Thursday, May 30, 2019
Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement
I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.) In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I." In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."
In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief. Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:
This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.
Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:
The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses. I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”). The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.
Prior related posts:
- Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
- "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
- Could a high-profile lawsuit help end federal marijuana prohibition?
- Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition
- Federal judge dismisses high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act
May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 29, 2019
Last year, an intermediate appellate court in Arizona ruled that a medical marijuana patient could still be criminal prosecuted for possession of hashish because, in the court's view, the Arizona Medical Marijuana Act retained a distinction between cannabis and marijuana and preserved the criminality of the former. But yesterday, in Arizona v. Jones, No. CR-18-0370-PR (Ariz. May 28, 2019) (available here), the Arizona Supreme Court ruled unanimously that "AMMA’s definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish." Here is an excerpt from the tail end of the opinion:
AMMA appeared on the 2010 ballot as Proposition 203. The accompanying ballot materials stated Proposition 203’s purpose was to “protect patients with debilitating medical conditions . . . from arrest and prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010 Publicity Pamphlet 73 (2010). Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including “cancer, glaucoma, . . . amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of Alzheimer’s disease,” including “relief [from] nausea, vomiting and other side effects of drugs” used to treat debilitating conditions. Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form. Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount....
We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA. We reverse the trial court’s ruling denying Jones’s motion to dismiss, vacate the court of appeals’ opinion, and vacate Jones’s convictions and sentences.
Tuesday, May 28, 2019
Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization
Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs. The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:
In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.
The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.
The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress. The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue. Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.
This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."
Sunday, February 17, 2019
As reported in this local article, headlined "Norfolk judges unite to block prosecutor from dropping marijuana cases," a fascinating tussle has broken out as an elected prosecutor tries to move away from criminally prosecuting marijuana offenders. Here are the details:
The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.
On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.
For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.
The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....
In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.
This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”
On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.
Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.
Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond.
“I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”
Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.
Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.
Lots can be said on the substance of the decisions being made by the city prosecutor and city judges in this case, but I will be content for now (1) to note that broad prosecutorial discretion in charging (and not charging) is the norm, and (2) to wonder aloud how prosecutions could or would move forward in these cases if city prosecutors refuse to be involved. And, finally, this story highlights yet again how disparate marijuana enforcement seems to be everywhere and how interesting legal issues surrounds all kinds of modern marijuana reform efforts.
February 17, 2019 in Campaigns, elections and public officials concerning reforms, Court Rulings, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Friday, November 16, 2018
Ohio judge finds unconstitutional state law requiring some medical marijuana licenses go to minority-owned businesses
As reported in this local article, this week "a Franklin County judge threw out a state law requiring that at least 15 percent of cultivation licenses go to businesses owned or controlled by African Americans, Asians, American Indians, Hispanics or Latinos." Here is more on the ruling and reactions thereto:
The Ohio Department of Commerce, the state agency that awards cultivation licenses, will have to decide whether to comply with Franklin County Common Pleas Judge Charles A. Schneider’s Thursday decision and award provisional cultivation licenses to white-owned businesses that scored higher in the review process -- including Greenleaf Gardens, LLC, which challenged the constitutionality of the law in court. Greenleaf Gardens had planned for a large-scale medical marijuana grow operation in Geauga County.
The state could also decide whether to throw out previously awarded licenses to two minority-owned and -controlled businesses that scored lower, although Greenleaf’s attorney wrote in court filings the company did not want that. Commerce can also appeal the decision to a higher court. “We are reviewing the judge’s ruling and considering next steps,” said Kerry Francis, the Department of Commerce’s spokeswoman.
Schneider’s decision only affects part of Ohio’s medical marijuana law, and leaves the rest of it intact.
Greenleaf CEO David Neundorfer said he’s pleased with the court’s ruling. The company has licenses in other parts of the nascent medical marijuana program....
Greenleaf Gardens sued after the Department of Commerce announced recipients of the provisional cultivation licenses, nearly a year ago. It received the 12th highest score among cultivation applicants but did not receive one of the 12 licenses for a large-scale cultivator. The department instead gave licenses to two lower scoring applicants, Parma Wellness Center, LLC and Harvest Grows, LLC.
