Recent Articles in Election Law & Political Commentary from LexMonitor

AGW Revisited

Thu, 02 Sep 2010 10:43:05 GMT

Travis had posted on Global Warming a little while ago and it turned into the usual supporters of the liars, versus those who support the other liars argument. I have a problem with the methodology and this whole issue of "consensus" as promoted by the charlatan Al Gore. But now there is a group of scientists who are organizing the complaints against the IPCC The lead sentence says it all: "If

Presidential Speech Predictions

Tue, 31 Aug 2010 23:48:01 GMT

Wanted to get this out before he talks, but I am going to go out on a limb and make the following predictions about his speech: 1. "We have ended the war." i,e, He is unable to say that we won. 2. "I was right years ago when I said that the surge was necessary." 3. There will be no mention of GW Bush. He, who shall not be named, except for campaigning in safely Democrat districts. 4. The

It's an American Thing

Tue, 31 Aug 2010 13:31:23 GMT

And Chris Matthews and oh so many others, just wouldn't understand. If you believe that America is a fundamentally racist, homophobic, sexist country, you cannot understand the rest of us. Especially those of us who have been outside of this great country, and know it is their own arrogance that allows other Americans to believe such nonsense. But as someone else said, "at some point you've

What Could Go Wrong?: Still More on Proposition 19

rick@rhdefense.com (Rick Horowitz) — Mon, 30 Aug 2010 01:25:46 GMT

In Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason), Neil MacCormick notes that: It is a well-recognized truism that even the most carefully drafted and detailed text can never convey a fully determinate meaning for all possible purposes.1 This is as true of what I’ve been writing [...]

In Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason), Neil MacCormick notes that:

It is a well-recognized truism that even the most carefully drafted and detailed text can never convey a fully determinate meaning for all possible purposes.¹

This is as true of what I’ve been writing lately on Proposition 19 as it is of Proposition 19 itself.

Before I go on, I want to note that a number of individuals have been in contact with me more-or-less “privately,” in addition to in the comments to my last two articles on Proposition 19. Many of these people are anti-Proposition-19 and have found some validation in the articles I’ve been writing.

In part, then, I wanted to write another article to provide a little balance. I’m worried that perhaps my comments about potential weaknesses in Proposition 19 are being “over-interpreted.” So there’s no doubt, I do have concerns on Proposition 19. And I have not yet decided how I will vote on Proposition 19.

In this article, I want to re-visit some of what I’ve been saying and try, once again, to explain my concerns about Proposition 19.

Perhaps, as some are saying, Proposition 19 could be passed and the problems could be fixed later. There’s certainly an argument for this, especially since the primary danger looks to be for medical marijuana cooperatives, collectives and dispensaries.

As I said in “Blowing Smoke: Proposition 19 & Medical Marijuana,” I think Proposition 215 being passed has caused more people to develop a favorable attitude towards legalization generally. So it could happen that even if Proposition 19 is flawed, passing it would eventually — perhaps even within one election cycle — get us to where we might “really” want to be.

I also want to re-focus readers on the “even if” of that last sentence. I wrote in my second article on the topic, “Toke It Easy, Man: More on Proposition 19,” that

[I]t may constitute a step backwards for those people who actually need marijuana, as opposed to those who “merely” wish to exercise their rights to recreational use.²

I don’t think I’ve ever said that it definitely is a step backwards. However, I have noticed that in trying to defend my position, I’ve started to slip over the line to thinking that it is a step backwards.

To the extent that I may have slipped over that line, I want to back up again. I do not know that Proposition 19 is, in fact, going to erase the gains made in California as concerns medical marijuana law. There are good reasons for believing, at the state level, Proposition 19 would not erase the gains made. It’s the right-wing conservative provincial wannabe hick parts of the state — basically where I practice criminal defense — that I’m worried about.

So what am I saying here?

I believe I’m saying the same thing I stated in my other articles: I have concerns about the potential ways in which Proposition 19 could be abused by those who do not agree with the majority.

The majority which passed Proposition 215 may have agreed on their intent. And the majority of proponents of Proposition 19 may also agree on their intent. At least, the drafters of 19 and their followers may agree on their intent.

But I doubt it, partly because I agree with the William Nelson Cromwell Professor of Law and Associate Dean for Curriculum at Stanford Law School, Jane S. Schacter. In a 1995 law review article titled “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy,” she stated:

It is fallacious to ascribe meaningful intentionality to a multimember body.³

Some supporters of Proposition 19, not happy with how Proposition 215 has allowed for the development of collective farms, cooperatives and dispensaries in their locale, may wish to see Proposition 19 passed so that they can try to carve out a little “pot-free” city. Maybe their thinking is,

Let’s allow the rest of California to go to pot. But if we vote for this Proposition, it says local governments can decide for themselves. We could prevent the evil weed from being available in our city!

Using arguments I raised in my previous articles, maybe they could do this.

And the “intent” argument those who disagree with me promote doesn’t necessarily prevent this. Part of the reason it doesn’t is that we don’t even really know what the courts will think the “intent” of the voters, as opposed to the promoters, was on this issue.

