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Toke It Easy, Man: More on Proposition 19

My last post, “Blowing Smoke: Proposition 19 & Medical Marijuana,” has perhaps drawn more readers than just about any other post I’ve written (including “A Drowning Man”).

Some comments indicate an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to undo the protections of the existing rights of medical marijuana patients.

This post, therefore, is another attempt to focus attention on that point and explain why, regardless of the intentions of Proposition 19 proponents, Proposition 19 may contain within it the seeds to undoing, at least in part, what was accomplished with Proposition 215, the Compassionate Use Act, which legalized marijuana in California for medical patients who needed it.

I am left with the impression that, like the original writers of Proposition 19, many commenters believe that governments will willingly acquiesce to both the stated intentions of Proposition 19 and what they believe are the wishes of the voters. This does not always happen. This is why, in the old days, laws were written by lawyers with particular experience writing laws. Writing laws is a science which aims at ensuring that the laws themselves are not susceptible to misinterpretation or misapplication. It is not simply a matter of knowing something about marijuana — e.g., how it is used, grown, transported, sold, or otherwise operates in the real world — and knowing the goals that you are after. It’s also about knowing how laws work, or don’t.

There actually are people in the world who want their particular point of view to control what happens, regardless of what you, me, or anyone else may wish.

Please understand, my questioning of Proposition 19 is not aimed at trying to prevent the legalization of marijuana; i.e., I am not trying to shoot down Proposition 19 in order to prevent what its proponents wish will happen. Quite the contrary, I firmly believe that marijuana should be legalized. I personally have never benefited from marijuana (except as an attorney who gets paid to defend people who try to utilize it in accordance with medical marijuana objectives and laws). I don’t use it. But I know numerous people who do, including some about whom I care very much.

Even if there were not people about whom I care very much who use it, I would want it legalized. At heart, I am libertarian. I believe government should be as small as possible and regulate our lives as little as possible. I would be quite happy in a world with very, very few laws and only think those directly related to discouraging and punishing harmful activities should exist.

Nor do I have ulterior motives because I sometimes make money defending medical marijuana patients. 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, either.

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.

Because, as I said, there are people who do not share my views, who want their views to be controlling, regardless of any law that might try to prevent them from doing so, I have concerns.

Some commenters to my previous post make a lot of noise about “the intent” of Proposition 19. Their statements about the intent of Proposition 19 appear to be accurate. I don’t know that I’ve ever denied that, or that anyone has heard me object that people making arguments about “what the intent is” are wrong.

I am pointing out that intent is not enough.

I practice law in Fresno, California. My practice covers Fresno, Tulare, Kings and sometimes (ugh) Madera counties. These are some of the most conservative counties in California. In the “red state/blue state” drawing of maps, if all California were like the counties in which I live, California would be red, not blue. The deepest, darkest red.

Law enforcement, government officials, and ordinary citizens in our area who do not “appreciate” marijuana, who do not like marijuana, do not care what the intent of Proposition 215, (possibly) the MMPA, and the now-proposed Proposition 19 may be. They do not want marijuana in their backyard; they do not want marijuana in your backyard; they do not want marijuana in anyone’s backyard.

Growing it indoors doesn’t change the equation much.

It is important that any proposition intending to legalize marijuana keep this in mind. Laws that intend to do things that those with power do not want done are not automatically successful. Look at the civil rights war if you want a lesson on that issue. Forget intent: laws requiring the integration of schools in the South during the 1960s were seldom effective in and of themselves.

I know. I lived there.

So when one of my commenters, Dag, valiantly and with voluminous quotation of Proposition 19 and other texts attempts to argue for the intentof the Proposition, he misses my point.

I know, I know. People hate to hear that they’ve missed the point. The response is, “No! I did not miss the point! I tried to show you that the point is wrong!

Okay. You missed the point. You cannot use the language, which I have already acknowledged, stating what the intent of the law is, to counter my argument that the intent of the law is not enough to protect against those who do not like what the law intends. While the intent of the law is important to those of us who wish to see that intent followed, it is irrelevant to those who do not.

More importantly, while the intent of the law assists in helping to interpret the law, the intent of the law is not the law. This is the primary weakness of Proposition 19. A lot of time and “ink” (so to speak) may have been spent on laying out the intent of the law. If the plain language of the law itself allows something contrary to the intent, there is a problem.

One point proponents of Proposition 19’s “intent” miss is this: the laws to be implemented by the Proposition do not only “limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis”; they also introduce their own limitations relating to possession, transportation, cultivation, consumption and sale of cannabis.

