(found on the modesto bee's web site: http://thehive.modbee.com/node/20404 ~ FOR MORE INPUT FROM MARIJUANA ATTORNEYS ABOUT PROP. 19, click here: http://palmspringsbum.org/blog/2010/09/what-marijuana-lawyers-have-to-say-about-californias-proposition-19/)
Submitted by letitiapepper on Thu, 2010-08-19 16:52.
Dragonfly's analysis has been trashed on the Internet by pro-Prop. 19 bloggers. So I did my own analysis as to whether Prop. 19 would change the laws related to medical marijuana, and in my opinion she's absolutely correct.
I have been an attorney for almost 30 years. I went to Hastings College of the Law, one of California’s top schools, was on the Hastings Law Journal, and have more than 20 years of experience working as a judicial research attorney for the State of California and for the federal district court. I prepared draft opinions in which I presented, from a neutral rather than adversarial perspective, the applicable laws and facts, with conclusions about final results/consequences. (I even once worked (from 1984 to 1987) as a business and municipal law litigation associate at Best, Best & Krieger (yep, the same law firm that’s been advising lots of cities to ban medical marijuana (MM) collectives).)
So, I’m well-qualified to review Prop. 19. Plus, I had a reason to do so.
Two years ago, I became a medical marijuana patient after terrible problems with side effects from prescription medications and after doing research on cannabis. Since I am convinced that marijuana is the non-prescription answer for many diseases, including mine (multiple sclerosis), I want to be able to grow my own medication, and to be able to experiment with and make as many different variants of cannabis-based medications as possible.
Based on my expertise and review of prop. 19, I can now state, categorically, that if Proposition 19 passes, it WILL affect medical marijuana patients and collectives. It will limit patients to tiny grow areas -- one per parcel, not one per patient -- and allow cities to legally ban collectives (the current bans are, in my opinion, illegal). And it will probably cause the price of marijuana to go up, put the profits from marijuana into the hands of a few large businesses instead of a lot of small businesses, and, depending on the goodwill of politicians in Santa Cruz, put compassionate collective groups like the Wo/Man’s collective out of business. But let’s skip speculation about how decreased competition affects prices, and just stick to whether or not, as a matter of alw, Prop. 19 will change patients’ rights under the Compassionate Use Act, Health & Safety Code section 11362.5 (“the CUA”).
Inititatives like Prop. 19 are reviewed by courts using specific rules, generally known as rules of statutory interpretation. Under those rules, any arguments or statements by Chris Conrad or Russ Belville, or the flyers handed put by the pro-Prop. 19 people that claim medical marijuana patients won’t be affected, have no relevance. Instead, it’s the actual language of Prop. 19 that counts. (Get the complete text at http://ballotpedia.org/wiki/index.php/Complete_text_of_The_Regulate,_Control_and_Tax_Cannabis_Act_of_2010_(California). Only if the text is ambiguous will a court look any further than the text – and then only at certain items, such as ballot summaries -- not at general commentary by people like Conrad and Belville.
To see for yourself how Prop. 19 changes medical marijuana patients’ and collectives’ rights, look at the language of Prop. 19 and the official ballot summary. (The ballot summary is at http://ballotpedia.org/wiki/index.php/Ballot_titles,_summaries_and_fiscal_statements_for_California_2010_ballot_propositions#Proposition_19.) First, note that the official ballot summary does not mention medical marijuana (MM), or MM patients and collectives, at all. Does that mean Prop. 19 is not intended to affect laws that relate to medical marijuana? No. Does it mean Prop. 19 IS intended to affect MM or patients? No. It’s just neutral. So, now let’s look at the text of Prop. 19.
Section 1, the name, is pretty straightforward. “This Act shall be known as the “Regulate, Control and Tax Cannabis Act of 2010.” Notice it does not distinguish between cannabis used recreationally or medicinally. So, based on the name, it MIGHT affect patients by regulating, controlling and taxing marijuana used by patients. (By the way, aren’t the pro-Prop. 19 people referring to this as the “legalize, tax and regulate” proposition? I think the actual text doesn’t say that, because, in reality, cannabis is ALREADY legal in California as a medicine. So it wouldn’t have been truthful or accurate to claim, in the official ballot proposition, that Prop. 19 is going to legalize marijuana . . . . .)
Section 2, A., “Findings,” doesn’t mention MM or MM patients at all. It doesn’t say anything about the fact that marijuana is actually a very useful medicine, which people also use as a recreational drug.
Section 2, B., the “Purposes” section, at paragraph 1, states that one of the Proposition’s purposes is to “reform cannabis laws in a way that will benefit our state.” The law that relates to MM and MM patients is the Compassionate Use Act (CUA), H & S Code section 11362.5. Is section 11362.5 a “cannabis law”? Of course it is. So paragraph 1 indicates that one purpose of Prop. 19 is to reform cannabis laws – which include 11362.5. So a court would say, well, here’s some evidence that Prop. 19 might be intended to affect the Compassionate Use Act -- and thereby affect medical marijuana patients. But how? The court would have to keep reading the text to see.
