Marijuana and Federalism: California a Test Case

On Friday, August 6, 2010 I attended a forum of the Voluntary Committee of Lawyers called “Marijuana and Federalism: California a Test Case.” The event was originally conceived as a chance for experts to publicly examine the implications of the state-federal conflict of the passage of A.B. 2254, Assm. Ammiano’s tax-and-regulate marijuana bill. Then, Ammiano withdrew 2254 in light of Proposition 19, a voter initiative legalizing marijuana and allowing local governments to tax and regulate sales.

Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, “Marijuana Legalization: A Clash of Federal Power and States’ Rights.” His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his “uber-blue-blood” law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.

Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men’s Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.

Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19’s two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a “positive conflict” between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no “positive conflict” between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws — this is, at worst, a passive conflict — whereas a “positive conflict” would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms.”

VCL President Eric Sterling moderated the second panel, “Marijuana Legalization on the Ground: Practical Considerations.” First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a “hallway vote,” highlighting his fellow legislators “cowardice” on this issue. He also explained to the audience the concept of “contingency legislation.” The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19’s text specifically allows for new laws creating a statewide regulatory system.

Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, “Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08,” available here. African Americans are 7% of California’s population but 33% of all felony marijuana arrests.

Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19’s effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his “greatest loser,” Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe’s main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire — and would likely lower the price of medicine for patients.

Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was “stench,” i.e., neighbors’ complaints about odor from cultivation.