The Department of Commerce argued it was following Ohio’s medical marijuana law, including provisions the Ohio General Assembly created that not less than 15 percent of cultivator, processor or laboratory licenses be given to entities owned and controlled by Ohio residents who are members of an economically disadvantaged group. The law lists each racial and ethnic group and states that “owned and controlled” means at least 51 percent of the business or business stock is owned by people in the groups....
Harvest Grows argued in a brief that Ohio for nearly 40 years has remedied discrimination in government licensing through set-asides for minority businesses. Hundreds of studies have shown that without the set-asides, “government funds have been, and will be, used in a discriminatory fashion.” It noted that blacks are more than four times more likely than non-minorities to be arrested for marijuana possession, even though studies show marijuana use is almost the same. “The legislature knew about these issues when it created the 15 percent set-aside at issue in this case," Harvest Grows wrote.
The judge, however, sided with Greenleaf Gardens. Schneider relied on a 2003 U.S. Supreme Court case that said a way to examine these issues is by looking at whether there is a compelling governmental interest for racial classification and whether the set-aside is narrowly tailored to achieve the goal.
Schneider wrote that there is a lack of “sufficient evidence of a government compelling interest" because the only evidence the legislature considered were marijuana crime arrests. He wrote that the state didn’t look at arrest rates for racial groups outside of blacks and Latinos, and discrimination in arrest rates and marijuana businesses are different....
The marijuana law’s provisions were different from specifications in Ohio’s Minority Business Enterprise Program, he concluded. And other states' encouragement of minority businesses in their medical marijuana programs were different from Ohio’s, such as Illinois giving minority businesses more points during scoring, not after scoring.
“If the legislature sought to rectify the elevated arrest rates for African Americans and Latinos/Hispanics possessing marijuana, the correction should have been giving preference to those companies owned by former arrestees and convicts, not a range of economically disadvantaged individuals, including preferences for unrelated races like Native Americans and Asians,” he wrote.
The full opinion in Pharmacann Ohio v. Ohio Department of Commerce, 17-CV-10962-Grant-SJ (Ohio Common Pleas Nov. 15, 2018), is available here: Download Pharmacann v. Ohio 17-CV-10962-Grant-SJ
Thursday, November 1, 2018
The title of this post is the headline of this new Reuters article. Here are the interesting details:
Mexico’s Supreme Court on Wednesday ruled that an absolute ban on recreational use of marijuana was unconstitutional, effectively leaving it to lawmakers to regulate consumption of the drug.
Announcing it had found in favor of two legal challenges filed against prohibition of recreational marijuana use, Mexico’s top court crossed the threshold needed to create jurisprudence: five similar rulings on the matter. That creates a precedent other Mexican courts will have to follow.
“This is a historic day,” Fernando Belaunzaran, an advocate of drug reform and member of the opposition leftist Party of the Democratic Revolution (PRD), said.
The Supreme Court made its first ruling to allow a group of people to grow marijuana for personal use in November 2015. In a statement, the court said the ruling did not create an absolute right to use marijuana and that consumption of certain substances could still be subject to regulation. “But the effects caused by marijuana do not justify an absolute prohibition on its consumption,” it said.
The court ordered federal health regulator COFEPRIS to authorize people seeking the right to use marijuana to do so personally, “albeit without allowing them to market it, or use other narcotics or psychotropic drugs.” Congress would now have to act to regulate the use of marijuana in Mexico, Belaunzaran said.
Tuesday, September 18, 2018
Top court in South Africa rules that privacy rights protects adult use of marijuana in private places
As reported in this BBC article, "South Africa's highest court has legalised the use of cannabis by adults in private places." Here is more about a major ruling for marijuana reform:
In a unanimous ruling, judges also legalised the growing of marijuana for private consumption.
South Africa's government had opposed its legalisation, arguing the drug was "harmful" to people's health. It has not yet commented on the ruling, which is binding.
Three cannabis users who had faced prosecution for using the drug brought the case, saying the ban "intrudes unjustifiably into their private spheres".
