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What Could Go Wrong?: Still More on Proposition 19

In Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason), Neil MacCormick notes that:

It is a well-recognized truism that even the most carefully drafted and detailed text can never convey a fully determinate meaning for all possible purposes.[1]

This is as true of what I’ve been writing lately on Proposition 19 as it is of Proposition 19 itself.

Before I go on, I want to note that a number of individuals have been in contact with me more-or-less “privately,” in addition to in the comments to my last two articles on Proposition 19. Many of these people are anti-Proposition-19 and have found some validation in the articles I’ve been writing.

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.

As I said in “Blowing Smoke: Proposition 19 & Medical Marijuana,” I think Proposition 215 being passed has caused more people to develop a favorable attitude towards legalization generally. So it could happen that even ifProposition 19 is flawed, passing it would eventually — perhaps even within one election cycle — get us to where we might “really” want to be.

I also want to re-focus readers on the “even if” of that last sentence. I wrote in my second article on the topic, “Toke It Easy, Man: More on Proposition 19,” that

[I]t 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.[2]

I don’t think I’ve ever said that it definitely is a step backwards. However, I have noticed that in trying to defend my position, I’ve started to slip over the line to thinking that it is a step backwards.

To the extent that I may have slipped over that line, I want to back up again. I do not know that Proposition 19 is, in fact, going to erase the gains made in California as concerns medical marijuana law. There are good reasons for believing, at the state level, Proposition 19 would not erase the gains made. It’s the right-wing conservative provincial wannabe hick parts of the state — basically where I practice criminal defense — that I’m worried about.

So what am I saying here?

I believe I’m saying the same thing I stated in my other articles: I have concerns about the potential ways in which Proposition 19 could be abused by those who do not agree with the majority.

The majority which passed Proposition 215 may have agreed on their intent. And the majority of proponents of Proposition 19 may also agree on theirintent. At least, the drafters of 19 and their followers may agree on their intent.

But I doubt it, partly because I agree with the William Nelson Cromwell Professor of Law and Associate Dean for Curriculum at Stanford Law School, Jane S. Schacter. In a 1995 law review article titled “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy,” she stated:

It is fallacious to ascribe meaningful intentionality to a multimember body.[3]

Some supporters of Proposition 19, not happy with how Proposition 215 has allowed for the development of collective farms, cooperatives and dispensaries in their locale, may wish to see Proposition 19 passed so that they can try to carve out a little “pot-free” city. Maybe their thinking is,

Let’s allow the rest of California to go to pot. But if we vote for this Proposition, it says local governments can decide for themselves. We could prevent the evil weed from being available in our city!

Using arguments I raised in my previous articles, maybe they could do this.

And the “intent” argument those who disagree with me promote doesn’t necessarily prevent this. Part of the reason it doesn’t is that we don’t even really know what the courts will think the “intent” of the voters, as opposed to the promoters, was on this issue.

There is plenty of language — for a court that wishes to accept the point — that the drafters of Proposition 19 intend a loosening of laws relating to marijuana. The drafters do not appear to wish to see Proposition 19 reverse the gains of Proposition 215, either deliberately or accidentally.

For example, under proposed subsection “B. Purposes,” both items number 7 and 8 suggest that the permissive aspects of Health & Safety Code sections 11362.5 and 11362.7 through 11362.9 would not be affected. The specific language is not the infamous “notwithstanding any other law” phrase that Richard Lee tried to point me towards. In both places, after suggesting what would be illegal, or what limitations a city could place, the respective Purposes state:

…except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safety Code.

But Proposition 19 is a long and complex piece of legislation. And as I previously noted, it contains laws applicable to private individuals (proposed H&S section 11300) and laws applicable to commercial activities (proposed H&S section 11301). For reasons given previously, I continue to be unconcerned about the impact of 11300 upon medical marijuana patients’ rights; it is 11301 which concerns me.

Even under current law, cooperatives and dispensaries are technically commercial in nature. As also previously discussed, the fact that currentlaw arguably allows them — at least cooperatives — to exist hasn’t stopped local governments from trying to shut them down via local zoning ordinances or public nuisance laws. Now comes section 11301 which (I’ve said this all before) supersedes the laws implemented by the CUA and MMPA because it is an initiative of the people (thus not susceptible to being struck down as a portion of the MMPA was in People v. Kelly) and because it is later in time.

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. They are using a variety of media, including rallies — one was just held in Anaheim yesterday — as well as advertising. But as Schacter’s study noted:

[C]ourts widely ignore media and advertising as sources of popular intent even though…social science research about voter behavior in ballot campaigns suggests that voters most regularly consult and seek guidance from these sources.[4]


[C]ourts widely subject citizen-lawmakers to the same standards as legislators and generally confine their search to sources commonly used in construing legislative law.[5]

The one exception, Schacter notes, is “official ballot materials prepared in connection with proposed initiatives.”[6] Even there, however, precedence is given to the statutory language contained within the initiative.[7] Ironically, this is the part of the ballot materials most often ignored by voters.[8] Furthermore, California courts only rely on ballot materials to decipher “intent” 53% of the time.[9]

No matter how you slice it, the sources for judicial interpretation of Proposition 19’s “intent” — should the need arise — are primarily going to be the normal, formal, texts, such as the law itself and other laws or treatises the courts deem relevant. And here, the “intent” is ambiguous. 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.”

Both those latter intentions or purposes or whatever you want to call them — for they come in the actual text of the proposed laws themselves — put a set of brakes on the intent to loosen and the purpose to legalize with restrictions and conditions. Both recognize and make allowances for the possibility that a local government may be hostile to the basic stated intent and purpose of Proposition 19.

Okay. So where does that leave us?

I think it leaves us with potentially most of the rights conferred upon medical marijuana patients intact. At least when it comes to what they, themselves, do. 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. (On the plus side, Proposition 19 allows what I call “one-way amendments”: they can loosen any limits Proposition 19 specified, but they cannot be more restrictive. Thus, if the Legislature had the political will and stamina, they could possibly stop local governments from passing restrictive ordinances. But then we get into a whole new ball of wax regarding what requirements the Legislature can place on cities, which generally have some say over how they govern themselves. This article is long enough already.)

The bottom line, though, is that none of my articles should be taken as stating — as one commenter asked — that Proposition 19 is terminally flawed. As I noted in my own response to her, I don’t think that I’d go that far. I do worry that there are potential issues we should be looking at more closely.

Lastly, I intend perhaps a couple or so more articles on Proposition 19. So if you’ve found what I have to say interesting, stay tuned. Now that I have a copy of what will be going out in the Official Voter Information Guide, I’m going through it all more carefully.

If you ask me, both the Proponents and the Opponents are trying to mislead voters.

  1. Neil MacCormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason) (2005) 122.
  2. Emphasis in the original.
  3. Jane S. Schacter, “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy” (1995) 105 Yale Law Journal 107, 124. She went on to point out that the courts don’t get this; the rhetoric of judicial interpretation still endorses the idea of some monolithic “voter intent” when it comes to initiatives and is even stronger concerning the multimember legislative bodies.
  4. Schacter, supra, at 111.
  5. Id. at 120.
  6. Ibid.
  7. Id. at 130.
  8. Ibid. As Schacter also here notes, even ballot materials are usually ignored by voters!
  9. Id. at 122.