney in Fresno, has published several articles where he undertakes a word-for-word analysis of Prop. 19: a real word-for-word analysis, not a cut-and-paste exercise in magical thinking such as that published by NORML’s Outreach Coordinator Russ Bellville.

In his first article, Horowitz beings by recounting how he attended a meeting in San Francisco of The Voluntary Committee Lawyers, Marijuana and Federalism: California a Test Case: The Legal Implications of Proposition 19.

When no one there addressed the intersection of Prop. 19 with existing medical marijuana law in California and he attempted to question Richard Lee about it afterward, he got the brush-off.

“These questions,” however, are important. The way Proposition 19 reads, “these questions” are not addressed. In fact, Proposition 19 appears to be capable of undoing all the work those promoting medical marijuana have done to enable patients to receive their medication without suffering consequences under California’s criminal laws.

I think it’s quite likely that Proposition 19 will trump California’s medical marijuana laws and allow local municipalities to apply restrictions that, thus far, they have been blocked from implementing by the combination of the Compassionate Use Act and the California Supreme Court.

People vs. Mentch Oral Arguments

After noting the Lee and his associates appear to have an understanding of “notwithstanding any other law” that is at variance with the rest of the universe, he examines where and why this phrase is problematic.

First he examines the rules of statutory interpretation, and concludes that because the word “medical” is never mentioned one way or the other in the actual language that will become law, the courts will not find it necessary to consult the intents and purposes to settle questions of application.

Then, he focuses on §11300 and §11301. The first is with regard to private individuals, the second to commercial activities.

They both have “notwithstanding” clauses, but Horowitz argues that subtle differences in the wording will have the result that §11300 cannot be construed to amend or supersede California’s existing medical marijuana law, but that §11301 can.

He expands upon this in his response to comments:

If the law says that local governments can “control” or “regulate” things, then they can control or regulate things. We — this includes me! — sincerely hope that the government will control or regulate things in a way that comports with our own goals, but this does not always happen.

A perfect example is seen in the way certain law enforcement agencies (or even just certain individual law enforcement officers) and courts have handled medical marijuana patients and their caregivers after the passage of the Compassionate Use Act (“CUA”, or Proposition 215) and the Medical Marijuana Program Act (“MMPA,” or SB 420).

If the purposes of those laws, which are similar to some of the purposes outlined in Proposition 19, would have been followed, then certain court cases would not have even been necessary. This includes, but is not limited to, the cases I referenced in my article; e.g., City of Garden Grove and People v. Kelly

The bottom line here is that I am concerned that Proposition 19 does not do enough to protect against cities and counties undoing some of the good that the CUA and MMPA have brought about — particularly the CUA.

As People v. Kelly showed, the MMPA improperly tried to limit medical marijuana patients in the guise of “helping” and “clarifying.

The limiting portion was struck down because the Legislature is forbidden from modifying an initiative passed by the voters without the permission of the voters

My concern is that, if this were to happen again after the passage of Proposition 19, whether “to help clarify” or for some hidden nefarious purpose (like the city leaders just don’t like marijuana), that protection might not be upheld by the courts, because Proposition 19 is, itself, an initiative.

Nevertheless, Horowitz states he does not think Prop. 19 is “terminally flawed”. Instead, because Prop. 19 will allow people to see that legalizing marijuana “isn’t as harmful as some want us to think”, that problems will be “easier to fix down the road”.

The supporters of Prop 19 who are taking issue with my comments fail to read, or understand, what I’ve said.

I’m beginning to think it’s a deliberate misunderstanding, perhaps spurred by a greater concern for their own ability to grow, possess and use pot than any concern they might possibly have for medical marijuana users.

Initially, I avoided saying anything like that, but from the deliberate refusal to read and respond to what I’ve said, I can only assume they wish to deliberately keep anyone from thinking about it…Proposition 19 allows local governments to pass the very ordinances that … they’re currently using to attack Proposition 215. Whereas Proposition 215 currently prevents some of them from being upheld by the California Supreme Court, that would change if the court decides that Proposition 19 permits the passage of those laws.

The court might not allow local governments to be more restrictive than Proposition 215 when it comes to medical marijuana. However, it might allow it, because, as I keep trying to point out, the court might decide that Proposition 19 removes the barrier against local governments “regulating” and “controlling” how marijuana is grown, possessed, or used. Past experience indicates the court is more likely to go with the latter view than the former.

Nothing in Proposition 19 explicitly protects Proposition 215. Anyone who says differently has apparently not done much reading of the law.