In his judgement, Deputy Chief Justice Raymond Zondo said: "It will not be a criminal offence for an adult person to use or be in possession of cannabis in private for his or her personal consumption." It will, however, remain illegal to use cannabis in public, and to sell and supply it....
This judgement is a reminder that South Africa's hard-won constitution is among the most liberal in the world, backing individual rights, and in this case the right to grow and smoke your own marijuana in private, against the government's concerns about public health and public order.
The Constitutional Court's ruling focuses on the issue of privacy, and a person's right to do as they please in their own home. The potential implications of the binding judgment are enormous, and unpredictable - particularly in terms of the criminal justice system, which routinely locks up thousands of overwhelmingly poor South Africans for using or dealing in small amounts of cannabis.
It is possible that the ruling, by allowing users to grow their own marijuana at home, could undermine the stranglehold of powerful drug gangs that blight so many communities. But the police, who argued against this change, will worry that the ruling will create more ambiguity and send the wrong signal to criminals.
The court has not approved - in any form - the trade in marijuana, meaning the government will not be able to profit from taxing a legalised industry.
In political terms, the landmark ruling emphasises the primacy of South Africa's constitution, which brushed aside the united opposition of numerous government ministries at a time when the authority and credibility of many of this young democracy's other institutions have been eroded by corruption and poor governance.
The court gave parliament 24 months to change the law to reflect its ruling. Adults who used marijuana in private would be protected by the ruling until the law was amended.
The court did not specify the quantity of cannabis a person can grow or use in private. Parliament would have to decide on this, it said.
The full opinion in this case, Minister of Justice and Constitutional Development v Gareth Prince, is available at this link, and here is a key paragraph from its introduction:
It is declared that, with effect from the date of the handing down of this judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private
Friday, September 14, 2018
Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider
A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post. There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:
Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law. He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary. In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch. However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered. A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.
Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction. We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.
Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:
I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification. The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.
By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint. At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests. See Gonzales v. Raich, 545 U.S. 1, 29 (2005). But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3. The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.
One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920). The jury’s power to nullify has ancient roots, dating back to pre-colonial England. See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)). It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel. See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994). From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).
Cross-posted at Marijuana Law, Policy and Reform.
Tuesday, July 31, 2018
Constitutional Court in the country of Georgia holds marijuana consumption is protected by the right to free personality
Though I am surely losing something in the translation of Georgian web pages here and here, I am still sure a ruling by Georgia's Constitutional Court this week is a big deal. This press report, headlined "Georgian Court Abolishes Fines For Marijuana Consumption," provides these details:
Georgia's Constitutional Court has abolished administrative punishments for the consumption of marijuana, making the Caucasus country the first former Soviet republic to legalize usage of the drug.
The ruling by four senior court judges on July 30 concerns only the consumption of cannabis, while cultivation and selling remain a crime, the court said in its ruling. It added that punishing a person for consuming cannabis would comply with the constitution only if consumption put a third party at risk.
"According to the applicants [Zurab Japaridze and Vakhtang Megrelishvili], the consumption of marijuana is not an act of social threat. In particular, it can only harm the user's health, making that user him/herself responsible for the outcome. The responsibility for such actions does not cause dangerous consequences for the public," the court said.
"The Constitutional Court highlights the imposition of responsibility of marijuana consumption when it creates a threat to third parties. For instance, the court will justify responsibility when marijuana is consumed in educational institutions, public places, such as on public transport, and in the presence of children,” it added....
Japaridze told reporters the ruling was a victory for a freer Georgia. "This wasn't a fight for cannabis. This was a fight for freedom," he said.
In late November, the Constitutional Court decriminalized use of marijuana or other forms of cannabis-based drugs but preserved administrative punishment, such as a fine, for marijuana use. Before that, Georgia's Criminal Code defined repetitive use of marijuana and possession of more than 70 grams of dried cannabis as a crime for which individuals could face punishment that does not include imprisonment.
It is striking and somewhat telling that now a former Soviet satellite republic that still shares a border with Russia now has more progressive protections for fee use of marijuana than does the US of A. One might hope that those who preach freedom in the US would take a lesson from this ruling, but I suspect that few know for sure where Georgia is on the map and fewer still will know it now constitutionally protects the freedom to consume marijuana more than does the US government or its federal courts.
