Tuesday, December 5, 2017

Missouri Rejects A Right To Farm Marijuana

The Missouri Supreme Court rejected this defense

Mark Shanklin appeals from a judgment convicting him of producing more than five grams of marijuana, possession of more than five grams of marijuana with intent to distribute, and possession of drug paraphernalia. Shanklin argues the statutes prohibiting marijuana cultivation and possession are unconstitutional as applied to him because article I, section 35 of the Missouri Constitution protects "the right of farmers and ranchers to engage in farming and ranching practices." Article I, section 35 protects the right to engage in lawful farming and ranching practices. It does not create a new constitutional right to engage in the illegal drug trade. The circuit court's judgment is affirmed.

St. Louis City police detectives went to Shanklin's residence after a "utility inquiry" showed excessive electricity use consistent with marijuana cultivation. Shanklin answered the door and consented to a search. Police discovered more than 300 live marijuana plants. Police also discovered several hundred grams of packaged marijuana, a mesh dryer, and a digital scale commonly used to prepare and package marijuana for distribution. Shanklin told police he was growing marijuana to help pay off his stepchildren's debts and for his own use.

As to the Right to Farm

The operative clause of article I, section 35 provides "the right of farmers and ranchers to engage in farming and ranching practices shall forever be guaranteed" in order "[t]o protect this vital sector of Missouri's economy," subject to local government regulation as authorized by article VI of the Missouri Constitution. When a constitutional provision includes prefatory and operative language, "[l]ogic demands that there be a link between the stated purpose and the command." District of Columbia v. Heller, 554 U.S. 570, 577 (2008). The scope of constitutionally protected farming and ranching practices is, therefore, informed by the prefatory clause of article I, section 35, as including those practices that are part of the agricultural sector of Missouri's economy. The amendment includes no language suggesting Missouri voters intended to nullify or curtail longstanding laws regulating or prohibiting possession, cultivation, and harvest of controlled substances. See United States v. White Plume, 447 F.3d 1067, 1074 (8th Cir. 2006). Further, because the amendment expressly recognizes farming and ranching practices are subject to local government regulation, it would be absurd to conclude Missouri voters intended to implicitly nullify or curtail state and federal regulatory authority over the illegal drug trade. The plain, ordinary, and natural meaning of article I, section 35 demonstrates no purpose to sub silentio repeal laws criminalizing the cultivation or possession of controlled substances.

When the General Assembly passed a joint resolution proposing article I, section 35, and Missouri voters adopted it, marijuana cultivation, possession, and distribution had been illegal in Missouri for decades. It necessarily follows that Shanklin's marijuana cultivation operation was not a farming practice to be protected by article I, section 35. Therefore, Shanklin failed to meet his burden of proving ยงยง 195.211 and 195.017 were clearly and undoubtedly unconstitutional on their face or as applied to him.

(Mike Frisch)


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