that is meaningless to me. We are going to here about some far fetched shit in the next few months.
ICMAG Administration endorses The Regulate, Control and Tax Cannabis Act of 2010
- Thread starter JJScorpio
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JackTheGrower
We need some help. It seems some information on how Prop 19 will effect Prop 215 needs the Pro-prop 19 minds to help us see why prop-19 won't effect the Medical people.
https://www.icmag.com/ic/showthread.php?p=3773979&posted=1#post3773979
Come on down and explain if you will.
https://www.icmag.com/ic/showthread.php?p=3773979&posted=1#post3773979
Come on down and explain if you will.
prop 19 lessens restrictions on recreational users.
there is no more strict regulation than absolute prohibition. that is what recreational users have now.
215 is a completely separate issue, however 19 allows one to grow without having to pay extortion to the government for "protection" from seizure,harassment and arrest. again a lessening of restriction.
19 allows the recreational user not to have to rely on an affirmative defense provided by a recommendation. again a lessening of restriction.
if you have been brainwashed into believing absolute prohibition on recreational use is deregulation i can see how 19 would seem to be an increase in regulation...
but i realize prohibition IS regulation and 19 lessens said regulation.
localhero
Member
heres the aticle linked:
Blowing Smoke: Proposition 19 & Medical Marijuana
Saturday, August 7th, 2010
Yesterday, I drove to downtown San Francisco — something which, on a weekday, is definitely not on my list of favorite things to do — to the Hiram W. Johnson State Building for a meeting of the Voluntary Committee of Lawyers. The topic of discussion was Marijuana & Federalism: California a Test Case: The Legal Implications of Proposition 19.1
The meeting was somewhat informative, but when it came to addressing questions of significant concern to my medical marijuana clients, I guess I’d have to say there was a lot of smoke being blown — and it didn’t come from any high-quality buds.
The meeting was, in many senses, quite informative. Speakers included Assemblymember Tom Ammiano from the 13th District of California, a number of attorneys working for various organizations that deal with drug policies, and even the Sheriff of Mendocino County, Thomas D. Allman.
One question that did not receive a full answer, though, had to do with the intersection of Proposition 19 and California’s current medical marijuana laws. I attempted to ask the question, but I stood up too late. I was waiting, under the erroneous assumption that someone would address this important issue without provocation. However, once I realized that the mantra of the people presenting was that Proposition 19 was either not going to impact medical marijuana users, or that it would improve things for them, and that apparently they subscribed to the theory that if you repeat something often enough, that alone makes it true, I decided to ask my question.
As I said, though, I was too late; I didn’t get the chance to pose my question publicly.
Fortunately — or so I thought – Richard Lee, the so-called “grandfather of the medical marijuana movement,” was present. Surely, he can answer my question.
I stopped Mr. Lee as we were leaving the meeting. I introduced myself. He shook my hand and I asked my question. “How will Proposition 19′s proposed limitations on amounts people can own or cultivate impact current medical marijuana laws?” Perhaps — and based on the responses of Mr. Lee and the two people accompanying him, I suspect this is the case — he’s grown tired of hearing this question. Perhaps he was in a hurry. Maybe he just always comes across as irritated and angry.
Perhaps he just needed to chill and toke before being able to fully appreciate my question. I don’t know. I’m just trying to be charitable.
Suffice it to say that Mr. Lee immediately began trying to move on, as he barked out that the language of the initiative, wherein it states, “Notwithstanding any other provision of law…,” meant that Proposition 19 would not negatively impact existing laws.
A woman accompanying him, who I believe may have been Christine Wagner, smilingly shoved some cards at me and referred me to “the FAQ on our website” for more information.
The card indicates Christine Wagner is a lawyer, which gave me hope, because surely an attorney would not point me to an answer that wasn’t an answer, would she? Well, maybe!
Not. The most comprehensive answer I can find on the website is nothing more than a slightly-more-clear restatement of the same bald assertions barked at me by the retreating and muttering Mr. Lee.
I’m sure you can tell I not only felt I did not get an answer to my question, but I was almost as irritated by the encounter as Mr. Lee.