In his 2nd article regarding Prop. 19, Horowitz muses:

Frankly, even the proponents of Proposition 19 at the recent conference I attended referred to the Proposition, jokingly, as “the Marijuana Lawyer’s Full Employment Act.” If Proposition 19 passes, attorneys like me will probably get even more clients, not less. So I’ve no business reason for wanting to see Proposition 19 fail.

He then talks about “want” vs. “need”, something virtually no one else has considered, much less touched upon, in this entire debate:

My current tendency to think Proposition 19 is not a good proposition is based upon my fear that it may constitute a step backwards for those people who actually need marijuana, as opposed to those who “merely” wish to exercise their rights to recreational use. I think people should be able to do both, but I think medical marijuana use is much more important.

After noting that The Constitution is ignored by our government on a daily basis when it comes to the war on drugs, he states:

The Proposition specifically allows local governments “notwithstanding any other provision of state or local law,” to “control, license, regulate, permit or otherwise authorize, with conditions,” various activities necessary to obtain, grow, or consume marijuana.

“Notwithstanding any other provision of state or local law” means that no other state or local law — including the laws implemented by Proposition 215 — prevent local governments from passing new local ordinances that control, license, regulate, permit or otherwise authorize, with conditions, the various activities designated in the proposed Health & Safety Code section 11301.

Anyone who thinks this does not mean that local governments won’t try to place limitations on marijuana users — including medical marijuana users — needs only to stop for a moment and remember what happened with the Medical Marijuana Program Act passed by the legislature after Proposition 215 became law…

Proposition 19 is an initiative. It therefore may legally modify the Compassionate Use Act. It does this by permitting local governments, “notwithstanding any other provision of state or local law,” to pass their own laws regulating and controlling marijuana. You can read it this way: “No matter what any other provision of state law, such as the Compassionate Use Act, might say, local governments can do what section 11301 allows them to do.” That is, local governments can “control, license, regulate, permit or otherwise authorize, with conditions,” the activities necessary to obtain, grow, or consume marijuana…

By allowing local governments to control and regulate cultivation, transportation, sale, and consumption of marijuana “notwithstanding any other provision of state or local law,” including the provisions of the state laws known as the Compassionate Use Act, Proposition 19 potentially allows anti-marijuana local governments to place limitations on everyone who uses marijuana, including medical marijuana users.

Dale Gierenger comments on this article, and his comment is worth noting:

This analysis of Prop. 19 is thoughtful and insightful, although in my view it doesn’t constitute adequate reason not to vote for it. I have long ago come to recognize that every law is, alas, imperfect.

One point of correction, however. Having participated in the task force meetings where the MMPA was written, I can say that it was never the intent of the bill to establish fixed legal limits on possession and cultivation. Rather, the understanding on the task force was that the limits would serve only as guidelines for arrest, not statutory limits on guilt, which would have been unconstitutional – precisely as the Supreme Court decided in Kelley.

Unfortunately, as too often happens in the legislative process, the intent of the task force was obscured by a last-minute drafting error by staff, which made it appear that the limits were supposed to be absolute.

Because of legislative deadlines, the drafting error could not be fixed, so the authors of the MMPA submitted a follow-up “clean up” bill in the next legislature to clarify the intent.

Unfortunately, that bill was vetoed by Gov. Schwarzenegger, leaving the ill-drafted language of the MMPA in place until the Kelley court rightly overturned. it.

Horowitz responded that Gierenger’s comments proved the point of his articles, that “intent” doesn’t have the importance that some think it does:

I do, however, think that if we believe medical marijuana is a Good Thing™, then we should probably not support Proposition 19…

Section 11301 — I think — allows local governments to do what they could not really do before: stop people from operating commercial enterprises within their locale, including cooperatives and dispensaries.

Maybe a court — maybe all courts — will strike down such ordinances based on an “intent” argument which says Proposition 19 only intended, and the voters who voted for it only intended, that restrictions on marijuana be loosened and not tightened.

I still maintain this is not clear. Much of this “intent” argument — that the law is intended to loosen and not restrict — is being made in unofficial ways. The drafters and proponents of Proposition 19 are trying to convince the public of it…

For while Proposition 19 states that it “intends” to loosen restrictions on marijuana cultivation, possession and use, and states that its purpose is to benefit everyone by regulating cannabis like we do alcohol (e.g., by legalizing it, with restrictions and conditions), Proposition 19 also allows local governments to “opt out.” When they don’t “opt out,” it allows them to “control” and “regulate.”…

Arguably, it allows local governments to legislate cooperatives and dispensaries out of existence, which is something that under current law might not be possible.