There is plenty of language — for a court that wishes to accept the point — that the drafters of Proposition 19 intend a loosening of laws relating to marijuana. The drafters do not appear to wish to see Proposition 19 reverse the gains of Proposition 215, either deliberately or accidentally.

For example, under proposed subsection “B. Purposes,” both items number 7 and 8 suggest that the permissive aspects of Health & Safety Code sections 11362.5 and 11362.7 through 11362.9 would not be affected. The specific language is not the infamous “notwithstanding any other law” phrase that Richard Lee tried to point me towards. In both places, after suggesting what would be illegal, or what limitations a city could place, the respective Purposes state:

…except as permitted under Sections 11362.5 and 11362.7 through 11362.9 of the Health and Safety Code.

But Proposition 19 is a long and complex piece of legislation. And as I previously noted, it contains laws applicable to private individuals (proposed H&S section 11300) and laws applicable to commercial activities (proposed H&S section 11301). For reasons given previously, I continue to be unconcerned about the impact of 11300 upon medical marijuana patients’ rights; it is 11301 which concerns me.

Even under current law, cooperatives and dispensaries are technically commercial in nature. As also previously discussed, the fact that current law arguably allows them — at least cooperatives — to exist hasn’t stopped local governments from trying to shut them down via local zoning ordinances or public nuisance laws. Now comes section 11301 which (I’ve said this all before) supersedes the laws implemented by the CUA and MMPA because it is an initiative of the people (thus not susceptible to being struck down as a portion of the MMPA was in People v. Kelly) and because it is later in time.

Section 11301 — I think — allows local governments to do what they could not really do before: stop people from operating commercial enterprises within their locale, including cooperatives and dispensaries.

Maybe a court — maybe all courts — will strike down such ordinances based on an “intent” argument which says Proposition 19 only intended, and the voters who voted for it only intended, that restrictions on marijuana be loosened and not tightened.

I still maintain this is not clear. Much of this “intent” argument — that the law is intended to loosen and not restrict — is being made in unofficial ways. The drafters and proponents of Proposition 19 are trying to convince the public of it. They are using a variety of media, including rallies — one was just held in Anaheim yesterday — as well as advertising. But as Schacter’s study noted:

[C]ourts widely ignore media and advertising as sources of popular intent even though…social science research about voter behavior in ballot campaigns suggests that voters most regularly consult and seek guidance from these sources.⁴

Instead,

[C]ourts widely subject citizen-lawmakers to the same standards as legislators and generally confine their search to sources commonly used in construing legislative law.⁵

The one exception, Schacter notes, is “official ballot materials prepared in connection with proposed initiatives.”⁶ Even there, however, precedence is given to the statutory language contained within the initiative.⁷ Ironically, this is the part of the ballot materials most often ignored by voters.⁸ Furthermore, California courts only rely on ballot materials to decipher “intent” 53% of the time.⁹

No matter how you slice it, the sources for judicial interpretation of Proposition 19′s “intent” — should the need arise — are primarily going to be the normal, formal, texts, such as the law itself and other laws or treatises the courts deem relevant. And here, the “intent” is ambiguous. For while Proposition 19 states that it “intends” to loosen restrictions on marijuana cultivation, possession and use, and states that its purpose is to benefit everyone by regulating cannabis like we do alcohol (e.g., by legalizing it, with restrictions and conditions), Proposition 19 also allows local governments to “opt out.” When they don’t “opt out,” it allows them to “control” and “regulate.”

Both those latter intentions or purposes or whatever you want to call them — for they come in the actual text of the proposed laws themselves — put a set of brakes on the intent to loosen and the purpose to legalize with restrictions and conditions. Both recognize and make allowances for the possibility that a local government may be hostile to the basic stated intent and purpose of Proposition 19.

Okay. So where does that leave us?

I think it leaves us with potentially most of the rights conferred upon medical marijuana patients intact. At least when it comes to what they, themselves, do. Arguably, it allows local governments to legislate cooperatives and dispensaries out of existence, which is something that under current law might not be possible.

What we need, I think, is a voter-sponsored initiative that spells out what local governments can and cannot do with respect to this issue. The Legislature might not be able to fix it, for the same reason they could not place limitations on quantities via the MMPA: Proposition 19 is an initiative. (On the plus side, Proposition 19 allows what I call “one-way amendments”: they can loosen any limits Proposition 19 specified, but they cannot be more restrictive. Thus, if the Legislature had the political will and stamina, they could possibly stop local governments from passing restrictive ordinances. But then we get into a whole new ball of wax regarding what requirements the Legislature can place on cities, which generally have some say over how they govern themselves. This article is long enough already.)

The bottom line, though, is that none of my articles should be taken as stating — as one commenter asked — that Proposition 19 is terminally flawed. As I noted in my own response to her, I don’t think that I’d go that far. I do worry that there are potential issues we should be looking at more closely.

Lastly, I intend perhaps a couple or so more articles on Proposition 19. So if you’ve found what I have to say interesting, stay tuned. Now that I have a copy of what will be going out in the Official Voter Information Guide, I’m going through it all more carefully.

If you ask me, both the Proponents and the Opponents are trying to mislead voters.