Wednesday, June 27, 2018
With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
The Supreme Court generated a lot of news today, in part by reversing a significant precedent concerning labor unions and in part through Justice Antony Kennedy's retirement announcement. So what does this have to do with marijuana law, policy and reform you might ask? And I would answer with one case cite: Gonzales v. Raich, 545 U.S. 1 (2005) (opinion here, wikipedia entry here).
Raich is the case in which all the liberal members of the Supreme Court all rejected the claim by Angel Raich that the federal government should not have the constitutional power to criminalize her backyard cultivation and use of medical marijuana in compliance with California law. Of course, the liberal members of the Court were not the only ones who rejected Raich's claim that the Commerce Clause should not be read to allow the federal government to criminalize what she grows in her own backyard: joining the liberals voting in favor of broad federal power here were Justice Antonin Scalia (now deceased) and Justice Anthony Kennedy (now about to retire).
Based on a number of his opinions to date, there are lots of reasons to suspect that new Justice Neil Gorsuch, who replaced Justice Scalia, would be a vote for the Angel Raiches of the world against broad federal power. In addition, there are lots of reasons to suspect that whomever Prez Trump selects to replace Justice Kennedy will also be an advocate for limited federal legislative powers. (This accounting alone does not make obvious that Raich could be overturned, as Justice Samuel Alito might be more a fan of broad federal criminal powers than was the Justice he replaced, Justice Sandra Day O'Connor. It is also unclear where Chief Justice John Roberts would come out on these issues, too.)
Personnel change is the main reason I am inclined to suggest a "new" Supreme Court might be inclined to reconsider Raich, but I am also eager to highlight how changing political, social and medical knowledge may also incline the Court to reconsider a past ruling. Changes circumstances are always a formal and informal influence on the strength of stare decisis, and gosh knows there have been a whole lot of changed circumstances in the marijuana space since Raich was decided in 2005.
So, put simply in the form of a call to Raich's lawyer, where is Randy Barnett when marijuana reformers need him?
Tuesday, June 26, 2018
SCOTUS provides a good new First Amendment precedent for doctors interested in recommending marijuana
The modern state medical marijuana laws owe part of their structure to critical lower federal court rulings about the First Amendment's protection of doctors who wish to discuss marijuana use with patients. In the late 1990s after California voters passed the nation's first medical marijuana law, the federal government threatened physicians who recommended or prescribed a Schedule I drug with possible revocation of DEA registration and exclusion from Medicare and Medicaid reimbursements. But this threat was thwarted through litigation which culminated in a ruling by the U.S. Court of Appeals for the Ninth Circuit holding that physicians’ First Amendment freedom of speech rights under the privileged doctor-patient relationship permitted them to issue medical marijuana recommendations. The Ninth Circuit's ruling in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), has provided a key foundation for modern medical marijuana regimes, but the firmness of that foundation could be questioned because the US Supreme Court has never addressed this issue directly.
As of this morning, the Supreme Court still has not addressed this issue directly, but it has now ruled in National Institute of Family and Life Advocates v. Becerra, available here, that the First Amendment limits what states can tell doctors and other health professional to say or not say. Here is part of a fascinating passage (which even mentions medical marijuana, with my emphasis added) extolling the importance of broad constitutional protections in this realm:
As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F.3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:
“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted).
Further, when the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9). Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.
Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit's work in Conant v. Walters would be undermined anytime soon. But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professionals can talk to patients about marijuana. This new SCOTUS precedent would seem to limit such efforts.
Thursday, June 14, 2018
Maine Supreme Court rules federal prohibition preempts effort to make employer subsidize an employee’s medical marijuana
As reported in this AP article, "Maine employers don’t have to pay for medical marijuana under the state workers’ compensation system because federal law supersedes state law, the state supreme court ruled Thursday." Here is more on this state court ruling and some national context:
The court concluded in a 5-2 decision that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state medical marijuana law. Existing case law demonstrates that an individual’s right to use medical marijuana under state law “cannot be converted into a sword that would require another party” to engage in conduct that violates current federal law, Justice Jeffrey Hjelm wrote for the majority.
