Yesterday, I drove to downtown San Francisco — something which, on a weekday, is definitely not on my list of favorite things to do — to the Hiram W. Johnson State Building for a meeting of the Voluntary Committee of Lawyers.  The topic of discussion was Marijuana & Federalism: California a Test Case: The Legal Implications of Proposition 19. 1)At the time of this blog post, the VCL main page advertised the conference, so I linked it.  As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was.

The meeting was somewhat informative, but when it came to addressing questions of significant concern to my medical marijuana clients, I guess I’d have to say there was a lot of smoke being blown — and it didn’t come from any high-quality buds.

The meeting was, in many senses, quite informative.  Speakers included Assemblymember Tom Ammiano from the 13th District of California, a number of attorneys working for various organizations that deal with drug policies, and even the Sheriff of Mendocino County, Thomas D. Allman.

One question that did not receive a full answer, though, had to do with the intersection of Proposition 19 and California’s current medical marijuana laws.  I attempted to ask the question, but I stood up too late.  I was waiting, under the erroneous assumption that someone would address this important issue without provocation.  However, once I realized that the mantra of the people presenting was that Proposition 19 was either not going to impact medical marijuana users, or that it would improve things for them, and that apparently they subscribed to the theory that if you repeat something often enough, that alone makes it true, I decided to ask my question.

As I said, though, I was too late; I didn’t get the chance to pose my question publicly.

Fortunately — or so I thought —  Richard Lee, the so-called “grandfather of the medical marijuana movement,” was present.  Surely, he can answer my question.

I stopped Mr. Lee as we were leaving the meeting.  I introduced myself.  He shook my hand and I asked my question.  “How will Proposition 19’s proposed limitations on amounts people can own or cultivate impact current medical marijuana laws?”  Perhaps — and based on the responses of Mr. Lee and the two people accompanying him, I suspect this is the case — he’s grown tired of hearing this question.  Perhaps he was in a hurry.  Maybe he just always comes across as irritated and angry.

Perhaps he just needed to chill and toke before being able to fully appreciate my question.  I don’t know.  I’m just trying to be charitable.

Suffice it to say that Mr. Lee immediately began trying to move on, as he barked out that the language of the initiative, wherein it states, “Notwithstanding any other provision of law…,” meant that Proposition 19 would not negatively impact existing laws.

A woman accompanying him, who I believe may have been Christine Wagner, smilingly shoved some cards at me and referred me to “the FAQ on our website” for more information.

The card indicates Christine Wagner is a lawyer, which gave me hope, because surely an attorney would not point me to an answer that wasn’t an answer, would she?  Well, maybe!

Not.  The most comprehensive answer I can find on the website is nothing more than a slightly-more-clear restatement of the same bald assertions barked at me by the retreating and muttering Mr. Lee.

I’m sure you can tell I not only felt I did not get an answer to my question, but I was almost as irritated by the encounter as Mr. Lee.

The problem here, though, is not — or at least not so much — that I felt I was given a rather rude brush-off.  The problem, as I said, is that the FAQ provides no more information than was shouted over their shoulders as Mr. Lee’s group hustled down the street.  Mr. Lee appeared to be angrily muttering about “these questions.”  He’s obviously grown tired of them.

“These questions,” however, are important.  The way Proposition 19 reads, “these questions” are not addressed.  In fact, Proposition 19 appears to be capable of undoing all the work those promoting medical marijuana have done to enable patients to receive their medication without suffering consequences under California’s criminal laws.

I think it’s quite likely that Proposition 19 will trump California’s medical marijuana laws and allow local municipalities to apply restrictions that, thus far, they have been blocked from implementing by the combination of the Compassionate Use Act and the California Supreme Court.

Here’s why:

Mr. Lee and his compatriots tried to say — in the few words they threw my way — that Proposition 19 is worded to ensure that it does not impact existing law.  (I have to take it that they meant “existing medical marijuana law,” because obviously it impacts existing law.  That’s the whole point.  If it didn’t impact existing law, it wouldn’t “legalize marijuana.”)

In fact, Proposition 19 is replete with language that says, “Notwithstanding any other provision of law….”  Mr. Lee & Co. apparently believe, based on what they told me, that “notwithstanding any other provision of law” means that if there are other laws, those other laws are not overruled, altered, erased, modified — choose your poison: they say it’s not poisonous.

Anyone who doesn’t already know the meaning of “notwithstanding” can see that this is wrong merely by grabbing the nearest dictionary.  According to Webster’s Third International Dictionary, Unabridged (2002), for example, the word means “without prevention or obstruction from or by : in spite of.”

With respect to some parts of Proposition 19, this is not necessarily a problem.  In particular — and I think this is what Mr. Lee & Co. focus upon (too much) — the proposed addition of section 11300 to Article 5 of Chapter 5 of Division 10 of the Health & Safety Code probably does not encroach upon the rights of medical marijuana users.  The reason for this depends not upon the “notwithstanding” language to which Mr. Lee & Co. tried to point me, but because the words following say, “it is lawful and shall not be a public offense under California law….”

In other words, section 11300 essentially says, “Here are some things that will be legal.”  The “notwithstanding” language has the effect of adding, “regardless of what any other law might state.”  So, take Health & Safety Code § 11357 which says,

Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).

If Proposition 19 passes, this would no longer be true, because Proposition 19 says,

Notwithstanding any other provision of law, it is lawful and shall not be a public offense…to possess, process, share or transport not more than one ounce of cannabis solely for that individual’s personal consumption, and not for sale.

Assuming it passes, Proposition 19, being the newer law, trumps 11357 on this issue.  That’s a good thing, because that’s what we want it to do.  Additionally, Proposition 19’s proposed section 11300 addition does not trump the medical marijuana laws because while 11300 basically says “regardless of what any other law says, these things are legal,” it does not say, “only these things are legal.”  In other words, 11300 provides a list of some things that are legal, regardless of whether some other law says they are not.  But it’s not necessarily the only way that things can be legal.  Lots of other things, including things allowed by the medical marijuana laws, can be legal, too.

Thus, the problem isn’t with Proposition 19’s proposed addition of section 11300 to the Health & Safety Code.

There is potentially a significant problem, however, with Proposition 19’s proposed addition of section 11301.  Ironically, the reason is that same “notwithstanding any other provision of state or local law” phrase in the proposed language.  The entire relevant portion says:

Notwithstanding any other provision of state or local law, a local government may adopt ordinances, regulations, or other acts having the force of law to control, license, regulate, permit or otherwise authorize, with conditions, the following….

Remembering the meaning of “notwithstanding any other provision of state…law,” this means “in spite of what the medical marijuana laws say, a local government may” potentially adopt restrictive rules as pertains to certain activities.  The listed activities are all the activities one needs to carry out in order to obtain, or grow, or consume medical marijuana.

Right now — at least the way I read the law — local governments cannot effectively eliminate the protections of the medical marijuana laws by passing local ordinances that “control” or “regulate” them.  If they did, I think many such ordinances would arguably constitute impermissible amendments to the Compassionate Use Act passed by the People via the initiative process — something no California government can do. 2)People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186].  Thus, rules that some counties are passing in an attempted end-run around medical marijuana laws are probably unenforceable because they are contrary to the Compassionate Use Act, the Medical Marijuana Program Act, or both. 3)Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law.  (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].)

Tulare County, for example, has passed such limiting ordinances.  Some of these ordinances have not yet been tested in court, but other portions of the Tulare County ordinances are already illegal and thus unenforceable.  For example, the ordinances include limitations on quantities of marijuana which may be possessed or cultivated.  But the California Supreme Court has already determined that this constitutes an impermissible amendment to the Compassionate Use Act. 4)People v. Kelly, supra, 47 Cal.4th at 1043.

Proposition 19, however, will allow local governments to do what the Compassionate Use Act currently forbids them from doing.  Why?  Because the Compassionate Use Act was enacted into the law by initiative: Proposition 215.  Initiatives can only be changed by the government if the initiative itself either expressly permits that, or if the Constitution is changed in some way as to alter the initiative process.  Thus, any California government is, by law,

powerless to act on its own to amend an initiative statute. Any change in this authority must come in the form of a constitutional revision or amendment to article II, section 10, subdivision (c). 5)People v. Kelly, supra, 47 Cal.4th at 1045-1046.

However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives. 6)Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].  Well, guess what?  Proposition 19 is an initiative, also!  So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.

Let me be clear about something.  I’m not trying to play “hide the ball bud” here.  There is an argument against what I just said.  One could argue that 11301 says “control, license, regulate, permit or otherwise authorize, with conditions,” and that it does not say, “forbid, prohibit, or prevent.”  One can also argue that allowing local governments to place restrictions on medical marijuana would violate the intent of the laws, because “clearly” Proposition 19 is intended to loosen up, or liberate, marijuana from the strictures of State prohibitions.  “Clearly,” with this as the intent, it would not make sense to read Proposition 19 as allowing local governments to “control” or “regulate” or place unreasonable “conditions” on medical marijuana patients, or their caregivers.

Myself, I’m not comfortable sitting around hoping that local governments “clearly” understand this.  I happen to think a well-written Proposition to legalize marijuana should explicitly state that it cannot be read in a way that restricts current medical marijuana laws.  But that’s me.  And I don’t smoke pot, so maybe what I think doesn’t count.

I guess another way to see how this plays out is to vote “yes” on Proposition 19.  And then just wait until the smoke clears.

References   [ + ]

1. At the time of this blog post, the VCL main page advertised the conference, so I linked it.  As time passes, I suspect they will change the content of that website, but it still may be useful to people to know where it was.
2. People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186].
3. Additionally, even where the local governments do not press a criminal penalty, but merely confiscate or destroy marijuana grown “out of compliance” with local ordinances, there may be recourse under the law.  (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656].)
4. People v. Kelly, supra, 47 Cal.4th at 1043.
5. People v. Kelly, supra, 47 Cal.4th at 1045-1046.
6. Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].

87 comments

  1. “the bottom line here is that I am concerned that Proposition 19 does not do enough to protect against cities and counties undoing some of the good that the CUA and MMPA have brought about”

    I agree with you RIck. I am concerned that another Prop 19 is going to come into play. Do you agree there will be another similar Proposition in the near future?

  2. “the bottom line here is that I am concerned that Proposition 19 does not do enough to protect against cities and counties undoing some of the good that the CUA and MMPA have brought about”

    I agree with you RIck. I am concerned that another Prop 19 is going to come into play. Do you agree there will be another similar Proposition in the near future?

  3. Ok, so after reading all of the above it’s easy to come to some conclusions if Prop 19 passes.

    A.) Any medical marijuana recommendation holder, will be able to continue purchasing and using Marijuana legally per the CUA.

    B.) Any medical marijuana recommendation holder, will be able to continue to personally cultivate per the CUA.

    C.) It’s possible, that some local governments will try to stop all Marijuana sales. Both Medical and Recreational. This being one of the biggest concerns I hear, is the fear that Dispensaries are in threat if Prop 19 passes (which I don’t believe will happen anyway).

    A & B are good things. Nothing to talk about.

    C. Lets take a look at what is going on now. Many cities and counties are passing ordinances trying to close down dispensaries. They are being successful at that! Time and time again the officers, judges, and city/county representatives are saying that CUA is for medical purposes, and that they are closing down these illegal operations that are not for medical purposes. They have repetitively said that the people voted the CUA in, for medical only. These officers/etc believe they are upholding the law and the will of the people.