The problem here, though, is not — or at least not so much — that I felt I was given a rather rude brush-off. The problem, as I said, is that the FAQ provides no more information than was shouted over their shoulders as Mr. Lee’s group hustled down the street. Mr. Lee appeared to be angrily muttering about “these questions.” He’s obviously grown tired of them.
“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.
Here’s why:
Mr. Lee and his compatriots tried to say — in the few words they threw my way — that Proposition 19 is worded to ensure that it does not impact existing law. (I have to take it that they meant “existing medical marijuana law,” because obviously it impacts existing law. That’s the whole point. If it didn’t impact existing law, it wouldn’t “legalize marijuana.”)
In fact, Proposition 19 is replete with language that says, “Notwithstanding any other provision of law….” Mr. Lee & Co. apparently believe, based on what they told me, that “notwithstanding any other provision of law” means that if there are other laws, those other laws are not overruled, altered, erased, modified — choose your poison: they say it’s not poisonous.
Anyone who doesn’t already know the meaning of “notwithstanding” can see that this is wrong merely by grabbing the nearest dictionary. According to Webster’s Third International Dictionary, Unabridged (2002), for example, the word means “without prevention or obstruction from or by : in spite of.”
With respect to some parts of Proposition 19, this is not necessarily a problem. In particular — and I think this is what Mr. Lee & Co. focus upon (too much) — the proposed addition of section 11300 to Article 5 of Chapter 5 of Division 10 of the Health & Safety Code probably does not encroach upon the rights of medical marijuana users. The reason for this depends not upon the “notwithstanding” language to which Mr. Lee & Co. tried to point me, but because the words following say, “it is lawful and shall not be a public offense under California law….”
In other words, section 11300 essentially says, “Here are some things that will be legal.” The “notwithstanding” language has the effect of adding, “regardless of what any other law might state.” So, take Health & Safety Code § 11357 which says,
Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).
If Proposition 19 passes, this would no longer be true, because Proposition 19 says,
Notwithstanding any other provision of law, it is lawful and shall not be a public offense…to possess, process, share or transport not more than one ounce of cannabis solely for that individual’s personal consumption, and not for sale.
Assuming it passes, Proposition 19, being the newer law, trumps 11357 on this issue. That’s a good thing, because that’s what we want it to do. Additionally, Proposition 19′s proposed section 11300 addition does not trump the medical marijuana laws because while 11300 basically says “regardless of what any other law says, these things are legal,” it does not say, “only these things are legal.” In other words, 11300 provides a list of some things that are legal, regardless of whether some other law says they are not. But it’s not necessarily the only way that things can be legal. Lots of other things, including things allowed by the medical marijuana laws, can be legal, too.
Thus, the problem isn’t with Proposition 19′s proposed addition of section 11300 to the Health & Safety Code.
There is potentially a significant problem, however, with Proposition 19′s proposed addition of section 11301. Ironically, the reason is that same “notwithstanding any other provision of state or local law” phrase in the proposed language. The entire relevant portion says:
Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit or otherwise authorize, with conditions, the following….
Remembering the meaning of “notwithstanding any other provision of state…law,” this means “in spite of what the medical marijuana laws say, a local government may” potentially adopt restrictive rules as pertains to certain activities. The listed activities are all the activities one needs to carry out in order to obtain, or grow, or consume medical marijuana.
Right now — at least the way I read the law — local governments cannot effectively eliminate the protections of the medical marijuana laws by passing local ordinances that “control” or “regulate” them. If they did, I think many such ordinances would arguably constitute impermissible amendments to the Compassionate Use Act passed by the People via the initiative process — something no California government can do.2 Thus, rules that some counties are passing in an attempted end-run around medical marijuana laws are probably unenforceable because they are contrary to the Compassionate Use Act, the Medical Marijuana Program Act, or both.3
Tulare County, for example, has passed such limiting ordinances. Some of these ordinances have not yet been tested in court, but other portions of the Tulare County ordinances are already illegal and thus unenforceable. For example, the ordinances include limitations on quantities of marijuana which may be possessed or cultivated. But the California Supreme Court has already determined that this constitutes an impermissible amendment to the Compassionate Use Act.4
Proposition 19, however, will allow local governments to do what the Compassionate Use Act currently forbids them from doing. Why? Because the Compassionate Use Act was enacted into the law by initiative: Proposition 215. Initiatives can only be changed by the government if the initiative itself either expressly permits that, or if the Constitution is changed in some way as to alter the initiative process. Thus, any California government is, by law,
powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c).5
However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives.6 Well, guess what? Proposition 19 is an initiative, also! So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.