Neil MacCormick, Rhetoric and The Rule of Law: A Theory of Legal Reasoning (Law, State, and Practical Reason) (2005) 122.
Emphasis in the original.
Jane S. Schacter, “The Pursuit of ‘Popular Intent’: Interpretive Dilemmas in Direct Democracy” (1995) 105 Yale Law Journal 107, 124. She went on to point out that the courts don’t get this; the rhetoric of judicial interpretation still endorses the idea of some monolithic “voter intent” when it comes to initiatives and is even stronger concerning the multimember legislative bodies.
Schacter, supra, at 111.
Id. at 120.
Ibid.
Id. at 130.
Ibid. As Schacter also here notes, even ballot materials are usually ignored by voters!
Id. at 122.

Hobson's Choice

Sun, 29 Aug 2010 17:10:46 GMT

It has been an article of faith that the Bush tax cuts only went to the richest. Sure, the facts disprove that argument, but through their control of the media, the notion that only the rich received any benefit of the tax cuts has endured and prospered. That is about to come to an end. The Democrats are stuck. They can allow the tax cuts to expire, and pretend to be fiscally responsible, even

Speaking Truth to Power

Sat, 28 Aug 2010 22:21:01 GMT

That phrase above has been used for as long as I can remember as a sort of badge of courage by the Left, in that they don't agree with the popular ideas, but instead want the true ones. Skip forward to today, and the Left is now "The Man." Do they speak "Truth to Power?" Absolutely not! Instead, they shout down any who would disagree with them. But the problem for the Left in shouting down "

Why is This Man Smiling?

Thu, 26 Aug 2010 01:59:39 GMT

Because he doesn't have a clue? From Karl Rove: In what will rank as one of the all-time presidential PR disasters, we're now well over half way through what the White House called "the summer of recovery." And what a recovery it's been. Earlier this month, first-time claims for unemployment hit a nine-month high. The unemployment rate remains at 9.5% and 18.4% of workers are out of a job,

“I don’t think you want me to waste my time to read every page of the healthcare bill,”

Wed, 25 Aug 2010 19:37:07 GMT

The problem I have with this, is that if Max isn't reading it, he sure as heck isn't writing it either. Which may explain why student loans, and the requirement for 1099s for the sale of gold are in Obamacare. And if he is farming out the writing, who exactly is doing it? What are their motives, agendas, etc.? Because if the health insurance lobby is writing this mess, what do you think the

Scary Thoughts

Wed, 25 Aug 2010 13:30:29 GMT

The Hill is saying that the latest awful news about home sales is more difficulty for the Democrats. Which reminded me of an interview with Rep. Debbie Wasseman-Schulz of Florida (Delusional) who was trying to put the best spin on the economy that she could. She was asked if she thought the President's economic plan was working, since Florida has an unemployment rate of over 11%. Ms. Debbie

Horror Movie

Sat, 21 Aug 2010 15:23:40 GMT

And it only goes through May.

Expecting the Unexpected....The Crisis Audit

Fri, 20 Aug 2010 19:17:16 GMT

We’ve talked before about crisis prevention in general. With any of the crises we’ve seen this summer, it would be hard to say, “This came completely out of the blue.” That’s because we all have an inkling of what could happen but few of us want to think about the worst case scenario. But without actually identifying potential crises, a company can never prevent it and will, in turn, not be prepared to deal with it effectively.

So CEOs and General Counsels need to think like their security officers and analyze the risk of a crisis by looking at the company’s vulnerability to a specific threat and identifying ways to lower that risk. Every police officer, federal agent and emergency manager knows the equation:

Risk = Threat x Vulnerability

Threats come in all forms. If you are a food processing company, it could come in the form of some health outbreak caused by a system failure or product tampering. There could be a catastrophic accident (such as we’ve seen recently in the Gulf), environmental harm, either from the accident or manufacturing processes, technological breakdowns, rogue employees (some rogue stockbrokers come to mind). The best way to prevent these potential crises is to sit down with senior management to examine the worst case scenarios, in order of likelihood, and assess the reputational, legal and economic damage each could do to the company.

Next, identify what systems are already in place to prevent these threats from occurring. Where a company can really benefit economically from a crisis audit is by helping the General Counsel see what systems, trainings, and compliance regimes are in place, inadequate, or not properly implemented. Do a cost/benefit analysis on what else could be done to reduce the threat. Sometimes it just isn’t economically feasible to “harden” every target, but keep in mind the cost of the potential legal liability if your inaction could be found “negligent.”

Third, develop a plan of action in the event that this threat becomes a reality. Make it specific, even down to potential messages that could be used in the first few hours. Identify which managers would be on the “crisis response” team and which law firms you would use to handle that particular type of crisis.

Finally, but probably most importantly, make sure these crisis audits are done under privilege, through the auspices of the General Counsel. Bring in unit managers and, ultimately, your PR team, but make sure that all communications go through the legal department.

A crisis audit, if done regularly, will also help you establish an “early warning system” and avoid the crisis before it hits.

Liberally Racist

Fri, 20 Aug 2010 00:39:56 GMT

Joe Conason continues to make an ass of himself by finding Boogiemen where there are none. His premise is that not all conservatives are racists but all racists are conservative. This is a wonderful argument because it is absolutely impossible to disprove. If you lined up all of your conservative friends and could totally and completely prove that they are not racists, Conason and his kind

Danger! Danger!

