Carl T. Raff breaks down myths put forth by Attorney Letitia Peppers

August 30, 2010 in Legalization

Ms. Pepper is correct when she says “Inititatives [sic] like Prop. 19 are reviewed by courts using specific rules, generally known as rules of statutory interpretation.”, but she omits a critical step in this interpretation process. These rules begin with the language of the statute as distinct from the purposes and intent sections of the proposition. Her entire argument focuses on the intent and purposes section of the proposition which, as Rick Horowitz ,another attorney with concerns about Prop 19 points out “while the intent of the law assists in helping to interpret the law, the intent of the law is not the law.” (http://www.rhdefense.com/blog/marijuana-law/toke-it-easy-man-more-on-proposition-19/ ) The operation of the rules of statutory interpretation is declared in numerous Appellate and Supreme Court opinions including such as those listed below:

“That analysis requires a review of the statutory language as the best indicator of legislative intent. [citation] If that language is unambiguous, we presume that the Legislature, or, in the case of an initiative measure, the voters, intended the meaning apparent on the face of the statute.” (People V Krus)

Only if “that statutory language  is susceptible to more than one reasonable interpretation, „we look to “extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” [ibid]

“If there is any claimed ambiguity in the statutory language, we may consider indicia of the voters’ intent …” (People v Peron)

“… in light of its language and purpose” (People v Mower)

The statues included in Prop 19 appear in section 3 of the proposition where sections 11300-11304 are added to the Health and Safety Code, and Section 4 which modifies section 11361 of the Health and Safety Code. What do these statutes say?

Section 11300: Personal Regulation and Controls This section defines a lawful activity “personal use”. It defines the specific limits of that activity so that the public and law enforcement can recognize what is and is not an activity protected under this statute. This section creates no new prohibitions, but allows existing prohibitions and protections to remain enforce for activities that are not within the scope of personal use.

Section 11301: Commercial Regulations and Controls This section does not crate any new prohibitions either. Although it allows local governments to create local ordinances that it might otherwise not be able to create, those ordinances are still subject to the constitutional requirements that they deal with municipal concerns and non conflict with general laws.

Prop 215, SB 420, and Section 11300, once enacted, are general laws which will preclude local governments from ignoring the protections of those laws. While Prop 19 may modify Prop 215 and SB 420 it may not delegate that ability to the legislature or local governments. Only the people may modify a law enacted by the people.

Section 11302: Imposition and Collection of Taxes and Fees This section provides for taxes and fees associated with regulations enacted under 11301. It has no effect on anything else.

Section 11303: Seizure This section provides protection against law enforcement actions related to activities allowed by this act or by local ordinances created under 11301. As above the California Constitution prohibits creation of local law that would allow seizure as this would conflict with this general law.

Section 11304: Effect of Act and Definitions This section provides statutory confirmation of the legality and illegality of certain intents and purposes as well as the definition of terms used to avoid any ambiguity that might otherwise challenge the validity of the act.

One important protection included in this section is the prohibition against discrimination that is not included in Prop 215 or SB 420.

Section 4: Prohibition on Furnishing Marijuana to Minors This section creates 1 new misdemeanor under 11361 for adults over 21 who provide marijuana to an adult under 21. The penalty is the same as that for adults over 21 who provide alcohol to adults under 21. While unfortunate this is a necessary provision to attract the vote of the unknowing public who do not yet understand that Marijuana is Safer.

How does the plain statutory language included in Prop 19 affect Ms Pepper’s arguments? It blows them away.

As she correctly says that section 2 A “Findings” does not reference medical marijuana. What she doesn’t say is that the findings talk extensively about the failure of laws criminalizing cannabis, lack of relationship between severity of punishment and use, illegal transactions, and costs of implementing the prohibition of marijuana. The absence of findings relating to medical marijuana laws and use is a strong indication that Prop 19 is not intended to affect Prop 215 or the MMPA.

Her assertion that paragraphs 1 and 3 in section 2 B “Purposes” are somehow intended to apply to medical marijuana laws is an incredible stretch considering the findings outlined in the previous section. The context makes it clear that the laws to be reformed are those that make cannabis illegal as identified later in the intent section. Contextually it is clear the control to be gained is control over the illegal market.

Her argument over Purpose 6 “Provide easier, safer access for patients who need cannabis for medical purposes” degenerates into anti-capitalism ranting and is unworthy of debate when considering eliminating criminal penalties. Clearly the option to purchase cannabis in a retail market is an advantage to some patients, particularly those traveling in an area away from their local collective. Nothing in prop 19 precludes the existence of collectives and dispensaries as we know them.

She claims absence of the word “cultivate” in paragraph 7 of the purposes somehow limits the right of patients to cultivate as much cannabis as required and allowed for under Prop 215. However, the plain statutory language of 11300 precludes this interpretation. Additionally, the “except” clause includes Prop 215 and the MMPA in their entirety thus preserving all protections contained therein. She also incorrectly says that this paragraph refers to cities that ban the sale of cannabis. It refers only to cities “decide not to tax and regulate the sale of cannabis” under section 11301. These cities are subject to the existing cannabis laws, and the new provisions of 11301, 11304, and 11361.

Ms Pepper doesn’t talks about paragraph 8 of the purposes section which describes the intended effect of Prop 19 on cities that do choose to enact regulations under 11301. This section provides for these cities “that a strictly controlled legal system is implemented to oversee and regulate cultivation, distribution, and sales … except as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9”. We see here that from the perspective of intent the medical marijuana laws are explicitly exempted from the regulations cities may enact. Could the reason that she chose not to discuss this section be that it contradicts her underlying premise?

Her arguments that Prop 19 somehow limits the amount of cannabis a patient may grow or possess have been addressed previously by examining the plain language of the statute. The limits in 11300 apply only to personal use which is distinct from medical use. This is analogous to the way the vehicle code restricts the speed cars and trucks using a highway.

22349. (a) …no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.

22406. No person may drive any of the following vehicles on a highway at a speed in excess of 55 miles per hour: …[ 3 axle trucks, vehicles with trailers, school bus …]

Two separate statues with different restrictions based on different uses of the highway. 22349 covers use by vehicles in general, while 22406 covers use by specific vehicles.

Ms. Pepper infers some evil hidden agenda from the absence of our medical marijuana laws in either the list of statutes intended to be affected or not intended to be affected. Evidence from the findings section provides a more benign explanation that the proposition is aimed at addressing issues with the laws criminalizing marijuana as described in finding 1. Reference to the medical marijuana laws was excluded simply because nobody thought about it – it wasn’t the issue they are focusing on.

Prop 19 is clearly aimed at reforming our prohibitionist laws, not at undermining out rights are qualified patients.

There are only 2 specific limited issues that might affect medical marijuana patients, and those will only arise if a large majority of medical marijuana providers choose instead to be licensed providers of marijuana for personal use. Both of these issues are easily addressed by the legislature and should be favorably accepted all but our staunchest opponents.

Yes on 19 now, then full speed ahead with CCHH!

The truth shall set you free.