    Taking that into consideration, what happens with these people when Prop 19 passes. The will of the people is to have Cannabis legal. Legal for any purpose (except for minors). The law would make it legal. The will of the people is for it to be legal/lawful to possess, cultivate, buy, and sell Cannabis.

    So lets circle back to the possibility of dispensaries being closed by local governments after prop 19’s passage (which again, I don’t believe will happen). So what if this happens? Natural capitalism will resolve all this. Already, several cities have put measures into play that will take the recreational sales of Cannabis. This means these cities are on board with the new tax revenue. While at first, some extremist cities and counties might not allow recreational sales, they would be fools (and so would the people of those cities and counties) to not take part in the boost in revenue for this new market. So basically, while there may be opposition at first, this will be quickly resolved in very short order.

    The #1 thing that the passage of Prop 19 will provide, is the beginning to the end of the negative stigma of Cannabis. Once the lies are torn down and there are several studies that support what we have been saying all along (it’s not bad for you, it’s good for you, has several industrial uses, etc), I believe there will be a new Green rush that will spread across our country and our world. This alone is a good enough reason to VOTE YES on PROP 19. It’s an exciting time to live.

  4. Ok, so after reading all of the above it’s easy to come to some conclusions if Prop 19 passes.

    A.) Any medical marijuana recommendation holder, will be able to continue purchasing and using Marijuana legally per the CUA.

    B.) Any medical marijuana recommendation holder, will be able to continue to personally cultivate per the CUA.

    C.) It’s possible, that some local governments will try to stop all Marijuana sales. Both Medical and Recreational. This being one of the biggest concerns I hear, is the fear that Dispensaries are in threat if Prop 19 passes (which I don’t believe will happen anyway).

    A & B are good things. Nothing to talk about.

    C. Lets take a look at what is going on now. Many cities and counties are passing ordinances trying to close down dispensaries. They are being successful at that! Time and time again the officers, judges, and city/county representatives are saying that CUA is for medical purposes, and that they are closing down these illegal operations that are not for medical purposes. They have repetitively said that the people voted the CUA in, for medical only. These officers/etc believe they are upholding the law and the will of the people.

    Taking that into consideration, what happens with these people when Prop 19 passes. The will of the people is to have Cannabis legal. Legal for any purpose (except for minors). The law would make it legal. The will of the people is for it to be legal/lawful to possess, cultivate, buy, and sell Cannabis.

    So lets circle back to the possibility of dispensaries being closed by local governments after prop 19’s passage (which again, I don’t believe will happen). So what if this happens? Natural capitalism will resolve all this. Already, several cities have put measures into play that will take the recreational sales of Cannabis. This means these cities are on board with the new tax revenue. While at first, some extremist cities and counties might not allow recreational sales, they would be fools (and so would the people of those cities and counties) to not take part in the boost in revenue for this new market. So basically, while there may be opposition at first, this will be quickly resolved in very short order.

    The #1 thing that the passage of Prop 19 will provide, is the beginning to the end of the negative stigma of Cannabis. Once the lies are torn down and there are several studies that support what we have been saying all along (it’s not bad for you, it’s good for you, has several industrial uses, etc), I believe there will be a new Green rush that will spread across our country and our world. This alone is a good enough reason to VOTE YES on PROP 19. It’s an exciting time to live.

  5. I have gone over almost all of these comments and infact read the law myself and i must say i am quite confused. The wording in the initiative is very vague and doesn’t bring anything to a point. “notwithstanding” can be read or interpreted very differently. i am confused as to how this will effect prop 215 patients. but hopefully it doesnt do anything that will ruin what has already been fought for. theres alot left to speculation and in the political world thats never a good thing.

  6. I have gone over almost all of these comments and infact read the law myself and i must say i am quite confused. The wording in the initiative is very vague and doesn’t bring anything to a point. “notwithstanding” can be read or interpreted very differently. i am confused as to how this will effect prop 215 patients. but hopefully it doesnt do anything that will ruin what has already been fought for. theres alot left to speculation and in the political world thats never a good thing.

  7. I have read the proposed law text in the voter guide and I am not convinced that this will not restrict the current rights of medical users. It does make reference to current medical cannabis use under findings intent and purposes with the phrase: “except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safty Code.”
    However, I have a big problem with the fact that this language is not repeated in the italic type section which is the actual proposed new law. WHY NOT?? It looks to me like my rights as a medical user will be retricted by this new law. I remember when 3 strikes was supposed to be for violent offenders only. I think this would be good for a state that has no medical use laws, but for our state it limits the amount we are allowed to have.

  8. I have read the proposed law text in the voter guide and I am not convinced that this will not restrict the current rights of medical users. It does make reference to current medical cannabis use under findings intent and purposes with the phrase: “except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safty Code.”
    However, I have a big problem with the fact that this language is not repeated in the italic type section which is the actual proposed new law. WHY NOT?? It looks to me like my rights as a medical user will be retricted by this new law. I remember when 3 strikes was supposed to be for violent offenders only. I think this would be good for a state that has no medical use laws, but for our state it limits the amount we are allowed to have.

  9. A Side Note If You Dont Mind…

    It seems that that there is a general consensus that if you are concerned about Prop 19 potentially limiting Patient rights then you must be making your living off medical marijuana and be doing it in an exploitive, uncompassionate way.

    Just because someone is concerned, confused, or curious about how their rights as a patient will be affected deosn’t mean they are makling their living off the medical cannabis exchange.
    More importantly, just because someone makes their living off the medical cannabis exchange doesn’t mean that they are doing it in an exploitive, uncompassionate way.

    Regardless, I don’t see how pointing out ill intentions of capitalists who oppose, support, or question a proposition which effects their economy does anything to explain, discuss, or predict gramifications of the proposition.
    Dont get me wrong, I will read it all day. Keep the info line live. I need my answers though.

  10. A Side Note If You Dont Mind…

    It seems that that there is a general consensus that if you are concerned about Prop 19 potentially limiting Patient rights then you must be making your living off medical marijuana and be doing it in an exploitive, uncompassionate way.

    Just because someone is concerned, confused, or curious about how their rights as a patient will be affected deosn’t mean they are makling their living off the medical cannabis exchange.
    More importantly, just because someone makes their living off the medical cannabis exchange doesn’t mean that they are doing it in an exploitive, uncompassionate way.

    Regardless, I don’t see how pointing out ill intentions of capitalists who oppose, support, or question a proposition which effects their economy does anything to explain, discuss, or predict gramifications of the proposition.
    Dont get me wrong, I will read it all day. Keep the info line live. I need my answers though.

  11. Kieth,

    DON’T BELIEVE THE HYPE! The facts: Prop 19 repeatedly protects patients rights, it legalizes non-medical use and it makes it harder for police to arrest patients as “not sick enough,” because if you are age 21 or above, it will be “lawful” to garden and possess marijuana. Vote Yes on Prop 19. Read Prop 19: “Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California lawfor any person 21 years of age or older to: (i) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale. ii) Cultivate, on private property by the owner, lawful occupant, or other lawful resident or guest of the private property owner or lawful occupant, cannabis plants for personal consumption only, in an area of not more than twenty-five square feet …” (11300[a]). Does Prop 215 say you can’t possess an ounce or grow a 25 square feet garden? No, it already protects medical gardens, and the courts have ruled that voters approved a reasonable amount. Does SB 420 say you can’t possess an ounce or grow a 25 square feet garden? No, it allows patients 8 ounces and 6 mature plants. Since the legislature can allow more than an ounce, and did so in SB 420; would!

    Prop 19 strike that down? No, it allows the legislature to do precisely that. Our medical use laws are protected by Prop 19, and it goes far beyond that to help all Californians, not just patients.

  12. Kieth,

    DON’T BELIEVE THE HYPE! The facts: Prop 19 repeatedly protects patients rights, it legalizes non-medical use and it makes it harder for police to arrest patients as “not sick enough,” because if you are age 21 or above, it will be “lawful” to garden and possess marijuana. Vote Yes on Prop 19. Read Prop 19: “Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California lawfor any person 21 years of age or older to: (i) Personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale. ii) Cultivate, on private property by the owner, lawful occupant, or other lawful resident or guest of the private property owner or lawful occupant, cannabis plants for personal consumption only, in an area of not more than twenty-five square feet …” (11300[a]). Does Prop 215 say you can’t possess an ounce or grow a 25 square feet garden? No, it already protects medical gardens, and the courts have ruled that voters approved a reasonable amount. Does SB 420 say you can’t possess an ounce or grow a 25 square feet garden? No, it allows patients 8 ounces and 6 mature plants. Since the legislature can allow more than an ounce, and did so in SB 420; would!

    Prop 19 strike that down? No, it allows the legislature to do precisely that. Our medical use laws are protected by Prop 19, and it goes far beyond that to help all Californians, not just patients.

  13. Yawn. You guys DO KNOW that 19 will not create taxes on medical cannabis. THAT IS ALREADY HAPPENING, silly. Look around. You can choose to be a complacent naysayer that does not want to rock the boat. or we can take the next logical step towards ending prohibition. I am not going to argue with Mr. Horowitz. I think some of his points are a bit speculative and that it is very brash to assert speculation as fact. Other points I do not think are big enough issues to take away the positives 19 affords. He has not quite hit the BULLSHITTER of the Week threshold, but he is working on it. LOL.

    You are NUTS if you believe that this will take away your medical privileges. That is a lunatic way of thinking and not even possible if all of the stars aligned just right and the right cop busted the right person on the right side of the street while the moon was in in line with Jupiter and Haley’s Comet was passing by. There is no reasonable person who would see this Initiative addressing the rights of MEDICAL users.

    What is a real possibility and danger is DOING NOTHING. YOUR ACCESS IS ALREADY UNDER ATTACK. So say you discourage the vote enough that it also allows not only 19 to fail, but for Whitman and Cooley to ride the tea party to victory. Cooley has already declared how he is going to enforce SB420. By the strictest interpretation available, or as the Judge in the Jovan Jackson case believes “only a community garden.” The collective system as we know and love will become obsolete and patients who do not have the ability or desire to collectively cultivate or know people who do will be left in the cold of the black market. Or better yet, they may repeal iSB420 all together, as the CA Legislature has already not signed a declaration that would tell the Feds to back off because many lawmakers believe our system is riddled with fraud, as “most users are able-bodied young people.” The door is closing on medical cannabis right before your eyes and you do not even see it. First they came for San Diego, but we did nothing because we were not from San Diego. Then they came for LA, but we did nothing because we did not live in LA. Then they came for Sacramento and we did nothing because we did not live in Sacramento. But then they came to our front door and demanded we cut our garden down but by that time there was nothing we could do because we were again on our own…..

    Voting NO on an initiative to increase cannabis freedom that will send a clear message to the world that the day and age of cannabis reform is here is just about the silliest shit I have ever heard, really. I cannot say how embarrassed I will be for people who let speculation and misinformation confuse them enough to vote NO on the OPPORTUNITY to make a historic vote for cannabis freedom….

