Saturday, October 30, 2010

William Panzer dissects Prop 19

"It's about 1:40 a.m. and I just watched Cannabis Planet's Prop 19 show in which I was misquoted by Dragonfly. I've been hanging out on the sidelines in the ongoing debate within the movement. Now that we're getting close to election time, I thought I'd share some thoughts.

"First, Prop 19 is not "legalization" and I don't believe those in the movement who are against Prop 19 are against legalization. To the contrary, I believe most movement opponents are against 19 because they are FOR legalization.

"Every anti-cannabis law on the books today will remain unchanged if Prop 19 passes with a single exception: a new offense is added, Health & Safety Code §11361(c) which provides that a person 21 or older who gives less than an ounce of cannabis to a person 18-21 (as, for example, a 21 year old boy handing a joint to his 20 year old girlfriend) is guilty of a misdemeanor and subject to 6 months in jail and a $1000 fine. Under current law, the offense would call for a $100 maximum fine and no jail.

"The fact that 19 fails to repeal or even amend any other section of the Health & Safety Code is both it's greatest flaw and, ironically as I'll explain below, perhaps its saving grace.

"The most common fear is that 19 could potentially impinge on medical cannabis rights. Proponents have pointed to the purpose language as evidence that it would not effect 215/420. In reality, the court's do not look at the purpose language, only resorting to it if an ambiguity is found in the body of the statute. As for the body of Prop 19, I am less than thrilled with the drafting. There are inconsistencies and the language is loose enough to support several different interpretations. If an appellate court were inclined to find that Prop 19 preserved all 215/420 rights, there is language in 19 to support that. If, on the other hand, an appellate court was inclined to find that 19 allowed local municipalities to impinge on 215/420, there is language that could support that position too. The bottom line is that the body of the statute could have clearly stated that local municipalities are not authorized to pass any ordinance or regulation that infringes on 215/420 in any manner, but it doesn't.

"As scary as the above may seem, I have now come to the conclusion that it is likely moot. I now believe that it is likely that §11301 "Commercial Regulations and Controls", the section of Prop. 19 that authorizes local government to legalize and regulate cultivation, sales, taxes, etc., will likely be ruled invalid as an unconstitutional delegation of powers in violation of the following sections of the California Constitution:

SEC. 16. (a) All laws of a general nature have uniform operation.
(b) A local or special statute is invalid in any case if a general
statute can be made applicable."; and


SEC. 5. (a) It shall be competent in any city charter to provide
that the city governed thereunder may make and enforce all ordinances
and regulations in respect to municipal affairs, subject only to
restrictions and limitations provided in their several charters and
in respect to other matters they shall be subject to general laws.
City charters adopted pursuant to this Constitution shall supersede
any existing charter, and with respect to municipal affairs shall
supersede all laws inconsistent therewith."

"Because Prop. 19 fails to either repeal or amend current cannabis criminal law, we would have a situation where, for example, state law dictates that sale of cannabis is a felony, yet Prop. 19 gives cities and counties authority to override this state law. This is an authority that is specifically denied to local municipalities in the state constitution. Thus Prop. 19's goal of authorizing local government to override state law would require a constitutional amendment. The saving grace is that if the power to override state law prohibiting cannabis cannot be legally delegated to the locals, than the power to impinge on 215/420 similarly cannot be delegated to local authorities.

"The most amazing factor of this whole debate to me is how Prop. 19 is being almost universally portrayed as "legalization" in the media and by many in our movement who, quire frankly, I suspect have never actually read the text of the initiative! What makes little sense to me is that this initiative, which doesn't legalize cannabis, is being sold as legalization. It seem to me, it would make more sense to draft an initiative that does legalize cannabis and sell it as regulation.

"Nevertheless, because it is being touted as legalization, if it passed it would be perceived around the world as legalization. It would also give some modest protections to cannabis users. It essentially protects you from getting an infraction ticket in your own home so long as there are no children under the same roof. The greatest benefit would be to persons who wanted to cultivate a modest indoor grow, or about one healthy outdoor plant.

"I guess my conclusion is that though Prop. 19 was poorly thought out and poorly drafted and, in my opinion, tragically represents a lost opportunity, I don't fear that it will be used to curtail medical rights, nor will it result in commercial cannabis stores and high taxes on everything cannabis. So I plan to hold my nose, close my eyes, and vote "yes" for the message effect. Then I'll keep my fingers crossed that if it is declared unconstitutional as I anticipate, there will be a groundswell to come back with a better and true legalization initiative in two years."

Bill Panzer