Kirk Tousaw breaks down the opposition to Prop. 19 and "Notwithstanding"

Prop. 19 Analysis,

Does Prop. 19 supersede Prop. 215? What does “Notwithstanding” really mean?

CW: Does notwithstanding mean the same thing in Canadian?

by Kirk Tousaw

Much of what has been written by an anti-prop 19 advocate  proceeds from the assumption that Prop 19 supersedes Prop 215.  But that assumption is far from certain.

One thing is certain:  Prop 19, if it passes, will lead to litigation just like Prop 215 has been the subject of litigation since it passed more than a decade ago.  The end result of that litigation will tell the tale.  Another thing is certain:  if Prop 19 does not pass the headlines the day after the vote will be “California says no to marijuana legalization” not “California medical marijuana users saved”.

Let’s examine the primary assumption:  That Prop 19 supersedes Prop 215.  Note that anything said on this topic is a personal opinion, not a legal opinion upon which any individual person may or should rely.  I am not licensed to practice law in California or, currently, any US jurisdiction.

The supersedes argument relies mainly on the use of the phrase “nothwithstanding any other provision of law” in certain sections.  This is a fairly typical phrase used in law to mean “despite other already-existing laws”.  It does not mean “all existing laws on this topic are null and void and this new set of laws totally replaces them.”

I went into it at length in a previous post in relation to Prop 19’s new section 11300 which legalizes possession, sharing, transport and cultivation of cannabis for personal consumption.  My primary point was that the effect of Prop 19 will come from what Prop 19 does – not the use of “notwithstanding”.

I should also point out that in the “Purposes” section of Prop 19 the following three sections are critical (my comments in bold) to the interpretation to be given to what Prop 19 does and is intended to do:

6. Provide easier, safer access for patients who need cannabis for medical purposes.

– If the anti-19 people are correct, this “purpose” of Prop 19 will be negated.  It is hard to see how making access harder by restricting Prop 215 can be held to be one of the legislative intents of Prop 19 when the goal is “easier, safer access.”

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.

– The final clause of this section specifically exempts Prop 215 (which is Health and Safety Section 11362.5).  So the purpose is to ensure that if a city does not tax/regulate sales then (a) buying/selling is illegal; (b) citizens can still possess and consume small amounts; and (c) anything legal under Prop 215 remains legal.

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.

– But if a city does tax and regulate it can set up a tight regulatory scheme to do including controls on how much can be bought and sold…except as permitted under Prop 215.  In other words, the city can’t restrict the rights granted by Prop 215 when setting up its regulatory scheme.

Now let’s examine 11300 (dealing with personal possession/production) in full with my comments again in bold:

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:
-Ok, so here the proposition says that certain activities will be
lawful.  So far so good.  Nothing here can be read as restricting the
category of existing lawful activities.

(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 per private residence or, in the
absence of any residence, the parcel. Cultivation on leased or rented
property may be subject to approval from the owner of the property.
Provided that, nothing in this section shall permit unlawful or
unlicensed cultivation of cannabis on any public lands.

(iii) Possess on the premises where grown the living and harvested
plants and results of any harvest and processing of plants lawfully
cultivated pursuant to section 11300(a)(ii), for personal consumption.

(iv) Possess objects, items, tools, equipment, products and materials
associated with activities permitted under this subsection.

–  Now we know what has been made lawful.  Still nothing restricting
any other lawful activity.

(b) “Personal consumption” shall include but is not limited to
possession and consumption, in any form, of cannabis in a residence or
other non-public place, and shall include licensed premises open to
the public authorized to permit on-premises consumption of cannabis by
a local government pursuant to section 11301.

– This is an important definitional section as it sets out what
“personal consumption” means.  Personal consumption is the linchpin of
what is legalized by Prop 19 in this section of the law and also
relates to certain powers granted to cities in the next section
(dealing with commercial production/sale).

(c) “Personal consumption” shall not include, and nothing in this Act
shall permit cannabis:

(i) possession for sale regardless of amount, except by a person who
is licensed or permitted to do so under the terms of an ordinance
adopted pursuant to section 11301;

(ii) consumption in public or in a public place;

(iii) consumption by the operator of any vehicle, boat or aircraft
while it is being operated, or that impairs the operator;

(iv) smoking cannabis in any space while minors are present.

– Ok, here are the exemptions from what “personal consumption” is and, therefore, what is made lawful by this section.  I think it is here
that some of the anti-19 concerns arise.  Note, however, that this section simply sets out a range of activities that are not “personal
consumption” and therefore are not made lawful by Prop 19.  It does not specifically restrict any other activity nor does it make any
other currently-lawful activity illegal.  It is a modification to what is being legalized, not a restriction on what is already legal.  Remember, this section of the statute begins by adding categories of lawful conduct, not restricting anything.

Now lets untangle it a bit.  What has happened?

1.  Possessing and consuming cannabis for medicine is already legal.
2.  Cannabis for “personal consumption” has also become legal.
3.  But “personal consumption” doesn’t include consuming in the presence of minors, public consumption, etc. so the category of newly-lawful conduct does not extend to consuming in the presence of minors, public consumption, etc.

The exemption relates to the category of things legalized by Prop 19, not the category of things that had already been legal.  I believe that it takes a very strained reading of 11300 to conclude that it (a) applies to medical cannabis at all; and (b) applies to it in such a way as to restrict it to only the situations set out in Prop 19.

Next up is the commercial section which permits but does not require municipalities to license production and distribution facilities.  I agree that certain sections of this law (section 11301) are less than perfectly clear.  I will try to write more on this later today or next week.  But I suggest that everyone interested read the Proposition and try to parse out the language themselves.

Finally, a lot of the stuff below is irrelevant.  For example that Long Beach already charges dispensaries more than booze joints is irrelevant to Prop 19 – it is by definition already happening under 215.  Nobody that I know of is arguing that it is illegal to consume booze “in sight” of minors.  It obviously isn’t.  And Prop 19 doesn’t make it illegal to consume cannabis “in sight” of minors either. Sidewalk cafes are not “public” places they are private businesses. Cities are not proposing taxes on dispensaries to protect them from being shut down by Prop 19 – nothing in Prop 19 requires cities to tax any cannabis sales outlets though it does permit the imposition of taxes on such locations.  I think it is at worst an open question whether that includes medical dispensaries and will try to expand on that in a later post dealing with the tax section.

About Kirk:

Kirk is barrister and social justice advocate based in Vancouver, BC. He operates his own law practice, focusing primarily on criminal and constitutional litigation, and is also an associate of Conroy & Company, Barristers and Solicitors based in Abbotsford, BC. Kirk began practicing law in 1998 in the United States and has a background in business litigation, criminal defence and social justice advocacy pursuant to the Canadian Charter of Rights and Freedoms. He has been a practicing member of the Law Society of British Columbia since 2005.

Kirk is the Chair of the Drug Policy Committee of the British Columbia Civil Liberties Association and is a member of its Board of Directors. Kirk is a member of the NDP Executive of both the federal riding of Vancouver-Quadra and the provincial riding of Vancouver-Quilchena.

He has written and spoken extensively on issues related to drug policy, privacy, religious freedom and criminal justice policy. In addition, Kirk has had the privilege of testifying several times before the Standing Committee on Justice and Human Rights of the House of Commons and also before the Senate Standing Committee on Legal and Constitutional Affairs.

Kirk is the executive director of the Beyond Prohibition Foundation and a regular contributor to Cannabis Culture.