Let me be clear about something. I’m not trying to play “hide the ball bud” here. There is an argument against what I just said. One could argue that 11301 says “control, license, regulate, permit or otherwise authorize, with conditions,” and that it does not say, “forbid, prohibit, or prevent.” One can also argue that allowing local governments to place restrictions on medical marijuana would violate the intent of the laws, because “clearly” Proposition 19 is intended to loosen up, or liberate, marijuana from the strictures of State prohibitions. “Clearly,” with this as the intent, it would not make sense to read Proposition 19 as allowing local governments to “control” or “regulate” or place unreasonable “conditions” on medical marijuana patients, or their caregivers.
Myself, I’m not comfortable sitting around hoping that local governments “clearly” understand this. I happen to think a well-written Proposition to legalize marijuana should explicitly state that it cannot be read in a way that restricts current medical marijuana laws. But that’s me. And I don’t smoke pot, so maybe what I think doesn’t count.
I guess another way to see how this plays out is to vote “yes” on Proposition 19. And then just wait until the smoke clears.
1. At the time of this blog post, the VCL main page advertised the conference, so I linked it. As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was. [↩]
2. People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186]. [↩]
3. Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law. (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].) [↩]
4. People v. Kelly, supra, 47 Cal.4th at 1043. [↩]
5. People v. Kelly, supra, 47 Cal.4th at 1045-1046. [↩]
6. Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342]. [↩]
This entry was posted on Saturday, August 7th, 2010 at 7:46 pm and is filed under Marijuana Law. Hyperlinked tags for this post include legalize marijuana, marijuana law, marijuana legalization, marijuana prohibition, medical marijuana, medical marijuana laws, Prop 19, Proposition 19, Richard Lee. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
11 Responses to “Blowing Smoke: Proposition 19 & Medical Marijuana”
1. Cheryl Aichele Says:
August 8th, 2010 at 11:35 am
Have you read the initiative?
Purpose # 6 specificially says “Provide easier, safer access for patients who need cannabis for medical purposes.”
and purpose #12 specifically says “12. Make cannabis available for scientific, medical, industrial, and research purposes.”
And prop215 the Compassionate Use Act has it’s own purpose (C) which reads “(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
I cannot imagine how a court can decide that prop 215 or prop 19 if passed would actually encourage a local government to limit safe and affordable access to medical cannabis. It goes against what the purposes of both this initiatives.
2. Rick Says:
August 8th, 2010 at 2:05 pm
I have read the initiative quite a number of times, including the version initially submitted as well as versions posted on various pro-marijuana websites which contain incorrect section numbering. Did you read my post? Or did you stop after seeing the part where I said there was a potential for conflict and just decide to give your uneducated opinion at that point?
There are a couple of things worth mentioning in response to your comments:
1. I am a practicing attorney. I have defended a large number of people who have been prosecuted under laws which were written for some other purpose than the purpose for which they were being prosecuted.
2. I have absolutely no doubt that the people who drafted and support Proposition 19 would not want the law to be used in a way contrary to what they desire. Governments don’t always honor the desires of voters, though. (I certainly hope this is not a surprise to you!) Thus, when voters are considering initiatives, they must educate themselves about the initiatives and consider the potential interaction with other statutes, including prior initiatives which they’ve passed, to ensure they don’t accidentally provide governmental agents with a way to undo what the voters believed they were doing.
3. The stated purposes of an initiative do not constitute the law; they provide some rationale for understanding why the voters might have supported the law. They are useful in helping to interpret the law (but see more below on this). Laws state or imply things like “do this,” “do not do that,” “this shall happen,” “this may happen,” “this shall not happen,” “this should not happen,” etc. 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.