Wed, 18 Aug 2010 18:20:00 GMT

What do former Gov. Rod Blagojevich, Martha Stewart, Scooter Libby, Henry Cisneros and so many others have in common? All have been convicted of the crime of Lying to the FBI, and nothing else!!! No other convictions for theft, perjury, anything! In other words, during the investigation of a non crime, a crime was committed that would never have existed if the first non crime hadn't been

How to Get Montana Out of the Recession and Rich at the Same Time

Tue, 17 Aug 2010 23:32:00 GMT

California is thinking about taxing Internet transactions by requiring vendors to collect and remit sales taxes for all transactions that involve their citizens. A natural enough thing, since they spend most of their time trying to find new revenue streams, having exhausted all of the rest. But I have a plan! Montana needs to pass the following law: 1. All commercial transactions conducted by

Speaking of the Mosque . . .

Tue, 17 Aug 2010 01:06:28 GMT

Greg Gutfield wants to put a gay bar next to the proposed mosque near Ground Zero for the purpose of fostering understanding and appreciation of other cultures and to break down barriers that prevent our understanding of each other. Along those same lines, I think that we should also consider building a cathedral at Abu Ghraib.After all, the people who committed those crimes were not true

Where Do You Go . . . .

Tue, 17 Aug 2010 01:04:59 GMT

to get your reputation back? Tom Delay has all federal charges dismissed. He still has pending state charges, but that prosecutor is a partisan hack, and the complaint should be dismissed. From the article: DeLay had harsh words for Pelosi for urging ethics probes of him during his time in Congress and then using him as a campaign punching bag. Pelosi recently defended her party’s ethics

The Good Thing About The Mosque Debate

Mon, 16 Aug 2010 13:30:03 GMT

At last, the Democrats have discovered Freedom of Religion and Property Rights. I just don't think that their new discovery will last longer than the controversy.

That Ye Be Not Judged

rick@rhdefense.com (Rick Horowitz) — Sun, 15 Aug 2010 00:17:36 GMT

I previously wrote a post titled “Judge Not,” so I couldn’t go with that again. Then it occurred to me that the second part of Matthew 7:1 from the book read by almost as many Christians as non-Christians fits the current post better anyway. Mike Cernovich, over at Crime & Federalism, has been doing a [...]

Mike Cernovich, over at Crime & Federalism, has been doing a bit of writing recently about — well, about social problems which are not necessarily — at least not straightforwardly — related to the law. At first, I was disinclined to read, because the “law dog” in me was hungry. I wanted to read something specifically discussing something interesting, but related more directly to the law. But Mike is such an interesting writer that I kept on reading article after article. (I periodically play “catch up” with the blogs, like his, that I like to read, but just can’t get to every day.)

Mike’s articles like “American Rage” and “Is Omar S. Thornton a Black Joe Stacks?” are thought-provoking looks at racial and economic disparity within the United States. By the time I reached “Links: The United States is a Farce Edition” and “Illegal Immigration: Self-Interest Disguised as Morality,” I knew I was going to write this article.

The light went off because I’ve been thinking for some weeks about something specific a judge did in one of my cases. Something with which I’ve been struggling to come to grips. Something that demonstrated a clear-cut bias. You know, like having an ex parte discussion with the victim, who just happened to be a law enforcement officer, and then trying to call me to task for what the officer told him.

And then there was an article about gay marriage and the utter destruction that Vaughn R. Walker has allegedly brought down on the heads of all who value marriage and rational societies by “de-legitimizing” marriage.

Now there is the new debate over illegal immigration and the desire to “fix” the problem by fucking up our Constitution.

My brain sometimes latches onto what I call “an inchoate idea” — something I realize I’m thinking about, but cannot quite put into words — and then it just “stews.” While it’s stewing, anything else I read seems to be read on multiple levels. One is the level of simply understanding what was written. Another is me trying to think what I think about it. But when something significant is “stewing” inside me, as it has been, then everything I read is somehow savored in a slightly different way than it might be otherwise.

It’s kind of like adding a “new” spice to a sauce while cooking.

And just like that, I don’t always know what’s going to come out of it.

What I think I’m getting right now is the flavor of recognition. I know now why all the above articles — and what I thought previously was inordinate dwelling over a judge’s mistake — seem like they go together for me.

It’s the subtle interplay of a lack of understanding on the part of the judiciary and a lack of education on the part of “the People.”

Both are part of a recipe for disaster.

In McIlheran, aside from the obvious ignorance and bigotry, I see a complete lack of basic knowledge regarding the underpinnings of these United States. McIlheran would, no doubt, think I have this wrong. From what I can tell, again aside from the obvious ignorance and bigotry, he mistakenly thinks that marriage “always and everywhere” has necessarily been “between complementary sexes: not identical ones.”

Ask any classically-trained anthropologist how true that is. Or ask a historian. Same-sex marriages have a long history. Even in “Western Civilization.” I’m not going to veer into a detailed disquisition on that. Suffice it to say if you seek, you shall find. Same-sex unions are not new; neither are same-sex marriages.