  14. Yawn. You guys DO KNOW that 19 will not create taxes on medical cannabis. THAT IS ALREADY HAPPENING, silly. Look around. You can choose to be a complacent naysayer that does not want to rock the boat. or we can take the next logical step towards ending prohibition. I am not going to argue with Mr. Horowitz. I think some of his points are a bit speculative and that it is very brash to assert speculation as fact. Other points I do not think are big enough issues to take away the positives 19 affords. He has not quite hit the BULLSHITTER of the Week threshold, but he is working on it. LOL.

    You are NUTS if you believe that this will take away your medical privileges. That is a lunatic way of thinking and not even possible if all of the stars aligned just right and the right cop busted the right person on the right side of the street while the moon was in in line with Jupiter and Haley’s Comet was passing by. There is no reasonable person who would see this Initiative addressing the rights of MEDICAL users.

    What is a real possibility and danger is DOING NOTHING. YOUR ACCESS IS ALREADY UNDER ATTACK. So say you discourage the vote enough that it also allows not only 19 to fail, but for Whitman and Cooley to ride the tea party to victory. Cooley has already declared how he is going to enforce SB420. By the strictest interpretation available, or as the Judge in the Jovan Jackson case believes “only a community garden.” The collective system as we know and love will become obsolete and patients who do not have the ability or desire to collectively cultivate or know people who do will be left in the cold of the black market. Or better yet, they may repeal iSB420 all together, as the CA Legislature has already not signed a declaration that would tell the Feds to back off because many lawmakers believe our system is riddled with fraud, as “most users are able-bodied young people.” The door is closing on medical cannabis right before your eyes and you do not even see it. First they came for San Diego, but we did nothing because we were not from San Diego. Then they came for LA, but we did nothing because we did not live in LA. Then they came for Sacramento and we did nothing because we did not live in Sacramento. But then they came to our front door and demanded we cut our garden down but by that time there was nothing we could do because we were again on our own…..

    Voting NO on an initiative to increase cannabis freedom that will send a clear message to the world that the day and age of cannabis reform is here is just about the silliest shit I have ever heard, really. I cannot say how embarrassed I will be for people who let speculation and misinformation confuse them enough to vote NO on the OPPORTUNITY to make a historic vote for cannabis freedom….

  15. So, I’ve just finished reading all the regulations and stipulations on Prop 19, and being a registered Medical Marijuana user, and being 18, I’m wondering how this is going to affect me. I’m reading that I won’t be able to medicate if this passes.

    Now i’m not completely sure that i’m correct in this assumption, but I’d like to have this clarified because if it is correct, I’m going to be living in some pain for a few years.

    But then again, I have read that it will not affect Prop 215, but I can’t help but be worried about this.

    If ANYBODY could clarify for me, I would GREATLY appreciate it.

  16. So, I’ve just finished reading all the regulations and stipulations on Prop 19, and being a registered Medical Marijuana user, and being 18, I’m wondering how this is going to affect me. I’m reading that I won’t be able to medicate if this passes.

    Now i’m not completely sure that i’m correct in this assumption, but I’d like to have this clarified because if it is correct, I’m going to be living in some pain for a few years.

    But then again, I have read that it will not affect Prop 215, but I can’t help but be worried about this.

    If ANYBODY could clarify for me, I would GREATLY appreciate it.

  17. Oh and I was also wondering…the dispensaries already get taxed so how is that different to what prop 19 is going to do? Are they just going to raise taxes? I just don’t understand.

  18. Oh and I was also wondering…the dispensaries already get taxed so how is that different to what prop 19 is going to do? Are they just going to raise taxes? I just don’t understand.

  19. Hi:) I have a cannabis card and I thank you for addressing some of the issues I was wondering about. I just hope that most medical dispensaries will stay in business if prop 19 is passed. My fear is that cigar companies will get into the that kind of business and there won’t be any regulation in what goes into the buds. I do know that there are certain nutrients used to grow that are very cancerous and the dispensaries try very hard to grow the cleanest and healthiest buds so I just want to keep that if/when prop 19 passes. I know my grammar isn’t the best, but I just wanted to put in my 2 cents lol. Thanks for taking time to read this!:D

  20. Hi:) I have a cannabis card and I thank you for addressing some of the issues I was wondering about. I just hope that most medical dispensaries will stay in business if prop 19 is passed. My fear is that cigar companies will get into the that kind of business and there won’t be any regulation in what goes into the buds. I do know that there are certain nutrients used to grow that are very cancerous and the dispensaries try very hard to grow the cleanest and healthiest buds so I just want to keep that if/when prop 19 passes. I know my grammar isn’t the best, but I just wanted to put in my 2 cents lol. Thanks for taking time to read this!:D

  21. I’m not a lawyer, but I’ve heard a few legal arguments in my time … and this one simply fails to convince me on its merits. A close reading of Prop. 19, on the other hand, convinces me that Prop. 215 is not at risk should it pass.

    The greater risk to medical marijuana is the ongoing regulatory backlash in California’s cities and counties, which is nothing less than an attempted de facto repeal of Prop. 215. The Anaheim ruling was supposed to provide some clarity on whether cities may ban dispensaries, but it didn’t and so here we are. While the appellate panel’s ruling on the federal/state pre-emption issue is encouraging, it falls far short of stating that dispensaries may operate without onerous regulations.

    Ultimately, the legal arguments may have to catch up with the social and political ones. The backlash against Prop. 215 dispensaries shows many cities and counties likely would oppose Prop. 19-authorized sales of adult-use cannabis with equal or greater fervor. This desire for local control is not ignored by Prop. 19, but embraced by it as the ultimate tool for self-determination. Progressive and cannabis-friendly areas, such as Humboldt/Mendo and the Bay Area, will waste no time inventing new models for taxing and regulating non-medical cannabis. As these early efforts mature, and the notion of legal cannabis becomes commonplace in society at large, other cities and counties will slowly come online.

    In the meantime, Prop. 215 patients will have at their disposal two additional legal channels (retail sales, home cultivation) through which to obtain their cannabis. Arguing that two voter-approved laws permitting cannabis use and possession is worse than having just one law makes no sense. The only way to stop drug-war violence is to reduce the huge profits generated by cannabis growers, and the only way to do that is by making pot legal and so widely available that prices and profits fall accordingly.

    A “no” vote on Prop. 19 is a “yes” vote on cannabis prohibition and uncontrolled drug violence related to cannabis growing and distribution. The medical marijuana community suffers from guilt by association in the minds of many non-cannabis users, and in some cases that guilt is actual when dispensaries buy and sell products that aren’t Prop. 215-compliant. For medical marijuana dispensaries to achieve respectability and sustainability, a legal channel for non-medical marijuana sales must also be established.

  22. I’m not a lawyer, but I’ve heard a few legal arguments in my time … and this one simply fails to convince me on its merits. A close reading of Prop. 19, on the other hand, convinces me that Prop. 215 is not at risk should it pass.

    The greater risk to medical marijuana is the ongoing regulatory backlash in California’s cities and counties, which is nothing less than an attempted de facto repeal of Prop. 215. The Anaheim ruling was supposed to provide some clarity on whether cities may ban dispensaries, but it didn’t and so here we are. While the appellate panel’s ruling on the federal/state pre-emption issue is encouraging, it falls far short of stating that dispensaries may operate without onerous regulations.

    Ultimately, the legal arguments may have to catch up with the social and political ones. The backlash against Prop. 215 dispensaries shows many cities and counties likely would oppose Prop. 19-authorized sales of adult-use cannabis with equal or greater fervor. This desire for local control is not ignored by Prop. 19, but embraced by it as the ultimate tool for self-determination. Progressive and cannabis-friendly areas, such as Humboldt/Mendo and the Bay Area, will waste no time inventing new models for taxing and regulating non-medical cannabis. As these early efforts mature, and the notion of legal cannabis becomes commonplace in society at large, other cities and counties will slowly come online.

    In the meantime, Prop. 215 patients will have at their disposal two additional legal channels (retail sales, home cultivation) through which to obtain their cannabis. Arguing that two voter-approved laws permitting cannabis use and possession is worse than having just one law makes no sense. The only way to stop drug-war violence is to reduce the huge profits generated by cannabis growers, and the only way to do that is by making pot legal and so widely available that prices and profits fall accordingly.

    A “no” vote on Prop. 19 is a “yes” vote on cannabis prohibition and uncontrolled drug violence related to cannabis growing and distribution. The medical marijuana community suffers from guilt by association in the minds of many non-cannabis users, and in some cases that guilt is actual when dispensaries buy and sell products that aren’t Prop. 215-compliant. For medical marijuana dispensaries to achieve respectability and sustainability, a legal channel for non-medical marijuana sales must also be established.

  23. let’s concentrate on FACTS that can be PROVEN with only the tiniest bit of research and common sense.

    FACTS on how California’s “elected criminals” are already gearing up to rape, pillage and plunder the citizens who pay for their cushy office chairs and expense accounts once Prop 19 passes:

    Rancho Cordova has already passed a new ordinance that sets a $600.00 PER SQUARE FOOT OF GROW SPACE in PRIVATE HOMES for MEDICINAL USERS. This is the absolutely most immoral use of “criminally punitive taxation” against people in need that I’ve ever seen in my life! (It’s likely quite safe to assume that the “cannabis-grow-specific taxes” also hold true for “recreational users” who want to grow their own, as well…)

    And I thought Oakland’s $211,000.00 per “mega-grow license” was astronomical…can you possibly even imagine how many people are going to lose their homes because they can’t afford to pay the taxes on their grow closets?

    Any way you slice it, it means that MEDICAL USERS WILL BE TAXED TO DEATH. Let’s say you were using a 10×10 room to grow in…that’s 100 square feet, or $60,000 in ANNUAL TAXES that you would “owe the government” just to grow what you needed to survive…and that’s not even considering recreational growers, either!!! That’s JUST medical users!!!

    How many people actually exist who are so incredibly talented as growers as to be able to produce enough to sell $60,000 worth of high-grade herb, just to pay their newfound CANNABIS TAXES, and still be able to grow enough for their own use?

    Now, when they limit your grow space to a 5×5 foot area (25 square feet), the “tax burdon” lowers to “only $15,000″…now we need to HONESTLY ask: can the average grower produce enough to serve their needs AND pay their “cannabis taxes”, on top of their property taxes, income taxes, sales taxes, licenses, permits, heat, light, rent/mortgage, car insurance and maintenance, property maintenance/paint/repairs, et cetera?

    Rancho Cordova is absolutely insane for even suggesting such an astronomically ridiculous fee for something they will do absolutely nothing of value to have EARNED…and wil simply use it for whatever purposes they wish…probably hiring a bunch of “new enforcement officers” to bust down doors with sub-machine guns…oh…and tape measures…just in case they accidentally forget to shoot first and ask questions later…

    If anyone thinks that “pre-emptive punitive taxation” like that noted above isn’t going to ABSOLUTELY make sure that there remains an active black market so that the cops and prosecutors and courts and prisons keep rolling in YOUR money at innocent people’s expense…you’re really not paying terribly close attention.

    Most people think “It’ll be legal”…and sure…it will…IF YOU PAY THE ADDED FEES AND TAXES AND GET ALL YOUR LICENSES AND PERMISSION SLIPS FROM YOUR OWNERS, it’ll all work out fine…but not unless you drastically overproduce, and sell to the “black market” to pay your “cannabis taxes.”