4. You could go farther than simply pointing out purposes 6 and 12 in Proposition 19′s text. Purpose 7 tries to be even better. Among other things, it appears to state that even if a city opts out of the “Proposition 19 plan,” then the old rules implemented through the CUA and MMPA still allow medical marijuana patients to exceed the limits that ordinary citizens are allowed under Proposition 19. But there are two thoughts that come to my lawyer’s mind in considering this language.
a. The first is that we’re talking about one of the “Purposes” of the Act. In other words, we’re not talking about part of the actual “this is what you can/must do” of the proposed statutes. Not everything that is included in an Act has an impact on how the law will be interpreted. (For example, courts have discussed how the “Title” of an Act may, or may not, impact the interpretation of the law contained within the Act. (Moore v. Williams (1912) 19 Cal.App. 600, 609 [127 P. 509].)) I’m not going to build an exhaustive list, but if you look at cases which interpret statutes, you will see that not a few contain an Opinion of the Court and, additionally, either a Concurrence, or a Dissent, or both. In one such case, a Concurrence took issue with the idea that “‘we may not properly interpret [an initiative] measure in a way that the electorate did not contemplate’ and that we must, therefore, look first to the electorate’s ‘purpose.’” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 119 [980 P.2d 433] (conc. opn. of Werdegar, J.).) Justice Werdegar denied that this was true and said, “At times this will, indeed, mean that the law has consequences the voters did not specifically ‘contemplate.’” (Ibid.) So it is entirely possible that because of the “plain language” of the proposed legislation, someone will make a determination with which you disagree. Someone in power. Someone whose interpretation results in the law having consequences the voters did not consider.
b. Specific to that last point — again, thinking like a lawyer — does this mean that if a city chooses not to opt in to the Proposition 19 plan, then medical marijuana patients continue to enjoy the greater protections of the CUA and MMPA, but if the city decides that it will opt in, they don’t? Because that’s how the plain language of the stated purpose appears to read.
5. There are cities and counties that do not approve of the loosening of laws relating to marijuana. (Indeed, Proposition 19 even tries to accommodate them, by allowing them to decide or not decide what to do about controlling, regulating, licensing, etc. It merely provides a base below which cities and counties, apparently, cannot go if/when they do decide to control, regulate, license, etc.) In some of these cities and counties, even with medical marijuana laws in place, the purposes of which were to make it easier for patients to get medicine, those cities and counties have passed ordinances which have the effect of making it more difficult for patients to get medicine.
6. I spoke with a marijuana doctor recently who appeared to approve of the idea of controlling and limiting the growing and distribution of marijuana “to ensure the quality of the medicine.” I can easily imagine some city or county passing regulations which, to most of us, would look like it makes it harder to get marijuana, but which the city or county argues is necessary to ensure the safety of its citizens, including marijuana patients.
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.
You are, of course, free to disagree. But the fact that we have this disagreement is actually further evidence that there could be such a problem. What if a judge looks at it the same way I’ve done?
Blowing Smoke: Proposition 19 & Medical Marijuana
Saturday, August 7th, 2010
Yesterday, I drove to downtown San Francisco — something which, on a weekday, is definitely not on my list of favorite things to do — to the Hiram W. Johnson State Building for a meeting of the Voluntary Committee of Lawyers. The topic of discussion was Marijuana & Federalism: California a Test Case: The Legal Implications of Proposition 19.1
The meeting was somewhat informative, but when it came to addressing questions of significant concern to my medical marijuana clients, I guess I’d have to say there was a lot of smoke being blown — and it didn’t come from any high-quality buds.
The meeting was, in many senses, quite informative. Speakers included Assemblymember Tom Ammiano from the 13th District of California, a number of attorneys working for various organizations that deal with drug policies, and even the Sheriff of Mendocino County, Thomas D. Allman.
One question that did not receive a full answer, though, had to do with the intersection of Proposition 19 and California’s current medical marijuana laws. I attempted to ask the question, but I stood up too late. I was waiting, under the erroneous assumption that someone would address this important issue without provocation. However, once I realized that the mantra of the people presenting was that Proposition 19 was either not going to impact medical marijuana users, or that it would improve things for them, and that apparently they subscribed to the theory that if you repeat something often enough, that alone makes it true, I decided to ask my question.
As I said, though, I was too late; I didn’t get the chance to pose my question publicly.
Fortunately — or so I thought – Richard Lee, the so-called “grandfather of the medical marijuana movement,” was present. Surely, he can answer my question.