The legal case focused on whether a paper mill must pay for medical marijuana prescribed for a worker who was disabled after being hurt on the job in 1989. Madawaska resident Gaetan Bourgoin won an appeal to the Workers’ Compensation Board after arguing that marijuana is cheaper and safer than narcotics. But the Twin Rivers Paper Co. argued that it shouldn’t be required to cover the cost of medical marijuana and that doing so put it in violation of federal law.
The Supreme Judicial Court concluded that the Maine Legislature’s exemption of medical marijuana patients from prosecution under state law “does not have the power to change or restrict the application of federal law that positively conflicts with state law.”
Two dissenting justices wrote that the compelling story of how the injured worker was weaned from opioids by use of medical marijuana justified requiring the reimbursement. “The result of the court’s opinion today is to deprive (the worker) of reimbursement for medication that has finally given him relief from his chronic pain, and to perhaps force him to return to the use of opioids and other drugs...,” Justice Joseph Jabar wrote....
At least five states — Connecticut, Maine, Minnesota, New Jersey and New Mexico — have found medical marijuana treatment is reimbursable under their workers’ compensation laws, according to the National Council for Compensation Insurance. Florida and North Dakota, meanwhile, passed laws last year excluding medical marijuana treatment from workers’ compensation reimbursement.
The full 50-page Maine Supreme Judicial Court ruling is available at this link. Here is how the majority opinion gets started:
After sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain. He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the medical marijuana. On this appeal from the decision of the Appellate Division affirming that award, we are called upon for the first time to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA). We conclude that in the narrow circumstances of this case — where an employer is subject to an order that would require it to subsidize an employee’s acquisition of medical marijuana — there is a positive conflict between federal and state law, and as a result, the CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate Division.
Saturday, May 26, 2018
As reported in this local article, a "Leon County circuit court judge ruled Friday afternoon that the state’s ban on smoking medical marijuana is unconstitutional, setting up continued legal fights as the state appeals the decision." Here is more about the ruling:
In a 22-page order, Judge Karen Gievers said that the Legislature's ban on smoking medical cannabis conflicted with the intent of a constitutional amendment that had broadly legalized the drug for medical use after voters approved it in 2016.
She concurred with arguments made last Wednesday by Jon Mills, an attorney for the plaintiffs, contending the definition approved by voters included "all types of medical marijuana," including forms that can be smoked. Mills had also argued that the amendment implicitly recognized smoking in private by recognizing that there was no right to smoke it in public places.
Gievers, in striking down the ban, invoked both George Washington and Thomas Jefferson in her decision and highlighted Washington's characterization of the constitution as a "sacred obligation."
"Just as no person is above the law, the legislature must heed the constitutional rights Floridians placed in the Constitution in 2016," she wrote. "The conflicting, overreaching 2017 statute, while presumably adopted in good faith and with good intentions, cannot be allowed to overrule the authority of the people to protect rights in the Constitution."
Devin Galetta, a spokesman for the state Department of Health, said it would appeal the verdict, resulting in an automatic stay. The notice of the appeal was filed Friday night. "This ruling goes against what the legislature outlined when they wrote and approved Florida’s law to implement the constitutional amendment that was approved by an overwhelmingly bipartisan majority," he wrote.
About 71 percent of Florida voters had approved Amendment 2 in 2016, authorizing the use of marijuana as a medical treatment for people with debilitating conditions. But in a bill implementing the amendment the following year, lawmakers limited the scope of its use to only oils, sprays, tinctures, vaping and edibles. Lawmakers excluded smoking as a method for medical treatment, arguing that smoking would be a "backdoor attempt" at allowing recreational use.
Gievers heard arguments in a one-day trial last week for the case, which was brought against the state last July by John Morgan, an Orlando attorney who also financed the campaign behind the successful constitutional amendment. His suit, filed on behalf of two patients and two advocacy organizations, asked the court to invalidate the implementing law passed by the Florida Legislature and signed by Gov. Rick Scott.
Ben Pollara, who managed the political campaign that helped push the constitutional amendment, said the ruling was a victory both for Florida patients and for voters who supported the amendment.... "The voters of Florida wanted this," he said. "It was clear in the intent language and in the ballot language. ... Smoked marijuana is the most effective and quickest delivery system, period."