    No matter how you try to spin it…they ARE going to find a way to put YOU in jail, or at the very least, get you paying TONS of fines, late fees on your “cannabis taxes”, lawyer’s bills, collection fees for the many who simply won’t be able to over-produce enough to sell on the side to earn their “tax money”, and if those overproducers get caught selling…guess what happens?

    And, they’ve already got your addresses in a database…think they won’t come a-knockin’ when they want to “legally steal” a big pile of YOUR money?

    Can’t wait to see how many “asset forfeitures” are going to be reported in CA starting in January…from all the “new criminals” they create with their wonderful new TAXES.

    Oh yeah, did I mention that those “cannabis-specific taxes” are only going to be enforced if Prop 19 passes? Care to think about that vote for just a few seconds longer before you make up your mind?

    Gotta love the way the world’s governments all look out for their citizens…gotta keep “protecting us from ourselves”…after all, if we’re healthy, safe, not bankrupt…that’s a bad thing. Right?

  24. let’s concentrate on FACTS that can be PROVEN with only the tiniest bit of research and common sense.

    FACTS on how California’s “elected criminals” are already gearing up to rape, pillage and plunder the citizens who pay for their cushy office chairs and expense accounts once Prop 19 passes:

    Rancho Cordova has already passed a new ordinance that sets a $600.00 PER SQUARE FOOT OF GROW SPACE in PRIVATE HOMES for MEDICINAL USERS. This is the absolutely most immoral use of “criminally punitive taxation” against people in need that I’ve ever seen in my life! (It’s likely quite safe to assume that the “cannabis-grow-specific taxes” also hold true for “recreational users” who want to grow their own, as well…)

    And I thought Oakland’s $211,000.00 per “mega-grow license” was astronomical…can you possibly even imagine how many people are going to lose their homes because they can’t afford to pay the taxes on their grow closets?

    Any way you slice it, it means that MEDICAL USERS WILL BE TAXED TO DEATH. Let’s say you were using a 10×10 room to grow in…that’s 100 square feet, or $60,000 in ANNUAL TAXES that you would “owe the government” just to grow what you needed to survive…and that’s not even considering recreational growers, either!!! That’s JUST medical users!!!

    How many people actually exist who are so incredibly talented as growers as to be able to produce enough to sell $60,000 worth of high-grade herb, just to pay their newfound CANNABIS TAXES, and still be able to grow enough for their own use?

    Now, when they limit your grow space to a 5×5 foot area (25 square feet), the “tax burdon” lowers to “only $15,000″…now we need to HONESTLY ask: can the average grower produce enough to serve their needs AND pay their “cannabis taxes”, on top of their property taxes, income taxes, sales taxes, licenses, permits, heat, light, rent/mortgage, car insurance and maintenance, property maintenance/paint/repairs, et cetera?

    Rancho Cordova is absolutely insane for even suggesting such an astronomically ridiculous fee for something they will do absolutely nothing of value to have EARNED…and wil simply use it for whatever purposes they wish…probably hiring a bunch of “new enforcement officers” to bust down doors with sub-machine guns…oh…and tape measures…just in case they accidentally forget to shoot first and ask questions later…

    If anyone thinks that “pre-emptive punitive taxation” like that noted above isn’t going to ABSOLUTELY make sure that there remains an active black market so that the cops and prosecutors and courts and prisons keep rolling in YOUR money at innocent people’s expense…you’re really not paying terribly close attention.

    Most people think “It’ll be legal”…and sure…it will…IF YOU PAY THE ADDED FEES AND TAXES AND GET ALL YOUR LICENSES AND PERMISSION SLIPS FROM YOUR OWNERS, it’ll all work out fine…but not unless you drastically overproduce, and sell to the “black market” to pay your “cannabis taxes.”

    No matter how you try to spin it…they ARE going to find a way to put YOU in jail, or at the very least, get you paying TONS of fines, late fees on your “cannabis taxes”, lawyer’s bills, collection fees for the many who simply won’t be able to over-produce enough to sell on the side to earn their “tax money”, and if those overproducers get caught selling…guess what happens?

    And, they’ve already got your addresses in a database…think they won’t come a-knockin’ when they want to “legally steal” a big pile of YOUR money?

    Can’t wait to see how many “asset forfeitures” are going to be reported in CA starting in January…from all the “new criminals” they create with their wonderful new TAXES.

    Oh yeah, did I mention that those “cannabis-specific taxes” are only going to be enforced if Prop 19 passes? Care to think about that vote for just a few seconds longer before you make up your mind?

    Gotta love the way the world’s governments all look out for their citizens…gotta keep “protecting us from ourselves”…after all, if we’re healthy, safe, not bankrupt…that’s a bad thing. Right?

  25. Thanks so much for your time and effort in explaining what I see as quite reasonable concerns over the possible unintended consequences of a supposedly well-meaning Proposition.
    As a cannabis rights activist, I’ve been having a hard time debating this Proposition because there are so many ambiguities.

    I understand that Prop. 19 would keep cannabis illegal for 18-20 year olds, and that furnishing those in that age group carries a punishment of $1000 an 6 months of jail time, correct?

    What happens to the 18-20 year-olds themselves? Do they also face the quadruple-digit fine and incarceration?

  26. Thanks so much for your time and effort in explaining what I see as quite reasonable concerns over the possible unintended consequences of a supposedly well-meaning Proposition.
    As a cannabis rights activist, I’ve been having a hard time debating this Proposition because there are so many ambiguities.

    I understand that Prop. 19 would keep cannabis illegal for 18-20 year olds, and that furnishing those in that age group carries a punishment of $1000 an 6 months of jail time, correct?

    What happens to the 18-20 year-olds themselves? Do they also face the quadruple-digit fine and incarceration?

  27. Thank you so much for your insightful article. A common misconception Prop 19 proponents state is that Prop 19 must explicitly state that its intention is to overrule or change Prop 215. And no amount of proof that they are incorrect can stop them from saying so.

    This is something I have been battling since April. Attorney to Attorney, be prepared for people to tell you that you haven’t been an attorney long enough to make any sort of judgments (even though the people saying this have never been attorneys at all). Be prepared for people to call into question your professionalism, your motives, your ethics, and your morals. And especially be prepared for some name calling.

    What is so funny to me though, is neither of us is per-say Prop 19 opponents. Both of us simply want to educate the voters on the initiative. And the proponents attack us for doing so.

  28. Thank you so much for your insightful article. A common misconception Prop 19 proponents state is that Prop 19 must explicitly state that its intention is to overrule or change Prop 215. And no amount of proof that they are incorrect can stop them from saying so.

    This is something I have been battling since April. Attorney to Attorney, be prepared for people to tell you that you haven’t been an attorney long enough to make any sort of judgments (even though the people saying this have never been attorneys at all). Be prepared for people to call into question your professionalism, your motives, your ethics, and your morals. And especially be prepared for some name calling.

    What is so funny to me though, is neither of us is per-say Prop 19 opponents. Both of us simply want to educate the voters on the initiative. And the proponents attack us for doing so.

  29. Rick, we who have been opposing this ballot have been attacked by the like of people Green Bud. There are hard questions and hard decisions to make and we who are asking them are been told to go along. This we’ll fix it later group had told me that there are no new felons in this initiative. I had post six questions for over 2 months and no one will honestly answers them. If you wouldn’t mind answering them them I have a clearer directions on how to focus my energy dealing with Prop 19. Here they are:
    Questions on Prop 19 SECTION 4:
    1. With the A and B part already been law under HS Code 11361, who made the law ,was it the Atty General or Health and Human Services or Legislation or Ballot Initiative?

    2. Under it current status is 11361 penalties are mandatory or discretionary?

    3. If Prop 19 pass with part A and B being added in a People Initiative can the Judges and D.A’s still have the discretion rule to reduce sentences from felony possession to miscellaneous ?

    4. With part A and B part of an Initiative can Legislation change any part of the mandatory penalties?

    5. Are Judges obligated to enforce the jail time or waiver time served or give home arrest?

    6. Do you know anyone who have been convicted on 11361 for under a half of pound and what were their penalties?

    Thanking you in advance
    Richard Brumfield
    President
    Full Spectrum Omega, Corp.
    Orange County CA.
    http://www.fullspectrumomega.com

    Founder/President Sonoma County
    Pacific Coast Wellness and Evolution Center, Inc.
    Humboldt, Mendocino, Shasta, Orange, Los Angeles and San Diego Counties

  30. Rick, we who have been opposing this ballot have been attacked by the like of people Green Bud. There are hard questions and hard decisions to make and we who are asking them are been told to go along. This we’ll fix it later group had told me that there are no new felons in this initiative. I had post six questions for over 2 months and no one will honestly answers them. If you wouldn’t mind answering them them I have a clearer directions on how to focus my energy dealing with Prop 19. Here they are:
    Questions on Prop 19 SECTION 4:
    1. With the A and B part already been law under HS Code 11361, who made the law ,was it the Atty General or Health and Human Services or Legislation or Ballot Initiative?

    2. Under it current status is 11361 penalties are mandatory or discretionary?

    3. If Prop 19 pass with part A and B being added in a People Initiative can the Judges and D.A’s still have the discretion rule to reduce sentences from felony possession to miscellaneous ?

    4. With part A and B part of an Initiative can Legislation change any part of the mandatory penalties?

    5. Are Judges obligated to enforce the jail time or waiver time served or give home arrest?

    6. Do you know anyone who have been convicted on 11361 for under a half of pound and what were their penalties?

    Thanking you in advance
    Richard Brumfield
    President
    Full Spectrum Omega, Corp.
    Orange County CA.
    http://www.fullspectrumomega.com

    Founder/President Sonoma County
    Pacific Coast Wellness and Evolution Center, Inc.
    Humboldt, Mendocino, Shasta, Orange, Los Angeles and San Diego Counties

  31. Prop 19 is a Trojan horse or a poisoned bit put before the legalize it now crowd, and OH they are hungry for it. A better rewritten initiative that is not vague , one that is completely explicit is what we need to draft and bring into Law. Nuff said.

  32. Prop 19 is a Trojan horse or a poisoned bit put before the legalize it now crowd, and OH they are hungry for it. A better rewritten initiative that is not vague , one that is completely explicit is what we need to draft and bring into Law. Nuff said.

  33. Rick, thank you so very much! These are all the things I have been concerned and posting since my campaign to Stop Prop19. Prop 19 have so many loose interpretation that if I can make a damn good argument how well would a D.A. or Judge. Intent is good but accurately do and don’t spelled out are better. This what this Prop lack, pure clarity! You are the first brave Attorney to speak out in our time of need. Our opinions and our researches links where been ignored by many because we don’t possess the title of Attorney at Law.

    K.C. Kimber, J. C. Craig, Dragonflower Lynosse, Leland Cole, myself and others who will not be Sheeple and march to the slaughtered like the rest of the sheeple. Since we won’t walk blindly into this trap, we are shrugged or ridiculed by the people we are trying to warn! You had validated a lot of our true concerns.

    If there a way to make Prop 19 work under it current conditions and allow the Mega Farms to operate without danger to MMP or make the Federal Gov’t set in I just might reconsider voting for Prop 19.

    I value your opinion Rick and waiting on your next blog!