And, in all frankness, it would not matter if McIlheran were right as concerns whether marriages have always involved one man and one woman in the past. He’s not right. But it doesn’t matter. Because our United States leaves open the possibility for free people to decide to change that by marrying whomever they wish to marry, even if that person happens to be of the same gender.

What I want to focus attention on, though, is not the issue of same-sex marriage. I want to talk about what kind of country we have here. How does the United States work? Or, rather, more specifically, how does law and the legal system work in the United States? How come, for example, “the will of the voters” can be “thwarted” by one judge? One! And why is an allegedly gay judge allowed to make such a critical ruling on whether or not gays and lesbians can legally marry people of the same gender as them?

The first thing any intelligent person should be able to put to rest is the question of whether or not Judge Vaughn Walker’s being gay matters. “He should have recused himself from this case since he is a practicing homosexual,” some have said. If this actually is true, then why is the obverse not true? “He should have recused himself from this case since he is a practicing heterosexual,” makes as much sense.

I mean, if someone’s sexuality is going to prejudice him favorably toward this issue, why would it matter whether he was gay or straight? Is there not as much danger of a heterosexual judge refusing to correctly analyze and adhere to precedent as there is for a homosexual judge? Do heterosexuals automagically do the honorable thing vis-á-vis homosexuals just because they’re heterosexual? Or do we have to have a pre-trial, wherein the judge is analyzed by psychotherapists and determined not to harbor any ill feelings towards homosexuals before being allowed to judge them? Should African-Americans only be judged by non-African-American judges? Is it good enough for a white judge to sit in judgment of a white person accused of a crime, so long as one of them is Irish and the other is Polish, German, or Scandinavian?

This idea is ludicrous. But I understand how it is that some people give it credence. The fault lies with our judges. Today, increasingly, it really does matter “who the judge is.” The judge whose behavior has bothered me for so long is proof of that, if you ask me, as are numerous others.

Hell, judges actually promote this idea. “I am a Law and Order Judge!,” they proclaim when they run for office. By this they mean that they are pro-prosecution. In fact, the posters with which they litter our towns will often proclaim “Former Prosecutor,” or just “Prosecutor,” in words nearly as large as their own names. They’ll also trumpet that law enforcement supports them. You absolutely will never hear a candidate for judgeship brag about having been a Vigorous Defender of the Accused. You won’t hear that law enforcement hates them for forcing them to obey the Fourth, Fifth, and Sixth Amendments. Not going to happen.

Nor do they actually state that they will follow the law without regard to either their own personal predilections, or the nature of the accused individual. After all, particularly as pertains to the latter point, this could make it appear that they’re willing to coddle criminals.

If judges actually followed the law, regardless of their own personal bent, what they said while campaigning would not matter. They don’t, though. And their campaign statements are intended to communicate that point to us.

Thus, judges having taught and promoted to us this truth about how the system works have earned our distrust, our enmity, regarding the way they rule.

It is unfortunate that even the exceptions — the judges who do not allow their own preferences to control — get swept up in this sentiment, because there are so many judges who indulge their preferences rather than follow the law. But you can’t have the majority of judges brag to the people at election time that they’re the type of person who will slant the rules towards the prosecution and then act all surprised when the people get upset that not all judges will slant the rules the way the people want.

I’m not saying that a judge’s personal preferences should never matter. To some extent, it is unrealistic to assume that a judge’s personal preferences will not have an impact on how he judges. Human beings are not capable of completely divorcing their own values from the judgments they ultimately make. Judges, however, should try harder. And the pro-prosecution bent of contemporary judges is proof that they do not.

Wha–? Huh? Why do you say that a pro-prosecution bent proves judges do not try to divorce their own values from their judgments? The answer is simple: the laws of our land were originally slanted in favor of accused people. On purpose. Our Founders knew that the power and resources of an individual accused person are no match for the power and resources of the government. This is true even in this time of budgetary constraints.

That old saw about everyone being entitled to a fair trial? That’s everyone accused of a crime. There’s no constitutional guarantee for the government to get a fair trial. You want to talk about rights that aren’t found in the Constitution? There’s a right that’s not found in the Constitution!

Nor should there be.

The reason for this is that being accused of a crime and being prosecuted by the government comes with some serious risks for innocent citizens. The mere fact that someone has been arrested works against them. Do you really think the legal fiction of “presumed innocent” applies in our courtrooms? You haven’t been called for jury duty, then. You haven’t sat in a courtroom as a lawyer and tried to figure out how to deal with potential jurors who sometimes honestly state, “Well, he was arrested. He must’ve done something. He might not have done exactly what he’s accused of, but he did something or he wouldn’t be here.”

Or dishonestly refuse to state it, though they think it.

At any rate, that’s a presumption of guilt. At least as to “something.” It is not a presumption of innocence.

Over hundreds of years — with respect to some issues, longer than that — legal experts have learned that the best way to ensure that innocent people aren’t convicted is to tip the scales in their favor. It’s supposed to be hard to convict someone.

But it’s not. With all due respect to the prosecutors I know who are good attorneys, you do not have to be a good attorney to win cases if you are a prosecutor. And there are a number of prosecutors who are most decidedly not good attorneys who prove this every day. In some cases, you merely need to make the accusation. (Sex crimes involving children are the most obvious place this is true, but it’s true in many other cases as well.) Good defense attorneys can win cases. But a prosecutor has to really screw up for a bad defense attorney to win.