What we need, I think, is a voter-sponsored initiative that spells out what local governments can and cannot do with respect to this issue. The Legislature might not be able to fix it, for the same reason they could not place limitations on quantities via the MMPA: Proposition 19 is an initiative.

His third article begins with the following disclaimer:

In part, then, I wanted to write another article to provide a little balance. I’m worried that perhaps my comments about potential weaknesses in Proposition 19 are being “over-interpreted.” So there’s no doubt, I do have concerns on Proposition 19. And I have not yet decided how I will vote on Proposition 19.

In this article, I want to re-visit some of what I’ve been saying and try, once again, to explain my concerns about Proposition 19.

Perhaps, as some are saying, Proposition 19 could be passed and the problems could be fixed later. There’s certainly an argument for this, especially since the primary danger looks to be for medical marijuana cooperatives, collectives and dispensaries.

J. David Nick

Lanny Swerdlow of the Marijuana Anti-Prohibition Project in Palm Springs circulated an “open letter” from J. David Nick which was published on 8 Sep 10 by Mickey Martin, associate editor of West Coast Cannabis.

Nick states:

Anyone who claims that Proposition 19 will restrict or eliminate rights under the Compassionate Use Act (CUA) or the Medical Marijuana Program (MMP) is simply wrong. If anything, Proposition 19 will permit individuals to grow and possess much more than ever before with patients, coops and collectives still receiving the same protections they are entitled to under the CUA and MMP.

Nick is probably the most sought after marijuana attorney in the world today. It’s “common knowledge” that arguing with Nick is a losing proposition.

Prop. 19 will create an insurmountable barrier for local law enforcement which is still bent on depriving you of your rights through the despicable device of using federal law enforcement officers.

Here’s why.

Federal drug enforcement is nearly 100 percent dependent on the ability to use local law enforcement. They do not have the manpower to operate without it. Prop. 19 in no uncertain terms tells local law enforcement that they cannot even “attempt to” seize cannabis. If Prop. 19 passes, California will actually have a law on the books that expressly forbids local police from cooperating with the feds in the seizure of any “lawfully cultivated” California cannabis.

Nevertheless, when Nick discusses Section 2 C 1, he fails to mention the phrase “including but not limited to the following”, which precedes the list of laws the initiative is “intended to limit the application and enforcement of”:

The nail in the coffin for those arguing against Prop. 19 is found in Section 2C (1). This is the only section which discusses which other laws the acts is “intended to limit” and nowhere in this section is the CUA or the MMP listed. If the purpose of Prop. 19 was “to limit” the application and enforcement of the CUA and MMP, those laws would have been listed along with all the other laws that are listed in Section 2C (1). Since the CUA and MMP were not listed, then Prop. 19 does not “limit” the CUA and MMP.

It’s that simple.

Nor does he mention or explain the fact that Section 2 C(2), the list of laws the initiative is “not intended to affect the application and enforcement of” does not list H&S 11362.5, Proposition 215, nor the medical marijuana laws enacted by the legislature.

However, he does state:

… existing laws cannot be repealed by inference and instead must be EXPRESSLY repealed. A court cannot find that a law, such as the CUA or MMP, was changed by “implication.” In other words, it cannot repeal a law by ruling that another law implied that it should.

Nick goes on to say that the personal limit of one ounce only applies to what you take out of your house and that he can easily imagine successfully defending a client with 200 pounds.

Updated 16 Sep 10 — Two days after David Nick’s opinion on Prop. 19 was published by Mickey Martin, Letitia Pepper published a point-by-point refutation.

For More Info:

What Could Go Wrong?: Still More on Prop. 19 – Rick Horowitz, Probable Cause | 29 Aug 10
Does Prop. 19 unercut Prop. 215? Some say yes – California Pot News | 25 Aug 10
Stoners Against Legalization – East Bay Express | 25 Aug 10
How will Prop 19 Affect You – Letitia Pepper, Vote No on 19 | 22 Aug 10
Dragonfly Is Correct About Prop.19’s Impact On Patients – Letitia Pepper, Modesto Bee | 18 Aug 10
Toke It Easy, Man: More on Proposition 19 – Rick Horowitz, Probable Cause | 14 Aug 10
Blowing Smoke: Proposition 19 & Medical Marijuana – Rick Horowitz, Probable Cause | 07 Aug 10
Why Pro-Pot Activists Oppose Prop. 19 – Dragonfly De La Luz | 10 Jul 10
California Proposition 19 – California Secretary of State

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