  34. Rick, thank you so very much! These are all the things I have been concerned and posting since my campaign to Stop Prop19. Prop 19 have so many loose interpretation that if I can make a damn good argument how well would a D.A. or Judge. Intent is good but accurately do and don’t spelled out are better. This what this Prop lack, pure clarity! You are the first brave Attorney to speak out in our time of need. Our opinions and our researches links where been ignored by many because we don’t possess the title of Attorney at Law.

    K.C. Kimber, J. C. Craig, Dragonflower Lynosse, Leland Cole, myself and others who will not be Sheeple and march to the slaughtered like the rest of the sheeple. Since we won’t walk blindly into this trap, we are shrugged or ridiculed by the people we are trying to warn! You had validated a lot of our true concerns.

    If there a way to make Prop 19 work under it current conditions and allow the Mega Farms to operate without danger to MMP or make the Federal Gov’t set in I just might reconsider voting for Prop 19.

    I value your opinion Rick and waiting on your next blog!

  35. “So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.” Yes it can, in theory, but in practice it doesn’t. Prop. 19 studiously avoids any change to the codified sections of Prop. 215.

    Prop. 19 authorizes local governments to enact ordinances governing retail sales and taxes. It changes current state laws governing cannabis possession and cultivation, and those statutes are distinct from those enacted by 215. Prop. 19 limits the state’s ability to place limits on activities expressly authorized by the ballot measure, and such wording is what gives Prop. 19 its teeth.

    The only explicit reference to Prop. 215 in Prop. 19 is found in the “purposes” section: “6. Provide easier, safer access for patients who need cannabis for medical purposes.” While purposes don’t carry the force of law, they can and will be considered when the law’s intent is brought before the courts, as it undoubtedly will.

    So here’s the deal: Prop. 19 does nothing — NOTHING — to undermine Prop. 215, unless one wants to quibble over the legal meaning of “nothwithstanding.” Notwithstanding such concerns, there is a bigger picture to consider. Prop. 215 is under attack through hundreds of city/county dispensary bans, with restrictive cultivation ordinances the next likely wave. In essence, a de facto repeal of Prop. 215 is under way in this state, which raises the question of how to better protect patient rights and access to their medicine. Prop. 19 is the perfect antidote to the regulatory backlash, making personal possession and cultivation of small amounts a voter-approved right in California. And that’s a big deal.

  36. “So Proposition 19 can amend, or even abolish, part, or all, of the medical marijuana laws, including the Compassionate Use Act voted into place by Proposition 215.” Yes it can, in theory, but in practice it doesn’t. Prop. 19 studiously avoids any change to the codified sections of Prop. 215.

    Prop. 19 authorizes local governments to enact ordinances governing retail sales and taxes. It changes current state laws governing cannabis possession and cultivation, and those statutes are distinct from those enacted by 215. Prop. 19 limits the state’s ability to place limits on activities expressly authorized by the ballot measure, and such wording is what gives Prop. 19 its teeth.

    The only explicit reference to Prop. 215 in Prop. 19 is found in the “purposes” section: “6. Provide easier, safer access for patients who need cannabis for medical purposes.” While purposes don’t carry the force of law, they can and will be considered when the law’s intent is brought before the courts, as it undoubtedly will.

    So here’s the deal: Prop. 19 does nothing — NOTHING — to undermine Prop. 215, unless one wants to quibble over the legal meaning of “nothwithstanding.” Notwithstanding such concerns, there is a bigger picture to consider. Prop. 215 is under attack through hundreds of city/county dispensary bans, with restrictive cultivation ordinances the next likely wave. In essence, a de facto repeal of Prop. 215 is under way in this state, which raises the question of how to better protect patient rights and access to their medicine. Prop. 19 is the perfect antidote to the regulatory backlash, making personal possession and cultivation of small amounts a voter-approved right in California. And that’s a big deal.

  37. Bud Green’s comment demonstrates why I had to write another post — “Toke It Easy, Man: More on Proposition 19” — because the supporters of Prop 19 who are taking issue with my comments fail to read, or understand, what I’ve said.

    I’m beginning to think it’s a deliberate misunderstanding, perhaps spurred by a greater concern for their own ability to grow, possess and use pot than any concern they might possibly have for medical marijuana users. Initially, I avoided saying anything like that, but from the deliberate refusal to read and respond to what I’ve said, I can only assume they wish to deliberately keep anyone from thinking about it.

    In particular, “Bud Green” (nice pseudonym, btw) says:

    So here’s the deal: Prop. 19 does nothing — NOTHING — to undermine Prop. 215, unless one wants to quibble over the legal meaning of “nothwithstanding.” Notwithstanding such concerns, there is a bigger picture to consider. Prop. 215 is under attack through hundreds of city/county dispensary bans, with restrictive cultivation ordinances the next likely wave. In essence, a de facto repeal of Prop. 215 is under way in this state, which raises the question of how to better protect patient rights and access to their medicine. Prop. 19 is the perfect antidote to the regulatory backlash, making personal possession and cultivation of small amounts a voter-approved right in California. And that’s a big deal.

    Not only does the first part of this quote demonstrate what I’m saying about the failure to understand — a failure which is increasingly beginning to look deliberate — but the second part of the quote supports exactly what I’m saying.

    Local governments in some parts of California do not wish to see people growing, possessing, or using marijuana. So, as “Bud Green” notes, they continue to attack Prop 215. One of the ways they do that is with restrictive ordinances.

    However, as I’ve written, those ordinances are more likely to be struck down in court right now if the courts see them as an attempt to “modify” Prop 215. This is why restrictions on the amounts medical marijuana patients could possess were stricken down by the California Supreme Court in the Kelly case.

    Prop 19, however, if passed, will override that. Why? Because Proposition 19, like Proposition 215, is an initiative passed by voters. Only the voters can change the impact of Proposition 215. Since Proposition 19 is newer than Proposition 215, then unless Proposition 19 specifically states — not in nebulous “intent” language, but as an actual law — that Proposition 215 is to remain in full force and effect, then Proposition 19 will take precedence over Proposition 215.

    Proposition 19 allows local governments to pass the very ordinances that “Bud Green” says they’re currently using to attack Proposition 215. Whereas Proposition 215 currently prevents some of them from being upheld by the California Supreme Court, that would change if the court decides that Proposition 19 permits the passage of those laws.

    The court might not allow local governments to be more restrictive than Proposition 215 when it comes to medical marijuana. However, it might allow it, because, as I keep trying to point out, the court might decide that Proposition 19 removes the barrier against local governments “regulating” and “controlling” how marijuana is grown, possessed, or used. Past experience indicates the court is more likely to go with the latter view than the former.

    Nothing in Proposition 19 explicitly protects Proposition 215. Anyone who says differently has apparently not done much reading of the law.

    Just because you want something to be true, “Bud,” doesn’t make it true.

  38. Bud Green’s comment demonstrates why I had to write another post — “Toke It Easy, Man: More on Proposition 19” — because the supporters of Prop 19 who are taking issue with my comments fail to read, or understand, what I’ve said.

    I’m beginning to think it’s a deliberate misunderstanding, perhaps spurred by a greater concern for their own ability to grow, possess and use pot than any concern they might possibly have for medical marijuana users. Initially, I avoided saying anything like that, but from the deliberate refusal to read and respond to what I’ve said, I can only assume they wish to deliberately keep anyone from thinking about it.

    In particular, “Bud Green” (nice pseudonym, btw) says:

    So here’s the deal: Prop. 19 does nothing — NOTHING — to undermine Prop. 215, unless one wants to quibble over the legal meaning of “nothwithstanding.” Notwithstanding such concerns, there is a bigger picture to consider. Prop. 215 is under attack through hundreds of city/county dispensary bans, with restrictive cultivation ordinances the next likely wave. In essence, a de facto repeal of Prop. 215 is under way in this state, which raises the question of how to better protect patient rights and access to their medicine. Prop. 19 is the perfect antidote to the regulatory backlash, making personal possession and cultivation of small amounts a voter-approved right in California. And that’s a big deal.

    Not only does the first part of this quote demonstrate what I’m saying about the failure to understand — a failure which is increasingly beginning to look deliberate — but the second part of the quote supports exactly what I’m saying.

    Local governments in some parts of California do not wish to see people growing, possessing, or using marijuana. So, as “Bud Green” notes, they continue to attack Prop 215. One of the ways they do that is with restrictive ordinances.

    However, as I’ve written, those ordinances are more likely to be struck down in court right now if the courts see them as an attempt to “modify” Prop 215. This is why restrictions on the amounts medical marijuana patients could possess were stricken down by the California Supreme Court in the Kelly case.

    Prop 19, however, if passed, will override that. Why? Because Proposition 19, like Proposition 215, is an initiative passed by voters. Only the voters can change the impact of Proposition 215. Since Proposition 19 is newer than Proposition 215, then unless Proposition 19 specifically states — not in nebulous “intent” language, but as an actual law — that Proposition 215 is to remain in full force and effect, then Proposition 19 will take precedence over Proposition 215.

    Proposition 19 allows local governments to pass the very ordinances that “Bud Green” says they’re currently using to attack Proposition 215. Whereas Proposition 215 currently prevents some of them from being upheld by the California Supreme Court, that would change if the court decides that Proposition 19 permits the passage of those laws.

    The court might not allow local governments to be more restrictive than Proposition 215 when it comes to medical marijuana. However, it might allow it, because, as I keep trying to point out, the court might decide that Proposition 19 removes the barrier against local governments “regulating” and “controlling” how marijuana is grown, possessed, or used. Past experience indicates the court is more likely to go with the latter view than the former.

    Nothing in Proposition 19 explicitly protects Proposition 215. Anyone who says differently has apparently not done much reading of the law.

    Just because you want something to be true, “Bud,” doesn’t make it true.

  39. Quote:C. Intent
    1. This Act is intended to limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis, including but not limited to the following, whether now existing or adopted in the future:”

    this is the “intent statement” of this prop.
    for legal purposes when this bill refers to “further the intent” of the prop. this is what that intent is. you can tell this is the intent statement by the fact it is labeled “C. Intent”

    so this prop is intended to limit enforcement.
    that designs this entire proposition in the frame of a charter of negative government abilities.
    what does that mean?
    it means basically unless otherwise specifically stated it
    “limits” governments ability to enforce or implement.

    since there is no specific language exempting 215 from the intent to limit clause 215 is unaffected.

    further…

    “(a) Notwithstanding sections 11470 and 11479 of the Health and Safety Code or any other provision of law, no state or local law enforcement agency or official shall attempt to, threaten to, or in fact seize or destroy any cannabis plant, cannabis seeds or cannabis that is lawfully cultivated, processed, transported, possessed, possessed for sale, sold or used in compliance with this Act or any local government ordinance, law or regulation adopted pursuant to this Act. ”

    the above is the end of the very lengthy Section 3: Lawful Activities
    section that begins with

    “Section 3: Lawful Activities
    Article 5 of Chapter 5 of Division 10 of the Health and Safety Code, commencing with section 11300 is added to read:
    Section 11300: Personal Regulation and Controls
    (a) Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:”

    some concern was expressed about the word “notwithstanding” taken by itself it could seem ominous but in the context of “pursuant to this act” and “the intent to limit” the “notwithstanding” is again limited to laws pursuant to the limiting of enforcement

    now there is…

    “7. Ensure that if a city decides not to tax and regulate the sale of cannabis, that buying and selling cannabis within that city’s limits remain illegal, but that the city’s 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.
    8. Ensure that if a city decides it does want to tax and regulate the buying and selling of cannabis (to and from adults only), that a strictly controlled legal system is implemented to oversee and regulate cultivation, distribution, and sales, and that the city will have control over how and how much cannabis can be bought and sold, except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”