That’s why our Founders, who knew they were establishing a government of laws, and not of men, tried so hard to hamstring the government, to make sure that trials were unfair — to the government.

Governments are typically more powerful than people. No matter how hard you try to limit them, this is just how it is. This makes governments potentially dangerous to ordinary people. Life, liberty, and the pursuit of happiness is not something we can expect to enjoy in the face of an unrestrained government.

This is where the other part of the misunderstanding I wish to talk about comes from.

I have noted that our system was deliberately slanted in favor of accused persons. This is because, as I mentioned above, it was slanted against the government. Restrictions were placed on what government could do.

But this is true not just in the arena of criminal defense; it is true with respect to all activities of the government. Our government was deliberately limited so as to prevent it from trampling over us, whether it was in a criminal trial, or any other area of our lives.

Now, in the United States of America, it has long been believed that the government is a government “of the people, by the people, for the people.” This is partly true. This is how it was intended. We are the government, in theory. We are in control.

In California — as well as some other states — this form of government has found extreme expression in the Initiative Process. One or more of “we, the People,” can propose a new law. If we get enough other people to think it’s a good law, or at least sounds good enough, then “the government” will put it up for a vote by the rest of us People. And if it passes, it becomes the law that theoretically applies to everyone else, even those who didn’t vote for it. Even if almost half of us did not vote for it. It will still apply to all of us.

In fact, it could be a law that only applies to certain ones of us, like gays and lesbians. Every single gay and lesbian person in our state could vote for, or against, that law, but still lose. So a law could be passed that only affected every single gay and lesbian. Every single gay and lesbian could vote against that law. But it could still pass.

What a great way to oppress people we don’t like.

But the people who founded this United States of America knew that this could happen. And they didn’t think that was fair. So when they created the United States of America, they deliberately gave it only certain powers. The United States of America — the government — we, the People — could only do certain things. Our collective ability to pass laws only goes so far, because our power only goes so far. There are limitations. This is what is meant by “a limited form of government.”

The United States Constitution, which constituted, or created, our nation, is all about limiting government. Certain powers are given to the government to allow it to do what it necessary to protect our freedoms — to ensure for each of us life, liberty, and the pursuit of happiness as we see fit with minimal necessary interference — and no more.

Fears that limiting the power of government — man, were those guys prescient! — would not be enough caused certain of the Founders to insist upon a Bill of Rights. This was done not because we needed to know what rights we had. It was already believed that all of us were created equal and that all of us equally held unalienable rights — rights that no one, not even other voters — could trample. These rights included, among others, the (again) unalienable rights to Life, Liberty, and the Pursuit of Happiness.

Which, I guess, would include marriage which, for awhile, for many people, brings happiness. Or so they say. (In my own life, this appears to be true, but, hey, who am I to speak for everyone else?)

And that brings us back to judges.

In our United States of America, it is judges who interpret the Constitution. They, as Chief Justice Evan Hughes once put it, are “the safeguard of our liberty and of our property under the Constitution.” Benjamin Franklin and Thomas Jefferson would have gone farther, downplaying the protection of property; replacing that idea with happiness.

It is imperative, judges, that you remember that our United States were founded on the principle that governmental power is to be mistrusted; it is not to be favored; it is to be limited, by you, judges, both inside and outside the courtroom. Our Constitution was meant to ensure that. And you are meant to uphold our Constitution.

“For you will be treated as you treat others. The standard you use in judging is the standard by which you will be judged.” (Matthew 7:2.)

Toke It Easy, Man: More on Proposition 19

rick@rhdefense.com (Rick Horowitz) — Sat, 14 Aug 2010 20:40:56 GMT

My last post, “Blowing Smoke: Proposition 19 & Medical Marijuana,” has perhaps drawn more readers than just about any other post I’ve written (including “A Drowning Man”). Some comments indicate an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to undo the [...]

My last post, “Blowing Smoke: Proposition 19 & Medical Marijuana,” has perhaps drawn more readers than just about any other post I’ve written (including “A Drowning Man”).

Some comments indicate an incomplete grasp of what my original post was intended to point out: there is a possibility for Proposition 19, as worded, to undo the protections of the existing rights of medical marijuana patients.

This post, therefore, is another attempt to focus attention on that point and explain why, regardless of the intentions of Proposition 19 proponents, Proposition 19 may contain within it the seeds to undoing, at least in part, what was accomplished with Proposition 215, the Compassionate Use Act, which legalized marijuana in California for medical patients who needed it.

I am left with the impression that, like the original writers of Proposition 19, many commenters believe that governments will willingly acquiesce to both the stated intentions of Proposition 19 and what they believe are the wishes of the voters. This does not always happen. This is why, in the old days, laws were written by lawyers with particular experience writing laws. Writing laws is a science which aims at ensuring that the laws themselves are not susceptible to misinterpretation or misapplication. It is not simply a matter of knowing something about marijuana — e.g., how it is used, grown, transported, sold, or otherwise operates in the real world — and knowing the goals that you are after. It’s also about knowing how laws work, or don’t.

There actually are people in the world who want their particular point of view to control what happens, regardless of what you, me, or anyone else may wish.