He cautioned that Scott, who is running for the U.S. Senate, should reconsider continuing to fight for the smoking ban. "What I would say to Rick Scott and [Attorney General] Pam Bondi is, 'If you decide to appeal this verdict, I think Rick Scott will lose the U.S. Senate race on this issue alone,' " he said.
The full ruling in this case is available at this link.
Thursday, May 24, 2018
This new article by Joshua Horn and Jesse M. Harris in the Legal Intelligencer provides a useful reminder of how much law (and well as policy) is unpredictable in the modern marijuana universe. The piece is headlined " Cannabis and Banks: What Qualifies as Illegal Activity? Many legal issues arise out of financing cannabis activities, not the least of which is whether a target property for a cannabis venture is mortgaged by a bank." Here is how the piece starts and ends:
Many legal issues arise out of financing cannabis activities, not the least of which is whether a target property for a cannabis venture is mortgaged by a bank. The standard institutional mortgage contains language that allows the mortgagee to “call” the loan if the property is being used to conduct “illegal activity.” This language relates to federal lending guidelines and is usually nonnegotiable. The question thus becomes: what qualifies as “illegal activity”?
As a general matter, a contract for an illegal purpose is unenforceable. And while 29 states have passed some form of marijuana legislation, marijuana remains a controlled substance under federal law. The interplay between state and federal law has left the status of the marijuana industry — and the rights of involved lenders and borrowers — unclear. Several recent cases highlight this ambiguity....
At bottom, there are no black and white answers when it comes to the enforceability of marijuana-related agreements — only gray. For this reason, most lenders outright refuse to enter into such agreements. This is particularly true for mortgage loan originators who underwrite a new loan with the intention of immediately selling it to investors like FHA, Fannie Mae or Freddie Mac. As government entities, such investors will not accept marijuana-related contracts.
Other lenders, often called “portfolio lenders,” keep a certain number of loans in their portfolio instead of selling to investors. Portfolio lenders thus assume the risks associated with lending to marijuana-related business. And, because portfolio lenders assume the risk, they have greater discretion in deciding whether to extend credit to a cannabis-related entity. Depending on the jurisdiction, sophisticated borrowers may have better luck in persuading these lenders to do just that.
Wednesday, May 23, 2018
Arizona Supreme Court strikes down state legislation prohibiting medical marijuana on college campus as inconsistent with voter initiative
The Arizona Supreme Court has issued a series of opinions giving broad effect to the Arizona Medical Marijuana Act, which was enacted by voters as Proposition 203 in 2010. The latest example of such an opinion was handed down today in Arizona v. Maestas, No. CR-17-0193-PR (Az. May 23, 2018) (available here). Here is the first paragraph and key substantive paragraphs from the ruling:
The Arizona Medical Marijuana Act (“AMMA”), enacted by voters as Proposition 203 in 2010, generally permits qualified AMMA cardholders to possess a limited amount of marijuana and, with certain exceptions and limitations, immunizes their AMMA-compliant possession or use from “arrest, prosecution or penalty in any manner.” A.R.S. § 36-2811(B). Among its limitations, the AMMA prohibits the possession or use of medical marijuana at certain specified locations. A.R.S. § 36-2802(B). In 2012, the Arizona Legislature added another location by enacting a statute under which “a person, including [a qualified AMMA cardholder], may not lawfully possess or use marijuana on the campus of any public university, college, community college or postsecondary educational institution.” A.R.S. § 15-108(A). Because that statute violates Arizona’s Voter Protection Act (“VPA”) with respect to AMMA-compliant marijuana possession or use, we hold it unconstitutional as applied to the university student/cardholder in this case....
To comply with the VPA, the legislature may constitutionally amend a voter initiative only if “the amending legislation furthers the purposes of such measure and at least three-fourths of the members of each house of the legislature . . . vote to amend such measure.” Ariz. Const. art. 4, pt. 1, § 1(6)(C) . Here, “at least three-fourths of the members of each house of the legislature” voted to enact § 15-108(A). Id. The dispositive question, therefore, is whether § 15-108(A) “furthers the purposes” of the AMMA. Id. It does not.