    “11362.5. (a) This section shall be known and may be cited as the
    Compassionate Use Act of 1996.
    (b) (1) The people of the State of California hereby find and
    declare that the purposes of the Compassionate Use Act of 1996 are as
    follows:
    (A) To ensure that seriously ill Californians have the right to
    obtain and use marijuana for medical purposes where that medical use
    is deemed appropriate and has been recommended by a physician who has
    determined that the person’s health would benefit from the use of
    marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
    spasticity, glaucoma, arthritis, migraine, or any other illness for
    which marijuana provides relief.
    (B) To ensure that patients and their primary caregivers who
    obtain and use marijuana for medical purposes upon the recommendation
    of a physician are not subject to criminal prosecution or sanction.
    (C) To encourage the federal and state governments to implement a
    plan to provide for the safe and affordable distribution of marijuana
    to all patients in medical need of marijuana.
    (2) Nothing in this section shall be construed to supersede
    legislation prohibiting persons from engaging in conduct that
    endangers others, nor to condone the diversion of marijuana for
    nonmedical purposes.
    (c) Notwithstanding any other provision of law, no physician in
    this state shall be punished, or denied any right or privilege, for
    having recommended marijuana to a patient for medical purposes.
    (d) Section 11357, relating to the possession of marijuana, and
    Section 11358, relating to the cultivation of marijuana, shall not
    apply to a patient, or to a patient’s primary caregiver, who
    possesses or cultivates marijuana for the personal medical purposes
    of the patient upon the written or oral recommendation or approval of
    a physician.
    (e) For the purposes of this section, “primary caregiver” means
    the individual designated by the person exempted under this section
    who has consistently assumed responsibility for the housing, health,
    or safety of that person.

    11362.9. (a) (1) It is the intent of the Legislature that the state
    commission objective scientific research by the premier research
    institute of the world, the University of California, regarding the
    efficacy and safety of administering marijuana as part of medical
    treatment. If the Regents of the University of California, by
    appropriate resolution, accept this responsibility, the University of
    California shall create a program, to be known as the California
    Marijuana Research Program.
    (2) The program shall develop and conduct studies intended to
    ascertain the general medical safety and efficacy of marijuana and,
    if found valuable, shall develop medical guidelines for the
    appropriate administration and use of marijuana.
    (b) The program may immediately solicit proposals for research
    projects to be included in the marijuana studies. Program
    requirements to be used when evaluating responses to its solicitation
    for proposals, shall include, but not be limited to, all of the
    following:……………….. …………………………
    ………………………… ……………
    (r) This section shall be implemented only to the extent that
    funding for its purposes is appropriated by the Legislature in the
    annual Budget Act.”

    so there are the only two actual mentions of 215/420 as exemptions.

    1. Dag’s comment indicates an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to inadequately protect the existing rights of medical marijuana patients.

      For this reason, I’m writing another complete post on that question.

  40. Quote:C. Intent
    1. This Act is intended to limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis, including but not limited to the following, whether now existing or adopted in the future:”

    this is the “intent statement” of this prop.
    for legal purposes when this bill refers to “further the intent” of the prop. this is what that intent is. you can tell this is the intent statement by the fact it is labeled “C. Intent”

    so this prop is intended to limit enforcement.
    that designs this entire proposition in the frame of a charter of negative government abilities.
    what does that mean?
    it means basically unless otherwise specifically stated it
    “limits” governments ability to enforce or implement.

    since there is no specific language exempting 215 from the intent to limit clause 215 is unaffected.

    further…

    “(a) Notwithstanding sections 11470 and 11479 of the Health and Safety Code or any other provision of law, no state or local law enforcement agency or official shall attempt to, threaten to, or in fact seize or destroy any cannabis plant, cannabis seeds or cannabis that is lawfully cultivated, processed, transported, possessed, possessed for sale, sold or used in compliance with this Act or any local government ordinance, law or regulation adopted pursuant to this Act. ”

    the above is the end of the very lengthy Section 3: Lawful Activities
    section that begins with

    “Section 3: Lawful Activities
    Article 5 of Chapter 5 of Division 10 of the Health and Safety Code, commencing with section 11300 is added to read:
    Section 11300: Personal Regulation and Controls
    (a) Notwithstanding any other provision of law, it is lawful and shall not be a public offense under California law for any person 21 years of age or older to:”

    some concern was expressed about the word “notwithstanding” taken by itself it could seem ominous but in the context of “pursuant to this act” and “the intent to limit” the “notwithstanding” is again limited to laws pursuant to the limiting of enforcement

    now there is…

    “7. Ensure that if a city decides not to tax and regulate the sale of cannabis, that buying and selling cannabis within that city’s limits remain illegal, but that the city’s 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.
    8. Ensure that if a city decides it does want to tax and regulate the buying and selling of cannabis (to and from adults only), that a strictly controlled legal system is implemented to oversee and regulate cultivation, distribution, and sales, and that the city will have control over how and how much cannabis can be bought and sold, except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”

    “11362.5. (a) This section shall be known and may be cited as the
    Compassionate Use Act of 1996.
    (b) (1) The people of the State of California hereby find and
    declare that the purposes of the Compassionate Use Act of 1996 are as
    follows:
    (A) To ensure that seriously ill Californians have the right to
    obtain and use marijuana for medical purposes where that medical use
    is deemed appropriate and has been recommended by a physician who has
    determined that the person’s health would benefit from the use of
    marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
    spasticity, glaucoma, arthritis, migraine, or any other illness for
    which marijuana provides relief.
    (B) To ensure that patients and their primary caregivers who
    obtain and use marijuana for medical purposes upon the recommendation
    of a physician are not subject to criminal prosecution or sanction.
    (C) To encourage the federal and state governments to implement a
    plan to provide for the safe and affordable distribution of marijuana
    to all patients in medical need of marijuana.
    (2) Nothing in this section shall be construed to supersede
    legislation prohibiting persons from engaging in conduct that
    endangers others, nor to condone the diversion of marijuana for
    nonmedical purposes.
    (c) Notwithstanding any other provision of law, no physician in
    this state shall be punished, or denied any right or privilege, for
    having recommended marijuana to a patient for medical purposes.
    (d) Section 11357, relating to the possession of marijuana, and
    Section 11358, relating to the cultivation of marijuana, shall not
    apply to a patient, or to a patient’s primary caregiver, who
    possesses or cultivates marijuana for the personal medical purposes
    of the patient upon the written or oral recommendation or approval of
    a physician.
    (e) For the purposes of this section, “primary caregiver” means
    the individual designated by the person exempted under this section
    who has consistently assumed responsibility for the housing, health,
    or safety of that person.

    11362.9. (a) (1) It is the intent of the Legislature that the state
    commission objective scientific research by the premier research
    institute of the world, the University of California, regarding the
    efficacy and safety of administering marijuana as part of medical
    treatment. If the Regents of the University of California, by
    appropriate resolution, accept this responsibility, the University of
    California shall create a program, to be known as the California
    Marijuana Research Program.
    (2) The program shall develop and conduct studies intended to
    ascertain the general medical safety and efficacy of marijuana and,
    if found valuable, shall develop medical guidelines for the
    appropriate administration and use of marijuana.
    (b) The program may immediately solicit proposals for research
    projects to be included in the marijuana studies. Program
    requirements to be used when evaluating responses to its solicitation
    for proposals, shall include, but not be limited to, all of the
    following:……………….. …………………………
    ………………………… ……………
    (r) This section shall be implemented only to the extent that
    funding for its purposes is appropriated by the Legislature in the
    annual Budget Act.”

    so there are the only two actual mentions of 215/420 as exemptions.

    1. Dag’s comment indicates an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to inadequately protect the existing rights of medical marijuana patients.

      For this reason, I’m writing another complete post on that question.

  41. Rick, I agree with your concerns. I wish I did not, but your point is clear and expremely valid. I attended Oaksterdam and when the subject was Prop 19 (being taugh by another person) I raised this issue and giving control to local government, stating I would love to support the cause but I had concerns. Mr. Lee immediately took over the mike and basically stated, it was not perfect but it was better than nothing. I reside in Calaveras County. Currently there is a case pending trial, envolving a valied, non-profit mutual benefit collective (a California Corporation) that was in 100 compliance with Prop 215 and Attorney General Brown’s guidelines. In this case, a Deputy after making a prior arrest of a valid medical patient, he then took that patient’s medical recommendation as evidence. Instead of booking the recommendatioin into evidence, the Deputy took it upon himself to changed the year of birth on the recommendation and then copied it, affixing the patient and the prescribing Doctor’s signatures to the altered and falsified document. The Deputy then assumed the identity of the valid patient and used his recommendation, all without his knowledge or consent. The Deputy (Steven Avila), then used the stolen identity and the falsified stolen recommendation, to join the valid collective, signed a membership agreement and contract representing himself to be the person who’s identity and recommendation he had stolen and used it to obtain 1 oz of medical marijuana. Immediately the swat team did their “Take Down” and arrested the collective member, charging him with 3 Felonies including, sales, possession for sale and cultivation. Of course the local anti marijuana Judge immediately issued search warrants for all other collective members and ordered all medicine seized (even with both valid recommendations and State ID Cards) with Bail being set at $190,000.00 for the arrested member. This case is still pending trial (People v.Smith). The District Attorney and Sheriff contend that “No Collective Member can provide, cultivate or sell any medical marijuana to another person or member of the collective “UNLESS THEY ARE IN A CARE GIVER RELATIONSHIP”. So, if the question is: can local Law Enforcement and District Attorney’s, distort and twist the law to their personal preferences? The answer is Yes, they can and will. Furthermore, just this week the Calaveras County Board of Supervisors discussed and passed a resolution to remain neutral on Prop 19, what was announced to be, “THE MEDICAL MARIJUANA ENITIATIVE” … How will I vote on this issue? I don’t know yet. What I do know is we are in for some very rocky times ahead with potential set backs on the ground already taken, if 19 passes. By the way, the Sheriff and Deputy’s conduct and misconduct, was simply described as a Ruse and has been ignored, covered up and justified away so far. Wake up folks, we live in a very real correct legal system that will abuse their power and to hell with your rights.