I stopped Mr. Lee as we were leaving the meeting. I introduced myself. He shook my hand and I asked my question. “How will Proposition 19′s proposed limitations on amounts people can own or cultivate impact current medical marijuana laws?” Perhaps — and based on the responses of Mr. Lee and the two people accompanying him, I suspect this is the case — he’s grown tired of hearing this question. Perhaps he was in a hurry. Maybe he just always comes across as irritated and angry.
Perhaps he just needed to chill and toke before being able to fully appreciate my question. I don’t know. I’m just trying to be charitable.
Suffice it to say that Mr. Lee immediately began trying to move on, as he barked out that the language of the initiative, wherein it states, “Notwithstanding any other provision of law…,” meant that Proposition 19 would not negatively impact existing laws.
A woman accompanying him, who I believe may have been Christine Wagner, smilingly shoved some cards at me and referred me to “the FAQ on our website” for more information.
The card indicates Christine Wagner is a lawyer, which gave me hope, because surely an attorney would not point me to an answer that wasn’t an answer, would she? Well, maybe!
Not. The most comprehensive answer I can find on the website is nothing more than a slightly-more-clear restatement of the same bald assertions barked at me by the retreating and muttering Mr. Lee.
I’m sure you can tell I not only felt I did not get an answer to my question, but I was almost as irritated by the encounter as Mr. Lee.
The problem here, though, is not — or at least not so much — that I felt I was given a rather rude brush-off. The problem, as I said, is that the FAQ provides no more information than was shouted over their shoulders as Mr. Lee’s group hustled down the street. Mr. Lee appeared to be angrily muttering about “these questions.” He’s obviously grown tired of them.
“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.
Here’s why:
Mr. Lee and his compatriots tried to say — in the few words they threw my way — that Proposition 19 is worded to ensure that it does not impact existing law. (I have to take it that they meant “existing medical marijuana law,” because obviously it impacts existing law. That’s the whole point. If it didn’t impact existing law, it wouldn’t “legalize marijuana.”)
In fact, Proposition 19 is replete with language that says, “Notwithstanding any other provision of law….” Mr. Lee & Co. apparently believe, based on what they told me, that “notwithstanding any other provision of law” means that if there are other laws, those other laws are not overruled, altered, erased, modified — choose your poison: they say it’s not poisonous.
Anyone who doesn’t already know the meaning of “notwithstanding” can see that this is wrong merely by grabbing the nearest dictionary. According to Webster’s Third International Dictionary, Unabridged (2002), for example, the word means “without prevention or obstruction from or by : in spite of.”
With respect to some parts of Proposition 19, this is not necessarily a problem. In particular — and I think this is what Mr. Lee & Co. focus upon (too much) — the proposed addition of section 11300 to Article 5 of Chapter 5 of Division 10 of the Health & Safety Code probably does not encroach upon the rights of medical marijuana users. The reason for this depends not upon the “notwithstanding” language to which Mr. Lee & Co. tried to point me, but because the words following say, “it is lawful and shall not be a public offense under California law….”
In other words, section 11300 essentially says, “Here are some things that will be legal.” The “notwithstanding” language has the effect of adding, “regardless of what any other law might state.” So, take Health & Safety Code § 11357 which says,
Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).
If Proposition 19 passes, this would no longer be true, because Proposition 19 says,
Notwithstanding any other provision of law, it is lawful and shall not be a public offense…to possess, process, share or transport not more than one ounce of cannabis solely for that individual’s personal consumption, and not for sale.
Assuming it passes, Proposition 19, being the newer law, trumps 11357 on this issue. That’s a good thing, because that’s what we want it to do. Additionally, Proposition 19′s proposed section 11300 addition does not trump the medical marijuana laws because while 11300 basically says “regardless of what any other law says, these things are legal,” it does not say, “only these things are legal.” In other words, 11300 provides a list of some things that are legal, regardless of whether some other law says they are not. But it’s not necessarily the only way that things can be legal. Lots of other things, including things allowed by the medical marijuana laws, can be legal, too.
Thus, the problem isn’t with Proposition 19′s proposed addition of section 11300 to the Health & Safety Code.
There is potentially a significant problem, however, with Proposition 19′s proposed addition of section 11301. Ironically, the reason is that same “notwithstanding any other provision of state or local law” phrase in the proposed language. The entire relevant portion says:
Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit or otherwise authorize, with conditions, the following….