The AMMA “permits those who meet statutory conditions to [possess and] use medical marijuana.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122 ¶ 7 (2015). “Because marijuana possession and use are otherwise illegal in Arizona, . . . the drafters [of the AMMA] sought to ensure that those using marijuana pursuant to [the] AMMA would not be penalized for such use.” Id. Indeed, this purpose is made explicit in the AMMA’s voter initiative statements. See Proposition 203 § 2(G) (2010) (stating that the purpose of the AMMA “is to protect patients with debilitating medical conditions . . . from arrest and prosecution, [and] criminal and other penalties . . . if such patients engage in the medical use of marijuana”). Criminalizing AMMA-compliant marijuana possession or use on public college and university campuses plainly does not further the AMMA’s primary purpose as expressed in those statements supporting the voter initiative. Section 15-108(A) does not “protect” qualifying AMMA cardholders from criminal penalties arising from AMMA-compliant marijuana possession or use on public college and university campuses, but rather subjects them to such penalties. Therefore, because § 15-108(A) does not further the purpose of the AMMA, we hold that § 15-108(A) violates the VPA as applied to AMMA-compliant marijuana possession or use.
Monday, May 14, 2018
The US Supreme Court handed down this morning an important case about the relationship between federal prohibitions and state laws in Murphy v. NCAA, No. 16–476 (S. Ct. May 14, 2018). (available here). The case is directly about sports betting laws in New Jersey, but the final substantive paragraphs of the Court's majority opinion (authored by Justice Alito) should make clear why marijuana reform advocates will be heartened by the ruling:
The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.
The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens, New York, 505 U. S., at 166. The Constitution gives Congress no such power.
Monday, February 26, 2018
Federal judge dismisses high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act
Earlier this month, as noted in this prior post, a federal district judge heard arguments concerning a motion to dismiss the high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act. Though the suit garnered a good bit of public attention, the case of Washington, et.al v. Sessions, et.al, is now likely to go down as yet the latest failed effort to attack the CSA's treatment of marijuana in court because today judge Alvin Hellerstein dismissed the lawsuit. Tom Angell has a useful summary of the ruling and a link to its full 20 pages here. Here is part of that summary:
Judge Alvin K. Hellerstein ruled on Monday that advocates have “failed to exhaust their administrative remedies” to alter cannabis’s legal status, and should pursue changes through the administration and Congress instead of in the courts. “[P]laintiffs’ claim is an administrative one, not one premised on the constitution,” he wrote, and “is best understood as a collateral attack on the various administrative determinations not to reclassify marijuana into a different drug schedule.”...
Hellerstein wrote that “it is clear that Congress had a rational basis for classifying marijuana in Schedule I, and executive officials in different administrations have consistently retained its placement there… Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule I.”
However, the judge, who observers say appeared moved by anecdotes about the plaintiffs’ medical uses of cannabis during oral arguments, wrote that he does not reject out of hand the notion that marijuana can be beneficial....
Hellerstein dismissed every other claim in the lawsuit, as well, making it clear he’s done with the case. “Because plaintiffs have failed to state a claim under any constitutional theory, all of plaintiffs’ remaining claims are also dismissed,” he wrote. “For the reasons stated herein, defendants’ motion to dismiss the complaint is granted. Plaintiffs have already amended their complaint once, and I find that further amendments would be futile.”
The plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines. I am not optimistic it would achieve much else, but one never knows with courts these days.
Prior related posts:
- Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
- "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
- Could a high-profile lawsuit help end federal marijuana prohibition?
- Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition
Tuesday, October 31, 2017
Split New Jersey appeals court holds state officials can (and should?) consider reclassifying marijuana under state drug schedules
The Appellate Division of the Superior Court of New Jersey issued an interesting opinion today in Kadonsky v. Lee, No. A-3324-14T4 (N.J. App. Oct 31, 2017) (available here), resolving a appeal of the denial of a petition "seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV" under New Jersey laws. The majority remanded the case, explaining that reconsideration of marijuana's scheduling could be done under existing laws:
While this issue is not squarely before us, it is certainly ripe for a determination by the Director. When the inconsistencies of sections (a) and (c) of N.J.S.A. 24:21-3 are viewed through the prism of the dicta in Tate, we conclude that the Director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law.