Please understand, my questioning of Proposition 19 is not aimed at trying to prevent the legalization of marijuana; i.e., I am not trying to shoot down Proposition 19 in order to prevent what its proponents wish will happen. Quite the contrary, I firmly believe that marijuana should be legalized. I personally have never benefited from marijuana (except as an attorney who gets paid to defend people who try to utilize it in accordance with medical marijuana objectives and laws). I don’t use it. But I know numerous people who do, including some about whom I care very much.

Even if there were not people about whom I care very much who use it, I would want it legalized. At heart, I am libertarian. I believe government should be as small as possible and regulate our lives as little as possible. I would be quite happy in a world with very, very few laws and only think those directly related to discouraging and punishing harmful activities should exist.

Nor do I have ulterior motives because I sometimes make money defending medical marijuana patients. Frankly, even the proponents of Proposition 19 at the recent conference I attended referred to the Proposition, jokingly, as “the Marijuana Lawyer’s Full Employment Act.” If Proposition 19 passes, attorneys like me will probably get even more clients, not less. So I’ve no business reason for wanting to see Proposition 19 fail, either.

My current tendency to think Proposition 19 is not a good proposition is based upon my fear that it may constitute a step backwards for those people who actually need marijuana, as opposed to those who “merely” wish to exercise their rights to recreational use. I think people should be able to do both, but I think medical marijuana use is much more important.

Because, as I said, there are people who do not share my views, who want their views to be controlling, regardless of any law that might try to prevent them from doing so, I have concerns.

Some commenters to my previous post make a lot of noise about “the intent” of Proposition 19. Their statements about the intent of Proposition 19 appear to be accurate. I don’t know that I’ve ever denied that, or that anyone has heard me object that people making arguments about “what the intent is” are wrong.

I am pointing out that intent is not enough.

I practice law in Fresno, California. My practice covers Fresno, Tulare, Kings and sometimes (ugh) Madera counties. These are some of the most conservative counties in California. In the “red state/blue state” drawing of maps, if all California were like the counties in which I live, California would be red, not blue. The deepest, darkest red.

Law enforcement, government officials, and ordinary citizens in our area who do not “appreciate” marijuana, who do not like marijuana, do not care what the intent of Proposition 215, (possibly) the MMPA, and the now-proposed Proposition 19 may be. They do not want marijuana in their backyard; they do not want marijuana in your backyard; they do not want marijuana in anyone’s backyard.

Growing it indoors doesn’t change the equation much.

It is important that any proposition intending to legalize marijuana keep this in mind. Laws that intend to do things that those with power do not want done are not automatically successful. Look at the civil rights war if you want a lesson on that issue. Forget intent: laws requiring the integration of schools in the South during the 1960s were seldom effective in and of themselves.

I know. I lived there.

So when one of my commenters, Dag, valiantly and with voluminous quotation of Proposition 19 and other texts attempts to argue for the intent of the Proposition, he misses my point.

I know, I know. People hate to hear that they’ve missed the point. The response is, “No! I did not miss the point! I tried to show you that the point is wrong!”

Okay. You missed the point. You cannot use the language, which I have already acknowledged, stating what the intent of the law is, to counter my argument that the intent of the law is not enough to protect against those who do not like what the law intends. While the intent of the law is important to those of us who wish to see that intent followed, it is irrelevant to those who do not.

More importantly, while the intent of the law assists in helping to interpret the law, the intent of the law is not the law. This is the primary weakness of Proposition 19. A lot of time and “ink” (so to speak) may have been spent on laying out the intent of the law. If the plain language of the law itself allows something contrary to the intent, there is a problem.

One point proponents of Proposition 19′s “intent” miss is this: the laws to be implemented by the Proposition do not only “limit the application and enforcement of state and local laws relating to possession, transportation, cultivation, consumption and sale of cannabis”; they also introduce their own limitations relating to possession, transportation, cultivation, consumption and sale of cannabis.

Furthermore, one glaring statement of Proposition 19 should serve to demonstrate that — as far as its intent — it hopes to do that which cannot be done. The Proposition states that, among other things, it intends to limit “application and enforcement of state and local laws” which might be passed in the future. This is something that simply cannot be done.

Think about that. A law is passed today. That law states that any other laws that the legislature, voters, or anyone else may wish to pass regarding its subject matter in the future are intended to be limited by the law which is passed today. Thus, for now and forever, anyone trying to pass any law that hasn’t even been thought of as being necessary today cannot get it passed in the future when it is decided that it is necessary? Or that this today law intends to limit that future, as yet unthought-of, law? No matter what it might be? Good or bad? And we believe someone is going to be bound by that?

Not even the United States Constitution does that. While the Constitution does limit what governments can do — and, despite the stupidity of anti-gay-marriage assholes, it also limits what voters can do — it does not limit the ability to pass laws in the future which will be contrary to the Constitution. It simply requires that before that can be done, we would have to amend the Constitution to allow such laws.

Even that isn’t always required, as far as our government is concerned. Consider that our elected officials properly believed a constitutional amendment was required to make alcohol illegal, but decided no such amendment was needed to make marijuana (and other drugs) illegal. Consider the fact that the Constitution is ignored by our government, particularly when it comes to the so-called War on Drugs, on a daily basis. The War on Drugs is the number one reason for the desecration, the shredding, the loss of the protections of our Constitution and its Bill of Rights.