Remembering the meaning of “notwithstanding any other provision of state…law,” this means “in spite of what the medical marijuana laws say, a local government may” potentially adopt restrictive rules as pertains to certain activities. The listed activities are all the activities one needs to carry out in order to obtain, or grow, or consume medical marijuana.
Right now — at least the way I read the law — local governments cannot effectively eliminate the protections of the medical marijuana laws by passing local ordinances that “control” or “regulate” them. If they did, I think many such ordinances would arguably constitute impermissible amendments to the Compassionate Use Act passed by the People via the initiative process — something no California government can do.2 Thus, rules that some counties are passing in an attempted end-run around medical marijuana laws are probably unenforceable because they are contrary to the Compassionate Use Act, the Medical Marijuana Program Act, or both.3
Tulare County, for example, has passed such limiting ordinances. Some of these ordinances have not yet been tested in court, but other portions of the Tulare County ordinances are already illegal and thus unenforceable. For example, the ordinances include limitations on quantities of marijuana which may be possessed or cultivated. But the California Supreme Court has already determined that this constitutes an impermissible amendment to the Compassionate Use Act.4
Proposition 19, however, will allow local governments to do what the Compassionate Use Act currently forbids them from doing. Why? Because the Compassionate Use Act was enacted into the law by initiative: Proposition 215. Initiatives can only be changed by the government if the initiative itself either expressly permits that, or if the Constitution is changed in some way as to alter the initiative process. Thus, any California government is, by law,
powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c).5
However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives.6 Well, guess what? Proposition 19 is an initiative, also! So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.
Let me be clear about something. I’m not trying to play “hide the ball bud” here. There is an argument against what I just said. One could argue that 11301 says “control, license, regulate, permit or otherwise authorize, with conditions,” and that it does not say, “forbid, prohibit, or prevent.” One can also argue that allowing local governments to place restrictions on medical marijuana would violate the intent of the laws, because “clearly” Proposition 19 is intended to loosen up, or liberate, marijuana from the strictures of State prohibitions. “Clearly,” with this as the intent, it would not make sense to read Proposition 19 as allowing local governments to “control” or “regulate” or place unreasonable “conditions” on medical marijuana patients, or their caregivers.
Myself, I’m not comfortable sitting around hoping that local governments “clearly” understand this. I happen to think a well-written Proposition to legalize marijuana should explicitly state that it cannot be read in a way that restricts current medical marijuana laws. But that’s me. And I don’t smoke pot, so maybe what I think doesn’t count.
I guess another way to see how this plays out is to vote “yes” on Proposition 19. And then just wait until the smoke clears.
1. At the time of this blog post, the VCL main page advertised the conference, so I linked it. As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was. [↩]
2. People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186]. [↩]
3. Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law. (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].) [↩]
4. People v. Kelly, supra, 47 Cal.4th at 1043. [↩]
5. People v. Kelly, supra, 47 Cal.4th at 1045-1046. [↩]
6. Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342]. [↩]
This entry was posted on Saturday, August 7th, 2010 at 7:46 pm and is filed under Marijuana Law. Hyperlinked tags for this post include legalize marijuana, marijuana law, marijuana legalization, marijuana prohibition, medical marijuana, medical marijuana laws, Prop 19, Proposition 19, Richard Lee. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
11 Responses to “Blowing Smoke: Proposition 19 & Medical Marijuana”
1. Cheryl Aichele Says:
August 8th, 2010 at 11:35 am
Have you read the initiative?
Purpose # 6 specificially says “Provide easier, safer access for patients who need cannabis for medical purposes.”
and purpose #12 specifically says “12. Make cannabis available for scientific, medical, industrial, and research purposes.”
And prop215 the Compassionate Use Act has it’s own purpose (C) which reads “(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
I cannot imagine how a court can decide that prop 215 or prop 19 if passed would actually encourage a local government to limit safe and affordable access to medical cannabis. It goes against what the purposes of both this initiatives.
2. Rick Says:
August 8th, 2010 at 2:05 pm
I have read the initiative quite a number of times, including the version initially submitted as well as versions posted on various pro-marijuana websites which contain incorrect section numbering. Did you read my post? Or did you stop after seeing the part where I said there was a potential for conflict and just decide to give your uneducated opinion at that point?