Section 2, B, “Purposes” at paragraph 3, states that another intent is to create a legal regulatory framework to give California more control over, among other things, cultivation and distribution of cannabis. MM patients currently have a right to cultivate and distribute under the CUA. Because paragraph 3’s language applies to all cultivation and distribution without any exception, it seems it is intended to apply to cultivation and distribution of all cannabis, including by MM patients, and to cultivation and distribution by everyone, including patient collectives. As noted earlier, Prop. 19 makes no distinction between recreational and medicinal use.
Paragraph 6 of “Purposes” then specifically refers to patients and cannabis for medical purposes – so this makes it clear the Proposition is intended to affect MM and patients. How? Only to make access safer and easier, it says -- but not cheaper. I guess access will be safer and easier if you can buy from Big Weed, Inc. instead of growing it yourself, or getting it from a collective. But it will be more expensive for patients who have been allowed to grow as much as they need, because instead of being allowed to grow quantities large enough for each person’s medical problems, and/or to share collectively, Prop. 19 severely limits everyone’s rights to cultivate and distribute.
Paragraph 7 says that if cities ban the sale of cannabis, their citizens “still have the right to possess and consume small amounts, except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.” This language could be interpreted to mean that, under 11362.5, MM patients continue to have the right to possess and consume larger quantities than Proposition 19’s ounce limit. But notice that Paragraph 7 specifically leaves out the right to cultivate. Why? This is a very meaningful omission of an existing right held by MM patients. Under Prop. 19, everyone becomes a mere consumer, a captive market to be exploited by a few businesses that get the permits to cultivate and distribute.
Under current law, H & S11362.5, subdivision (d), specifically exempts MM patients from H & S 11358 which makes cultivation illegal. Under the People v. Kelly case, MM patients have no numeric cap on what they can grow, just a requirement that it be related to a medical issue. Will the right to cultivate amounts related to medical issues be changed under Prop. 19? Yes. Here’s why.
Look at the text of Prop. 19, Section 2 (B), paragraph 14. It says that one purpose of Prop. 19 is to “Permit the cultivation of small amounts of cannabis for personal consumption.” We already know the “small amounts” are what can be grown in a 25 square foot garden (that’s 5 by 5 feet) – and that however many people live on a property will have to share that small space. So that is a really small amount.
Notice that section 14 says nothing about allowing the cultivation of larger amounts for medical use.
Don’t give up reading yet -- we’re getting to the smoking gun evidence that Prop. 19 has ALWAYS been INTENDED to affect medical marijuana patients and collectives, and was intentionally worded in a way to allow the pro-Prop. 19 people to make claims, OUTSIDE THE TEXT OF THE CONTROLLING LEGAL DOCUMENT, WHERE SUCH CLAIMS CAN’T BE USED TO INTERPRET THE PROPOSITION, that it doesn’t affect medical marijuana patients.
In Section 2 (C), “Intent,” paragraph 1 lists all the existing laws that Prop. 19 is intended to affect, and paragraph 2 lists all the laws it is NOT intended to affect. Here’s the important point:
Neither paragraph 1 nor paragraph 2 mention the Compassionate Use Act (CUA), which is found in H & S Code section 11362.5. If the Prop. 19 people really did not intend to affect patients and collectives, they would have included section 11362.5 in paragraph 2. They didn’t.
Now, since the Pro-Prop. 19 people clearly need the support of MM patients, they obviously did not want to include the CUA and H & S section 11362.5 in paragraph 1 and admit that Prop. 19 will affect patients. So that’s why Prop. 19 is silent about 11362.5, the CUA. The pro-Prop. 19 people are counting on the average voter not knowing anything about statutory interpretation rules. Under those rules, if Prop. 19 had specifically stated in Section 2, “Intent,” that it was NOT intended to affect H & S 11362.5, then the courts would interpret it as not affecting 11362.5. But because the intent section is silent, the courts will look at the language of the proposition to figure out the intent. And as noted above, the Purposes section at paragraphs 6 and 7, already provides evidence that the Proposition is intended to affect MM and MM patients.
Why would the Prop. 19 people set things up like this? This is no accident; a lot of attorney work and money went into drafting this thing to accomplish the desired results – results presumably desired by Richard Lee and friends. Why would they want to be sure that patients’ current rights to grow and distribute are SEVERLY limited, while running around telling efveryone they are not affected?
Well, in addition to being potential voting support for Prop. 15, MM patients also reflect a LARGE and VALUABLE potential market share for the “commercial cannabis industry” this proposition is intended to create. It is going to be contrary to the commercial interests of whoever wants to create a “commercial cannabis industry” to let such a large group of potential cannabis consumers continue to cultivate and share with each other, via the collective system, cannabis – instead of being FORCED TO BUY IT FROM THE “COMMERCIAL CANNABIS INDUSTRY.”
Prop. 19 is clearly aimed at reducing competition by restricting who can cultivate and distribute.
Prop. 19, if passed, will be interpreted as affecting patients and collectives because the Prop. 19 folks intentionally chose not to specify that it was NOT intended to affect patients in Section 2, “Intent.”
So why are the pro-Prop.19 lying about what it will do? Something sneaky’s going on.