The dissenting opinion starts with an effective account of the ruling and the judges' disagreements:
The question presented by this appeal is whether, as a result of evolving attitudes about marijuana and its potential for medical uses, the Director of the Division of Consumer Affairs was required to reschedule marijuana, removing it from Schedule I of the New Jersey Controlled Dangerous Substances Act (CDSA), N.J.S.A. 24:21-1 to -56. The Director's decision that he was required, instead, to control marijuana in accord with federal schedules is subject to limited appellate review. Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J. 1, 9 (2009). In light of the unambiguous language of N.J.S.A. 24:21-3(c) that the Director adhere to federal schedules, his decision must be sustained because there is no "'clear showing' that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record." Ibid.
My colleagues conclude the Director erred in his interpretation of the law but do not conclude the Director's decision was arbitrary, capricious or unreasonable or consider that a fair interpretation of the governing statute provides support for his decision. They have elected to decide an issue they acknowledge "is not squarely before us." Despite the clear directive in N.J.S.A. 24:21-3(c), the majority concludes the Director may reconsider the classification of marijuana, placing it on a schedule different from its designation on the federal schedules and, because the issue is "ripe for determination" by the Director, remands the issue for his consideration.
The necessary premise for this conclusion is that the Director has the discretion to make a major policy decision regarding the scheduling of marijuana that directly conflicts with the legislative mandate contained in N.J.S.A. 24:21-3(c) and federal law. That premise cannot withstand the application of established principles of statutory construction.
Tuesday, September 19, 2017
Massachusetts top court addresses challenging issues surrounding marijuana and proof of impaired driving
The Massachusetts Supreme Judicial Court this morning issued a unanimous opinion in Commonwealth v. Gerhardt, No. SJC-11967 (Mass. Sept. 19, 2017) (available here), which addresses matters of proof of marijuana-impaired driving. This Boston Herald account of the ruling provides a punny summary in its headline: "SJC spliffs the difference in marijuana OUI case." Here is how the actual opinion gets started:
In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs -- the "horizontal gaze nystagmus test," the "walk and turn test" and the "one leg stand test" -- during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.
By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.
The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer's observations of what will be described as "roadside assessments" shall be without any statement as to whether the driver's performance would have been deemed a "pass" or a "fail," or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.
Wednesday, August 9, 2017
Cross-posted at Marijuana Law, Policy, and Authority
I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. (John and I have both previously written about the Trump Administration’s approach to marijuana policy, e.g., here and here.)
Nonetheless, given Jeff Sessions’ stated opposition to legalizing marijuana, I think it’s worthwhile to consider what (if anything) the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities state lawmakers might consider:
1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.
Why would states ever do this? Individual defendants sometimes lack the ability and / or incentive to optimally (from the state’s perspective) defend themselves against federal claims. For one thing, defendants don't always have the money needed to pursue every viable defense vigorously, especially if their assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses -- once established -- can be invoked by other, similarly situated defendants.
To illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of my book), but there’s no guarantee she’ll win – say, because the First Circuit might not follow United States v. McIntoshand the Ninth Circuit’s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state – it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants’ legal expenses (say, using a portion of marijuana tax revenues).
I develop this first proposal in more detail in a symposium article for the Montana Law Review here. It’s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.
2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms. Some state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress's goals, like deterring drug use. Citing such reasoning, for example, a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681 of the book). To defuse the threat that a court would find such measures preempted, a state could pass a second law – one that Congress clearly favors – and then tie the two laws (favored and disfavored) together – i.e., make them inseverable.
To illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287 of the book). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit non-resident access to marijuana.
I develop this second proposal in more detail in a new article for the George Washington Law Review here. It’s very loosely modeled on the poison pill tactic in corporate law.
Part of the appeal of both options is that their success does not depend on the DOJ’s willingness to heed past enforcement guidelines or Congress’s willingness to restrict the agency’s spending.
August 9, 2017 in Court Rulings, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)