Furthermore, one glaring statement of Proposition 19 should serve to demonstrate that — as far as its intent — it hopes to do that which cannot be done. The Proposition states that, among other things, it intends to limit “application and enforcement of state and local laws” which might be passed in the future. This is something that simply cannot be done.

Think about that. A law is passed today. That law states that any other laws that the legislature, voters, or anyone else may wish to pass regarding its subject matter in the future are intended to be limited by the law which is passed today. Thus, for now and forever, anyone trying to pass any law that hasn’t even been thought of as being necessary today cannot get it passed in the future when it is decided that it is necessary? Or that this today law intends to limit that future, as yet unthought-of, law? No matter what it might be? Good or bad? And we believe someone is going to be bound by that?

Not even the United States Constitution does that. While the Constitution does limit what governments can do — and, despite the stupidity of anti-gay-marriage assholes, it also limits what voters can do — it does not limit the ability to pass laws in the future which will be contrary to the Constitution. It simply requires that before that can be done, we would have to amend the Constitution to allow such laws.

Even that isn’t always required, as far as our government is concerned. Consider that our elected officials properly believed a constitutional amendment was required to make alcohol illegal, but decided no such amendment was needed to make marijuana (and other drugs) illegal. Consider the fact that the Constitution is ignored by our government, particularly when it comes to the so-called War on Drugs, on a daily basis. The War on Drugs is the number one reason for the desecration, the shredding, the loss of the protections of our Constitution and its Bill of Rights.

And we think this drug law will be different because it contains a lengthy statement of intent? If anything, history should teach us that a law that intends to remove a drug from the list of targets in this long-running, empire-building, military-industrial-complex-driven war would need to be as careful and specific as possible in stating what the law itself will be.

But I digress.

Dag states, among other things, that “since there is no specific language exempting 215 from the intent to limit clause 215 is unaffected.” This is patently false.

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.

Among other things, the Medical Marijuana Program Act, or MMPA, caused all medical marijuana users who wished to take advantage of the Compassionate Use Act and theoretically avoid arrest to register with the government. Now, I know, some people don’t care about their privacy. They don’t care if the government puts cameras everywhere, quietly asks for information on their Internet use, or keeps track of who smokes dope. After all, as long as you aren’t doing anything illegal, you shouldn’t even care if the government posts a tape recorder and video camera inside your car and home just to be sure, right?

The second thing the MMPA tried to do was place limits on medical marijuana users which the Compassionate Use Act had not done. The Compassionate Use Act said medical marijuana users could possess or grow amounts reasonably necessary for treating their medical issues. The legislature thought that was “too vague,” so limitations were added by the MMPA. That some patients needed more than the limits allowed was irrelevant. Fortunately, the California Supreme Court overturned that limit in People v. Kelly (2010) 47 Cal.4th 1008 [222 P.3d 186].

Do not think this means that Dag and the others are right. Do not think this means “intent wins.” That is not what the Kelly Court said when it removed the limitations the MMPA had created. The Kelly Court looked at the actual wording of the law itself. The Kelly Court noted that the Compassionate Use Act could not be modified by the legislature without the approval of voters.That’s how initiatives work in California. Unless the initiative itself allows the legislature to change what the initiative allows, the legislature cannot do so. Since the Compassionate Use Act did not give permission for modification, the legislature could not modify it.

As it turned out, the Compassionate Use Act actually specified a limit to how much marijuana could be grown and possessed. The limit was the amount reasonably needed by the patient. So when the MMPA tried to limit that to a specific amount, that was an illegal modification of the Compassionate Use Act.

Proposition 19 specifically undoes that. 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.

Remember, Kelly did not stop the legislative attempt to limit quantities of marijuana that medical marijuana users could grow, possess, or transport because the limitations were contrary to the intent of the Compassionate Use Act. Kelly stopped the legislature because of the wording of the law itself, which had already provided a limit on quantity.

The concern I am raising about Proposition 19 is not that it has bad intentions. It doesn’t. It has good intentions. But the proposed law was apparently written by someone who fails to completely grasp the ways in which those who do not approve of marijuana might try to legally thwart that intent.

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.

And the mere fact that my argument — even if you don’t like it — makes sense shows that this is a danger. When — not if — some local government tries to pass an ordinance that effectively makes it difficult, or impossible, to grow or obtain medical marijuana, some court could very well look at this the same way I just did.

I hope they don’t, but there’s nothing in Proposition 19 that prevents it.

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