From: Letitia Pepper
Subject: Why AB 2312 Is Unconstitutional Under Prop. 215, and Bad for the Local Economy
Date: Wednesday, June 20, 2012, 6:38 AM
Please pass the following concerns about AB 2312 on to the members of the Senate. Thank you.
I have been an attorney for not quite 30 years, during much of which time I worked for appellate court justices analyzing cases and legislation from a neutral perspective.
I have been a medical marijuana patient (for MS) for about five years.
I am also the Director of Legal and Legislative Analysis for Crusaders for Patients Rights, a non-profit corporation based in Sacramento, CA that supports people legally using cannabis as medicine.
I am opposed to AB 2312, which purports to turn the individual rights held by individual patients under Prop. 215, who have the right to collectively organize, pursuant to the state and constitutional right to freedom of association, into a right that can be held by a limited number of entities. It also purports to allow local governments to ban collectives and to tax cannabis. These provisions are all clearly contrary to Prop. 215, and will lead to litigation, which the State will lose, based on Prop. 215’s status, as a People-enacted initiative, as controlling over contrary legislation by the People’s elected officials.
I am also opposed to all efforts to tax cannabis as medicine, which is the only legal use of cannabis allowed under state and federal law.
While some people may be smirking about using the medical marijuana laws to use cannabis “recreationally,” their deceptions have nothing to do with the only actual legal use of cannabis — as medicine. People get doctors to write prescriptions for prescription drugs which they are actually using “recreationally,” yet no one is trying to tax prescription medications as a consequence. No more should the presence of recreational users among the flocks of patients be used as justification for taxing cannabis.
In my considered legal opinion, California patients cannot legally be taxed on cannabis as medicine. Here is why.
(1) Prop. 215 did not provide for a tax on it, and it says that any laws passed to implement Prop. 215 must further its purpose: safe and affordable access. Taxes do not increase safety and they reduce affordability.
(2) The CA constitution forbids taxes on growing crops, so you can’t tax it as it grows in people’s yards.
(3) CA doesn’t tax prescription medications, and Prop. 215 was passed so people would have cannabis as a legal alternative to prescription meds (because prescription meds were killing people — and still are). So, if the state doesn’t tax prescription meds, then it’s a denial of equal protection to tax cannabis. That’s true under both state and federal constitutional laws.
(4) The People delegated the task of adopting implementing legislation for Prop. 215 to the Legislature. The Legislature could therefore pass a law that included delegating the making of nitty gritty regulations to carry out the law adopted by the Legislature (SB 420) to the Attorney General, another elected official. Can the Legislature, under AB 2312, delegate regulatory authority to a commission, not referenced by Prop. 215, whose members are not elected, and hence not answerable to the People? No, it cannot.
AB 2312 violates Prop. 215, and is therefore going to be unconstitutional if adopted. This was why the quantity limits in SB 420 were struck down, as unconstitutional under Prop. 215, by the California Supreme Court in People v. Kelly.
Americans for Safe Access is actually a very small group. It is controlled by, essentially, one person, and its stance on AB 2312 was not developed in consultation with patients, but instead is being promoted “from the top down” with e-milas from ASA urging patients to call and say “vote yes” without reading the bill for themselves.
AB 2312 might be “better than nothing” in another state with bad medical marijuana laws, but it does not represent the interests of California medical marijuana patients, whose individual rights under Prop. 215 are far better than those of all other Americans in other medical marijuana states.
In terms of the impact on California’s economy, legal cannabis, without taxes on its sales, is very beneficial. It is far more beneficial to local economies than are prescription drugs.
For example, I am saving $300 a month in the cost of the co-pays I used to pay, to out-of-state companies, for my MS drugs – drugs that made me sick. My health insurer is also saving the thousands of dollars in costs, every month, it was paying to out-of-state pharmaceutical companies. That money is now instead being spent in California — to pay for goods and services here. I can buy home improvement items, attic insulation for example, instead. Money paid in salaries to people working to grow and distribute cannabis legally is also fueling local economies.
AB 2312 is a bad law. Please vote no.
Letitia E. Pepper
P. O. Box 55560
Riverside, CA 92517