There are a couple of things worth mentioning in response to your comments:
1. I am a practicing attorney. I have defended a large number of people who have been prosecuted under laws which were written for some other purpose than the purpose for which they were being prosecuted.
2. I have absolutely no doubt that the people who drafted and support Proposition 19 would not want the law to be used in a way contrary to what they desire. Governments don’t always honor the desires of voters, though. (I certainly hope this is not a surprise to you!) Thus, when voters are considering initiatives, they must educate themselves about the initiatives and consider the potential interaction with other statutes, including prior initiatives which they’ve passed, to ensure they don’t accidentally provide governmental agents with a way to undo what the voters believed they were doing.
3. The stated purposes of an initiative do not constitute the law; they provide some rationale for understanding why the voters might have supported the law. They are useful in helping to interpret the law (but see more below on this). Laws state or imply things like “do this,” “do not do that,” “this shall happen,” “this may happen,” “this shall not happen,” “this should not happen,” etc. 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.
4. You could go farther than simply pointing out purposes 6 and 12 in Proposition 19′s text. Purpose 7 tries to be even better. Among other things, it appears to state that even if a city opts out of the “Proposition 19 plan,” then the old rules implemented through the CUA and MMPA still allow medical marijuana patients to exceed the limits that ordinary citizens are allowed under Proposition 19. But there are two thoughts that come to my lawyer’s mind in considering this language.
a. The first is that we’re talking about one of the “Purposes” of the Act. In other words, we’re not talking about part of the actual “this is what you can/must do” of the proposed statutes. Not everything that is included in an Act has an impact on how the law will be interpreted. (For example, courts have discussed how the “Title” of an Act may, or may not, impact the interpretation of the law contained within the Act. (Moore v. Williams (1912) 19 Cal.App. 600, 609 [127 P. 509].)) I’m not going to build an exhaustive list, but if you look at cases which interpret statutes, you will see that not a few contain an Opinion of the Court and, additionally, either a Concurrence, or a Dissent, or both. In one such case, a Concurrence took issue with the idea that “‘we may not properly interpret [an initiative] measure in a way that the electorate did not contemplate’ and that we must, therefore, look first to the electorate’s ‘purpose.’” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 119 [980 P.2d 433] (conc. opn. of Werdegar, J.).) Justice Werdegar denied that this was true and said, “At times this will, indeed, mean that the law has consequences the voters did not specifically ‘contemplate.’” (Ibid.) So it is entirely possible that because of the “plain language” of the proposed legislation, someone will make a determination with which you disagree. Someone in power. Someone whose interpretation results in the law having consequences the voters did not consider.
b. Specific to that last point — again, thinking like a lawyer — does this mean that if a city chooses not to opt in to the Proposition 19 plan, then medical marijuana patients continue to enjoy the greater protections of the CUA and MMPA, but if the city decides that it will opt in, they don’t? Because that’s how the plain language of the stated purpose appears to read.
5. There are cities and counties that do not approve of the loosening of laws relating to marijuana. (Indeed, Proposition 19 even tries to accommodate them, by allowing them to decide or not decide what to do about controlling, regulating, licensing, etc. It merely provides a base below which cities and counties, apparently, cannot go if/when they do decide to control, regulate, license, etc.) In some of these cities and counties, even with medical marijuana laws in place, the purposes of which were to make it easier for patients to get medicine, those cities and counties have passed ordinances which have the effect of making it more difficult for patients to get medicine.
6. I spoke with a marijuana doctor recently who appeared to approve of the idea of controlling and limiting the growing and distribution of marijuana “to ensure the quality of the medicine.” I can easily imagine some city or county passing regulations which, to most of us, would look like it makes it harder to get marijuana, but which the city or county argues is necessary to ensure the safety of its citizens, including marijuana patients.
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.
You are, of course, free to disagree. But the fact that we have this disagreement is actually further evidence that there could be such a problem. What if a judge looks at it the same way I’ve done?
215forLife
Member
dagnabit... did you actually sit in on the council meeting? Because I did. And they said $600 and $900 not blank... it was blank before the meeting because they settled on it during it.