  42. Rick, I agree with your concerns. I wish I did not, but your point is clear and expremely valid. I attended Oaksterdam and when the subject was Prop 19 (being taugh by another person) I raised this issue and giving control to local government, stating I would love to support the cause but I had concerns. Mr. Lee immediately took over the mike and basically stated, it was not perfect but it was better than nothing. I reside in Calaveras County. Currently there is a case pending trial, envolving a valied, non-profit mutual benefit collective (a California Corporation) that was in 100 compliance with Prop 215 and Attorney General Brown’s guidelines. In this case, a Deputy after making a prior arrest of a valid medical patient, he then took that patient’s medical recommendation as evidence. Instead of booking the recommendatioin into evidence, the Deputy took it upon himself to changed the year of birth on the recommendation and then copied it, affixing the patient and the prescribing Doctor’s signatures to the altered and falsified document. The Deputy then assumed the identity of the valid patient and used his recommendation, all without his knowledge or consent. The Deputy (Steven Avila), then used the stolen identity and the falsified stolen recommendation, to join the valid collective, signed a membership agreement and contract representing himself to be the person who’s identity and recommendation he had stolen and used it to obtain 1 oz of medical marijuana. Immediately the swat team did their “Take Down” and arrested the collective member, charging him with 3 Felonies including, sales, possession for sale and cultivation. Of course the local anti marijuana Judge immediately issued search warrants for all other collective members and ordered all medicine seized (even with both valid recommendations and State ID Cards) with Bail being set at $190,000.00 for the arrested member. This case is still pending trial (People v.Smith). The District Attorney and Sheriff contend that “No Collective Member can provide, cultivate or sell any medical marijuana to another person or member of the collective “UNLESS THEY ARE IN A CARE GIVER RELATIONSHIP”. So, if the question is: can local Law Enforcement and District Attorney’s, distort and twist the law to their personal preferences? The answer is Yes, they can and will. Furthermore, just this week the Calaveras County Board of Supervisors discussed and passed a resolution to remain neutral on Prop 19, what was announced to be, “THE MEDICAL MARIJUANA ENITIATIVE” … How will I vote on this issue? I don’t know yet. What I do know is we are in for some very rocky times ahead with potential set backs on the ground already taken, if 19 passes. By the way, the Sheriff and Deputy’s conduct and misconduct, was simply described as a Ruse and has been ignored, covered up and justified away so far. Wake up folks, we live in a very real correct legal system that will abuse their power and to hell with your rights.

  43. So prop 19, whatever its intention, has the potential to be interpreted in a way to allow local governments to restrict rights of medical cannabis patients? The only upside to this being that when the local government does restrict patients’ rights, we can argue for the intention of the prop? But even then, we can’t legally argue intention of the prop just because we were too blindly optimistic or just to dumb to realize the gramifications that this prop could have?
    Is this what you are saying?

    This prop 19, a grand mystery, more mysterious after every read, every article, every opinion blog. I was very much under the impression that I have been so confused about 19 because of the fact I am no lawyer or anything close to it. Is this not the case? So the language of prop 19 really is super loose and screwy, sounding good at first glance, but then we all get screwed and nobody ends up having fun.

    Putting paranoia, conspiracy theories, market greed, tax protest, and cannabis socialism aside, the basic fact is that the language of the prop, regardless of it’s intention, has the potential to be interpreted unfavorably by our local governments, and when this happens we can’t say a damn thing about it because we voted yes without truly understanding its consequences.

    So I will rest on my No vote… until the next simple, logical, believable argument pops up in favor of the prop and I am on the fence again. Which could happen tomorrow. I mean really, what are we supposed to do with this?

    Thank you so much for your information. You have, well I think you have, hope you have, brought me closer to resoloving my main concern with the prop….the potential for restrictions on patients’ rights.

  44. So prop 19, whatever its intention, has the potential to be interpreted in a way to allow local governments to restrict rights of medical cannabis patients? The only upside to this being that when the local government does restrict patients’ rights, we can argue for the intention of the prop? But even then, we can’t legally argue intention of the prop just because we were too blindly optimistic or just to dumb to realize the gramifications that this prop could have?
    Is this what you are saying?

    This prop 19, a grand mystery, more mysterious after every read, every article, every opinion blog. I was very much under the impression that I have been so confused about 19 because of the fact I am no lawyer or anything close to it. Is this not the case? So the language of prop 19 really is super loose and screwy, sounding good at first glance, but then we all get screwed and nobody ends up having fun.

    Putting paranoia, conspiracy theories, market greed, tax protest, and cannabis socialism aside, the basic fact is that the language of the prop, regardless of it’s intention, has the potential to be interpreted unfavorably by our local governments, and when this happens we can’t say a damn thing about it because we voted yes without truly understanding its consequences.

    So I will rest on my No vote… until the next simple, logical, believable argument pops up in favor of the prop and I am on the fence again. Which could happen tomorrow. I mean really, what are we supposed to do with this?

    Thank you so much for your information. You have, well I think you have, hope you have, brought me closer to resoloving my main concern with the prop….the potential for restrictions on patients’ rights.

  45. rick, thank you so much for your professional opinion on this critical issue! i have written an article illuminating some of the things you mention about prop. 19 potentially usurping medical marijuana law, as well as more than a dozen other little-known facts about prop. 19 that should give us pause.

    please read it when you can; i would love to have your educated comments as part of the discussion there!

    votetaxcannabis201.blogspot.com

  46. rick, thank you so much for your professional opinion on this critical issue! i have written an article illuminating some of the things you mention about prop. 19 potentially usurping medical marijuana law, as well as more than a dozen other little-known facts about prop. 19 that should give us pause.

    please read it when you can; i would love to have your educated comments as part of the discussion there!

    votetaxcannabis201.blogspot.com

  47. Thank you Rick, as I have been thinking the same. I am NOT an attorney, but do pay a little attention. My question for supporters of p19 who refuse to believe any of this could be true is as follows: If you consider that, past behavior is a good indicator of future behavior, and Prop 215 provided an “affirmative defense”, but patients and providers are still being arrested 14 yrs later, how will an “affirmative defense” for recreational users, stop the arrests and end prohibition? My contention is, it will not, and all p19 stands to do, is to negate 14 years of blood, sweat, tears, and case law. It is a trojan horse and should be passed in a place like Texas. I guess a Cali guy is gonna have to go there and do it though, because the Texas guy is here?

  48. Thank you Rick, as I have been thinking the same. I am NOT an attorney, but do pay a little attention. My question for supporters of p19 who refuse to believe any of this could be true is as follows: If you consider that, past behavior is a good indicator of future behavior, and Prop 215 provided an “affirmative defense”, but patients and providers are still being arrested 14 yrs later, how will an “affirmative defense” for recreational users, stop the arrests and end prohibition? My contention is, it will not, and all p19 stands to do, is to negate 14 years of blood, sweat, tears, and case law. It is a trojan horse and should be passed in a place like Texas. I guess a Cali guy is gonna have to go there and do it though, because the Texas guy is here?

  49. I don’t think I’d go so far as to say that Proposition 19 is terminally flawed. It may be, but I don’t know if that’s what I’d say right now. What I’ve written about is something that definitely needs to be considered and talked about.

    And who knows? Passing it, even if it causes problems, may make it easier to pass something more rational in the future. After all, the passage of Proposition 215 (the Compassionate Use Act) probably has something to do with the fact that public opinion toward legalizing marijuana is more favorable today. Maybe if Prop 19 passes, it will cause problems, particularly in more conservative areas like Fresno and Tulare Counties, but will also give people a chance to see that legalizing marijuana isn’t as harmful as some want us to think.

    In that sense, even if there are problems, it may be that they won’t break the bong, and they’ll be easier to fix down the road.

  50. I don’t think I’d go so far as to say that Proposition 19 is terminally flawed. It may be, but I don’t know if that’s what I’d say right now. What I’ve written about is something that definitely needs to be considered and talked about.

    And who knows? Passing it, even if it causes problems, may make it easier to pass something more rational in the future. After all, the passage of Proposition 215 (the Compassionate Use Act) probably has something to do with the fact that public opinion toward legalizing marijuana is more favorable today. Maybe if Prop 19 passes, it will cause problems, particularly in more conservative areas like Fresno and Tulare Counties, but will also give people a chance to see that legalizing marijuana isn’t as harmful as some want us to think.

    In that sense, even if there are problems, it may be that they won’t break the bong, and they’ll be easier to fix down the road.

  51. So, Rick, in your opinion, is Prop 19 terminally flawed? Do the opportunities that the loopholes create for government to tighten controls make this initiative something that should be voted down?

    You’re right, there are many examples where the INTENT of a new law/ regulation is about 180 degrees from the RESULT.

    Should we wait for an initiative which has no ambiguities in the language? Or, in your opinion, should we be voting “YES” and then try to plug the holes in the bucket (Dear Liza, dear Liza)?

  52. So, Rick, in your opinion, is Prop 19 terminally flawed? Do the opportunities that the loopholes create for government to tighten controls make this initiative something that should be voted down?

    You’re right, there are many examples where the INTENT of a new law/ regulation is about 180 degrees from the RESULT.

    Should we wait for an initiative which has no ambiguities in the language? Or, in your opinion, should we be voting “YES” and then try to plug the holes in the bucket (Dear Liza, dear Liza)?

  53. Wikipedia is made by people who aren’t paid to do it right… Wikipedia is fallible… I hope this new law doesn’t affect my rights… however I did smell mud slinging in here towards Lee… I think by a law saying it won’t change a law means that I am protected… however I am not an attorney.

  54. Wikipedia is made by people who aren’t paid to do it right… Wikipedia is fallible… I hope this new law doesn’t affect my rights… however I did smell mud slinging in here towards Lee… I think by a law saying it won’t change a law means that I am protected… however I am not an attorney.

  55. Richard Lee is not the “grandfather of medical marijuana”…

    He is a carpet bagging monopolist from Texas.

    Dennis Peron is the Grandfather of the Medical Marijuana Movement.

    1. I have no idea — particularly since you decided to merely sling mud, rather than explain or provide a basis for your statement — whether what you say is true or not. I do know that Wikipedia, in the link I provided, refers to him as the “grandfather of medical marijuana.”

  56. Richard Lee is not the “grandfather of medical marijuana”…

    He is a carpet bagging monopolist from Texas.

    Dennis Peron is the Grandfather of the Medical Marijuana Movement.

    1. I have no idea — particularly since you decided to merely sling mud, rather than explain or provide a basis for your statement — whether what you say is true or not. I do know that Wikipedia, in the link I provided, refers to him as the “grandfather of medical marijuana.”

  57. What about the fact that items 7 & 8 under B. Purposes are specific to “city”. Item 7 states “city” three times, every way it knows how.

    But nowhere in there do we find the word “county”.

    Nor the word “cultivate”.

    1. Yes, what about that fact? Hopefully, you’re not attempting to imply that the legislation means that counties are not able to pass laws relative to marijuana cultivation. I’m pretty sure that unless the law says they can’t, they can, unless you are able to argue a pre-emption issue, which is doubtful.

  58. What about the fact that items 7 & 8 under B. Purposes are specific to “city”. Item 7 states “city” three times, every way it knows how.

    But nowhere in there do we find the word “county”.

    Nor the word “cultivate”.

    1. Yes, what about that fact? Hopefully, you’re not attempting to imply that the legislation means that counties are not able to pass laws relative to marijuana cultivation. I’m pretty sure that unless the law says they can’t, they can, unless you are able to argue a pre-emption issue, which is doubtful.

  59. Have you read the initiative?

    Purpose # 6 specificially says “Provide easier, safer access for patients who need cannabis for medical purposes.”

    and purpose #12 specifically says “12. Make cannabis available for scientific, medical, industrial, and research purposes.”

    And prop215 the Compassionate Use Act has it’s own purpose (C) which reads “(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”

    I cannot imagine how a court can decide that prop 215 or prop 19 if passed would actually encourage a local government to limit safe and affordable access to medical cannabis. It goes against what the purposes of both this initiatives.

    1. I have read the initiative quite a number of times, including the version initially submitted as well as versions posted on various pro-marijuana websites which contain incorrect section numbering. Did you read my post? Or did you stop after seeing the part where I said there was a potential for conflict and just decide to give your uneducated opinion at that point?