And we think this drug law will be different because it contains a lengthy statement of intent? If anything, history should teach us that a law that intends to remove a drug from the list of targets in this long-running, empire-building, military-industrial-complex-driven war would need to be as careful and specific as possible in stating what the law itself will be.

But I digress.

Dag states, among other things, that “since there is no specific language exempting 215 from the intent to limit clause 215 is unaffected.” This is patently false.

The Proposition specifically allows local governments “notwithstanding any other provision of state or local law,” to “control, license, regulate, permit or otherwise authorize, with conditions,” various activities necessary to obtain, grow, or consume marijuana.

“Notwithstanding any other provision of state or local law” means that no other state or local law — including the laws implemented by Proposition 215 — prevent local governments from passing new local ordinances that control, license, regulate, permit or otherwise authorize, with conditions, the various activities designated in the proposed Health & Safety Code section 11301.

Anyone who thinks this does not mean that local governments won’t try to place limitations on marijuana users — including medical marijuana users — needs only to stop for a moment and remember what happened with the Medical Marijuana Program Act passed by the legislature after Proposition 215 became law.

Among other things, the Medical Marijuana Program Act, or MMPA, caused all medical marijuana users who wished to take advantage of the Compassionate Use Act and theoretically avoid arrest to register with the government. Now, I know, some people don’t care about their privacy. They don’t care if the government puts cameras everywhere, quietly asks for information on their Internet use, or keeps track of who smokes dope. After all, as long as you aren’t doing anything illegal, you shouldn’t even care if the government posts a tape recorder and video camera inside your car and home just to be sure, right?

The second thing the MMPA tried to do was place limits on medical marijuana users which the Compassionate Use Act had not done. The Compassionate Use Act said medical marijuana users could possess or grow amounts reasonably necessary for treating their medical issues. The legislature thought that was “too vague,” so limitations were added by the MMPA. That some patients needed more than the limits allowed was irrelevant. Fortunately, the California Supreme Court overturned that limit in People v. Kelly (2010) 47 Cal.4th 1008 [222 P.3d 186].

Do not think this means that Dag and the others are right. Do not think this means “intent wins.” That is not what the Kelly Court said when it removed the limitations the MMPA had created. The Kelly Court looked at the actual wording of the law itself. The Kelly Court noted that the Compassionate Use Act could not be modified by the legislature without the approval of voters. That’s how initiatives work in California. Unless the initiative itself allows the legislature to change what the initiative allows, the legislature cannot do so. Since the Compassionate Use Act did not give permission for modification, the legislature could not modify it.

As it turned out, the Compassionate Use Act actually specified a limit to how much marijuana could be grown and possessed. The limit was the amount reasonably needed by the patient. So when the MMPA tried to limit that to a specific amount, that was an illegal modification of the Compassionate Use Act.

Proposition 19 specifically undoes that. Proposition 19 is an initiative. It therefore may legally modify the Compassionate Use Act. It does this by permitting local governments, “notwithstanding any other provision of state or local law,” to pass their own laws regulating and controlling marijuana. You can read it this way: “No matter what any other provision of state law, such as the Compassionate Use Act, might say, local governments can do what section 11301 allows them to do.” That is, local governments can “control, license, regulate, permit or otherwise authorize, with conditions,” the activities necessary to obtain, grow, or consume marijuana.

Remember, Kelly did not stop the legislative attempt to limit quantities of marijuana that medical marijuana users could grow, possess, or transport because the limitations were contrary to the intent of the Compassionate Use Act. Kelly stopped the legislature because of the wording of the law itself, which had already provided a limit on quantity.

The concern I am raising about Proposition 19 is not that it has bad intentions. It doesn’t. It has good intentions. But the proposed law was apparently written by someone who fails to completely grasp the ways in which those who do not approve of marijuana might try to legally thwart that intent.

By allowing local governments to control and regulate cultivation, transportation, sale, and consumption of marijuana “notwithstanding any other provision of state or local law,” including the provisions of the state laws known as the Compassionate Use Act, Proposition 19 potentially allows anti-marijuana local governments to place limitations on everyone who uses marijuana, including medical marijuana users.

And the mere fact that my argument — even if you don’t like it — makes sense shows that this is a danger. When — not if — some local government tries to pass an ordinance that effectively makes it difficult, or impossible, to grow or obtain medical marijuana, some court could very well look at this the same way I just did.

I hope they don’t, but there’s nothing in Proposition 19 that prevents it.

Blowing Smoke: Proposition 19 & Medical Marijuana

rick@rhdefense.com (Rick Horowitz) — Sun, 08 Aug 2010 02:46:56 GMT

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 [...]

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

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 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

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

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

However, amendments to statutes implemented via an initiative can also be amended, or even overruled, by initiatives.⁶ 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.

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.
People v. Kelly (2010) 47 Cal.4th 1008, 1012 [222 P.3d 186].
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].)
People v. Kelly, supra, 47 Cal.4th at 1043.
People v. Kelly, supra, 47 Cal.4th at 1045-1046.
Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].