The city can't tax grows regardless if 19 passes or not. Because 215 says NO TAXES! The only gov agency that tax is required to be paid to for income from medical cannabis in California is the IRS aka the Feds... They cashed my tax check knowing damn well what it was for. The BOE for years refused to collect sales tax on weed because of the LAO report on 215 that was part of official ballot materials that stated there would be no taxes. I do have a BOE sellers permit and guess what I have paid a dime of sales tax to the state of California... Why?? Because it's illegal and we both (the state and I) know it.
The city can't tax grows regardless if 19 passes or not. Because 215 says NO TAXES! The only gov agency that tax is required to be paid to for income from medical cannabis in California is the IRS aka the Feds... They cashed my tax check knowing damn well what it was for. The BOE for years refused to collect sales tax on weed because of the LAO report on 215 that was part of official ballot materials that stated there would be no taxes. I do have a BOE sellers permit and guess what I have paid a dime of sales tax to the state of California... Why?? Because it's illegal and we both (the state and I) know it.
its been handled several times...after midnight if no one else has posted the ENTIRE quote from the prop(clears it right up) i will for now
COOKIES AND NOOKIE!!!!!!!
context matters. i was responding to a specific post by JJScorpio where he was talking about what he would and wouldn't sign onto. i was making a comparison.
both props create a regulatory framework of sime kind involving marijuana. I made no more far reaching statement than that.
lol
soooo the proposal reads "regardless" and actually mentions 215 grows as well....
but you worry over a "blank"
you can misrepresent what RC is doing but its going after ALL grows not just 19
there was nothing "grouchy" about my post to you..
i was polite...
i guess thin skin is rampant arround here.
i notice you say my credibility is in question..
but i post the actual proposals we are discussing to back my credibility...
what do you offer other than conjecture and opinion?
maybe you could post up an article by "dragonfly" to boost credibility
lol grouch!!!!
(waves cane) "GET OFF MY LAWN"!!!
yes, but answering it anyway.
If prop 19 had passed before prop 215 I probably would never have been charged with a felony. My situation was particular to myself, but I can imagine had prop 19 passed 10 years ago I wouldn't have done a lot of stupid stuff.
I was curious if there was any specific penalty for "faking" needs for MMJ. I've never heard of any, but there must be. You would have to be the biggest dumb ass to be charged I think.
I was curious if there was any specific penalty for "faking" needs for MMJ. I've never heard of any, but there must be. You would have to be the biggest dumb ass to be charged I think.
Thanks man! not because of the view...for posting this in multiple places so now we get multiple discussions going on about the same thing. I see something in this thread..i respond...in your other thread, someone post the same thing the last guy said...now we got to post again. Its like that Dragon fly chicks crap.
BigBudBill
Member
Dragonfly's article is like a virus. A bad baaad virus.
If you can't tell this is a good thing you need to put down the pipe. Or pick it back up. Whichever you're not currently doing. Because you need a new perspective.
The facts are coming out in favor of 19. The rampant speculation about "what if" could all be applicable now with or without this passing.
The simple fact is that over the course of only a few years (especially if there are polarizing events) public opinion diverges wildly.
Why not get another notch in our belt before they decide to start tugging on it again and we lose our leeway?
The facts are coming out in favor of 19. The rampant speculation about "what if" could all be applicable now with or without this passing.
The simple fact is that over the course of only a few years (especially if there are polarizing events) public opinion diverges wildly.
Why not get another notch in our belt before they decide to start tugging on it again and we lose our leeway?
wow those taxes are scary. 19 is full of sneaky shit like this...more regulations than we already have...
I guess I will try this one more time. I thought that there would be a bit more of a reaction the first time that I brought it up. Lot's of the people running under 215 are justifying it because of the supposed intent of the prop as defined by the bold, black statement below. They universally ignore the portion that I put in bold red font. To me, as a result of pride of position, this was the target group that the proposition was written for. The catch all phrase was meant to keep other illnesses from being excluded for seriously ill Californians, not to include every possible ailment for the entire population. And more importantly, this is what average Californian was voting for when 215 was enacted. Capitalizing on the loophole has gotten us to where we are today. It is time to take another step in broadening the acceptance of the plant, and to drive another wedge into the Fed's telling the states what they can do. Vote yes on 19.
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