      There are a couple of things worth mentioning in response to your comments:

      1. I am a practicing attorney. I have defended a large number of people who have been prosecuted under laws which were written for some other purpose than the purpose for which they were being prosecuted.

      2. I have absolutely no doubt that the people who drafted and support Proposition 19 would not want the law to be used in a way contrary to what they desire. Governments don’t always honor the desires of voters, though. (I certainly hope this is not a surprise to you!) Thus, when voters are considering initiatives, they must educate themselves about the initiatives and consider the potential interaction with other statutes, including prior initiatives which they’ve passed, to ensure they don’t accidentally provide governmental agents with a way to undo what the voters believed they were doing.

      3. The stated purposes of an initiative do not constitute the law; they provide some rationale for understanding why the voters might have supported the law. They are useful in helping to interpret the law (but see more below on this). Laws state or imply things like “do this,” “do not do that,” “this shall happen,” “this may happen,” “this shall not happen,” “this should not happen,” etc. If the law says that local governments can “control” or “regulate” things, then they can control or regulate things. We — this includes me! — sincerely hope that the government will control or regulate things in a way that comports with our own goals, but this does not always happen. A perfect example is seen in the way certain law enforcement agencies (or even just certain individual law enforcement officers) and courts have handled medical marijuana patients and their caregivers after the passage of the Compassionate Use Act (“CUA”, or Proposition 215) and the Medical Marijuana Program Act (“MMPA,” or SB 420). If the purposes of those laws, which are similar to some of the purposes outlined in Proposition 19, would have been followed, then certain court cases would not have even been necessary. This includes, but is not limited to, the cases I referenced in my article; e.g., City of Garden Grove and People v. Kelly.

      4. You could go farther than simply pointing out purposes 6 and 12 in Proposition 19’s text. Purpose 7 tries to be even better. Among other things, it appears to state that even if a city opts out of the “Proposition 19 plan,” then the old rules implemented through the CUA and MMPA still allow medical marijuana patients to exceed the limits that ordinary citizens are allowed under Proposition 19. But there are two thoughts that come to my lawyer’s mind in considering this language.

      a. The first is that we’re talking about one of the “Purposes” of the Act. In other words, we’re not talking about part of the actual “this is what you can/must do” of the proposed statutes. Not everything that is included in an Act has an impact on how the law will be interpreted. (For example, courts have discussed how the “Title” of an Act may, or may not, impact the interpretation of the law contained within the Act. (Moore v. Williams (1912) 19 Cal.App. 600, 609 [127 P. 509].)) I’m not going to build an exhaustive list, but if you look at cases which interpret statutes, you will see that not a few contain an Opinion of the Court and, additionally, either a Concurrence, or a Dissent, or both. In one such case, a Concurrence took issue with the idea that “‘we may not properly interpret [an initiative] measure in a way that the electorate did not contemplate’ and that we must, therefore, look first to the electorate’s ‘purpose.'” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 119 [980 P.2d 433] (conc. opn. of Werdegar, J.).) Justice Werdegar denied that this was true and said, “At times this will, indeed, mean that the law has consequences the voters did not specifically ‘contemplate.'” (Ibid.) So it is entirely possible that because of the “plain language” of the proposed legislation, someone will make a determination with which you disagree. Someone in power. Someone whose interpretation results in the law having consequences the voters did not consider.

      b. Specific to that last point — again, thinking like a lawyer — does this mean that if a city chooses not to opt in to the Proposition 19 plan, then medical marijuana patients continue to enjoy the greater protections of the CUA and MMPA, but if the city decides that it will opt in, they don’t? Because that’s how the plain language of the stated purpose appears to read.

      5. There are cities and counties that do not approve of the loosening of laws relating to marijuana. (Indeed, Proposition 19 even tries to accommodate them, by allowing them to decide or not decide what to do about controlling, regulating, licensing, etc. It merely provides a base below which cities and counties, apparently, cannot go if/when they do decide to control, regulate, license, etc.) In some of these cities and counties, even with medical marijuana laws in place, the purposes of which were to make it easier for patients to get medicine, those cities and counties have passed ordinances which have the effect of making it more difficult for patients to get medicine.

      6. I spoke with a marijuana doctor recently who appeared to approve of the idea of controlling and limiting the growing and distribution of marijuana “to ensure the quality of the medicine.” I can easily imagine some city or county passing regulations which, to most of us, would look like it makes it harder to get marijuana, but which the city or county argues is necessary to ensure the safety of its citizens, including marijuana patients.

      The bottom line here is that I am concerned that Proposition 19 does not do enough to protect against cities and counties undoing some of the good that the CUA and MMPA have brought about — particularly the CUA. As People v. Kelly showed, the MMPA improperly tried to limit medical marijuana patients in the guise of “helping” and “clarifying.” The limiting portion was struck down because the Legislature is forbidden from modifying an initiative passed by the voters without the permission of the voters. My concern is that, if this were to happen again after the passage of Proposition 19, whether “to help clarify” or for some hidden nefarious purpose (like the city leaders just don’t like marijuana), that protection might not be upheld by the courts, because Proposition 19 is, itself, an initiative.

      You are, of course, free to disagree. But the fact that we have this disagreement is actually further evidence that there could be such a problem. What if a judge looks at it the same way I’ve done?

  60. Have you read the initiative?

    Purpose # 6 specificially says “Provide easier, safer access for patients who need cannabis for medical purposes.”

    and purpose #12 specifically says “12. Make cannabis available for scientific, medical, industrial, and research purposes.”

    And prop215 the Compassionate Use Act has it’s own purpose (C) which reads “(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”

    I cannot imagine how a court can decide that prop 215 or prop 19 if passed would actually encourage a local government to limit safe and affordable access to medical cannabis. It goes against what the purposes of both this initiatives.

    1. I have read the initiative quite a number of times, including the version initially submitted as well as versions posted on various pro-marijuana websites which contain incorrect section numbering. Did you read my post? Or did you stop after seeing the part where I said there was a potential for conflict and just decide to give your uneducated opinion at that point?

      There are a couple of things worth mentioning in response to your comments:

      1. I am a practicing attorney. I have defended a large number of people who have been prosecuted under laws which were written for some other purpose than the purpose for which they were being prosecuted.

      2. I have absolutely no doubt that the people who drafted and support Proposition 19 would not want the law to be used in a way contrary to what they desire. Governments don’t always honor the desires of voters, though. (I certainly hope this is not a surprise to you!) Thus, when voters are considering initiatives, they must educate themselves about the initiatives and consider the potential interaction with other statutes, including prior initiatives which they’ve passed, to ensure they don’t accidentally provide governmental agents with a way to undo what the voters believed they were doing.

      3. The stated purposes of an initiative do not constitute the law; they provide some rationale for understanding why the voters might have supported the law. They are useful in helping to interpret the law (but see more below on this). Laws state or imply things like “do this,” “do not do that,” “this shall happen,” “this may happen,” “this shall not happen,” “this should not happen,” etc. If the law says that local governments can “control” or “regulate” things, then they can control or regulate things. We — this includes me! — sincerely hope that the government will control or regulate things in a way that comports with our own goals, but this does not always happen. A perfect example is seen in the way certain law enforcement agencies (or even just certain individual law enforcement officers) and courts have handled medical marijuana patients and their caregivers after the passage of the Compassionate Use Act (“CUA”, or Proposition 215) and the Medical Marijuana Program Act (“MMPA,” or SB 420). If the purposes of those laws, which are similar to some of the purposes outlined in Proposition 19, would have been followed, then certain court cases would not have even been necessary. This includes, but is not limited to, the cases I referenced in my article; e.g., City of Garden Grove and People v. Kelly.

      4. You could go farther than simply pointing out purposes 6 and 12 in Proposition 19’s text. Purpose 7 tries to be even better. Among other things, it appears to state that even if a city opts out of the “Proposition 19 plan,” then the old rules implemented through the CUA and MMPA still allow medical marijuana patients to exceed the limits that ordinary citizens are allowed under Proposition 19. But there are two thoughts that come to my lawyer’s mind in considering this language.

      a. The first is that we’re talking about one of the “Purposes” of the Act. In other words, we’re not talking about part of the actual “this is what you can/must do” of the proposed statutes. Not everything that is included in an Act has an impact on how the law will be interpreted. (For example, courts have discussed how the “Title” of an Act may, or may not, impact the interpretation of the law contained within the Act. (Moore v. Williams (1912) 19 Cal.App. 600, 609 [127 P. 509].)) I’m not going to build an exhaustive list, but if you look at cases which interpret statutes, you will see that not a few contain an Opinion of the Court and, additionally, either a Concurrence, or a Dissent, or both. In one such case, a Concurrence took issue with the idea that “‘we may not properly interpret [an initiative] measure in a way that the electorate did not contemplate’ and that we must, therefore, look first to the electorate’s ‘purpose.'” (Hodges v. Superior Court (1999) 21 Cal.4th 109, 119 [980 P.2d 433] (conc. opn. of Werdegar, J.).) Justice Werdegar denied that this was true and said, “At times this will, indeed, mean that the law has consequences the voters did not specifically ‘contemplate.'” (Ibid.) So it is entirely possible that because of the “plain language” of the proposed legislation, someone will make a determination with which you disagree. Someone in power. Someone whose interpretation results in the law having consequences the voters did not consider.

      b. Specific to that last point — again, thinking like a lawyer — does this mean that if a city chooses not to opt in to the Proposition 19 plan, then medical marijuana patients continue to enjoy the greater protections of the CUA and MMPA, but if the city decides that it will opt in, they don’t? Because that’s how the plain language of the stated purpose appears to read.

      5. There are cities and counties that do not approve of the loosening of laws relating to marijuana. (Indeed, Proposition 19 even tries to accommodate them, by allowing them to decide or not decide what to do about controlling, regulating, licensing, etc. It merely provides a base below which cities and counties, apparently, cannot go if/when they do decide to control, regulate, license, etc.) In some of these cities and counties, even with medical marijuana laws in place, the purposes of which were to make it easier for patients to get medicine, those cities and counties have passed ordinances which have the effect of making it more difficult for patients to get medicine.

      6. I spoke with a marijuana doctor recently who appeared to approve of the idea of controlling and limiting the growing and distribution of marijuana “to ensure the quality of the medicine.” I can easily imagine some city or county passing regulations which, to most of us, would look like it makes it harder to get marijuana, but which the city or county argues is necessary to ensure the safety of its citizens, including marijuana patients.

      The bottom line here is that I am concerned that Proposition 19 does not do enough to protect against cities and counties undoing some of the good that the CUA and MMPA have brought about — particularly the CUA. As People v. Kelly showed, the MMPA improperly tried to limit medical marijuana patients in the guise of “helping” and “clarifying.” The limiting portion was struck down because the Legislature is forbidden from modifying an initiative passed by the voters without the permission of the voters. My concern is that, if this were to happen again after the passage of Proposition 19, whether “to help clarify” or for some hidden nefarious purpose (like the city leaders just don’t like marijuana), that protection might not be upheld by the courts, because Proposition 19 is, itself, an initiative.

      You are, of course, free to disagree. But the fact that we have this disagreement is actually further evidence that there could be such a problem. What if a judge looks at it the same way I’ve done?

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