What a Lawyer Says about Prop. 19

I’ve been planning on doing a thorough post on Prop. 19 but then I received the following letter from Lanny Swerdlow which included a piece from David Nick a well-known marijuana lawyer. He defends the initiative much better than I would. First, here is Swerdlow’s introduction to Nick to give you his credentials and then following is what Nick has to say.  It is long I know.  But if you are having any doubts about 19, here is someone knowledgeable discussing it.

For 18 years, David Nick has successfully litigated a cornucopia of issues regarding cannabis and the applicable laws in both trial and appellate courts. He has not confined his practice to marijuana law, but also litigates cases involving constitutional rights and criminal procedure.
David Nick has never lost a jury trial in a state marijuana case including many precedent setting trials involving some of the most revered figures in the medical marijuana movement such as Brownie Mary, Dennis Peron (Nick has been Peron’s sole attorney since 1994) and Steve Kubby….
One of Nick’s early defenses of Peron’s medical marijuana activism resulted in the first appellate court decision affirming that marijuana can be sold. Kubby’s case was the first large quantity (200 plants) case to be won on the argument that Kubby’s serious ailments necessitated his use of cannabis to keep him alive.
Nick does not confine his practice to marijuana law, but is involved in significant federal criminal litigation.
His litigation has established the right not to be searched by sniffing dogs without probable cause. This is in contract to car searches where police can search you car for no reason at all…
His litigation has lead to policies requiring police to not draw weapons in a marijuana search unless they have information that the person being apprehended is dangerous.
As far as I am concerned, these experiences qualify him to provide an opinion about Prop. 19 superior to those I have read from the “sky-is-falling” alarmists
Here is Mr. Nick’s analysis of the effects of Prop. 19 on medical marijuana patients. …
PROP. 19 IS THE BEST THING TO HAPPEN TO MMJ PATIENTS SINCE PROP. 215
Anyone who claims that Proposition 19 will restrict or eliminate rights under the Compassionate Use Act (CUA) or the Medical Marijuana Program (MMP) is simply wrong. If anything, Proposition 19 will permit individuals to grow and possess much more than ever before with patients, coops and collectives still receiving the same protections they are entitled to under the CUA and MMP.
Here is why.
The legal arguments claiming the “sky will fall” if Prop. 19 passes are based on the fallacious conclusion that the Initiative invalidates the CUA and MMP. This baseless fear stems from a flawed legal analysis which focuses on just about every portion of Prop. 19 EXCEPT the relevant portions. This flawed legal analysis is driven by an incorrect understanding of the rules of statutory construction.
Although extrinsic materials (such as legislative committee memos or voter pamphlet arguments) may not be resorted to when the legislative language is clear, courts may never ignore the purpose of the legislation. Every interpretation a court gives a statute must be consistent with the purpose of the legislation. This is why statutes have long “preambles” which explicitly state the purposes of the legislation.
This rule is so controlling that a court is required to ignore the literal language of a legislative statute if it conflicts with the purpose of the legislation. By example I call attention to the appellate court case of Bell v. DMV. In this precedent setting case, the court ruled that a statute must be interpreted to apply to civil proceedings even though the statute they were interpreting stated it applied only to “criminal” proceedings. The court’s interpretation of the statute was consistent with the purposes of the legislation and the limitation to criminal cases in the statute itself was not.
PROP. 19 PROVIDES ADDITIONAL PROTECTIONS TO PATIENTS FROM THE ACTIONS OF LOCAL GOVERNMENT AND LOCAL LAW ENFORCEMENT
Section 2B presents the controlling and relevant purposes for understanding what Prop. 19 can and cannot do. This section EXPRESSLY excludes the reach of Prop. 19 from the CUA and MMP. Sections 2B (7 &  8) specifically state that the purpose of this initiative is to give municipalities total and complete control over the commercial sales of marijuana “EXCEPT as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”
Prop. 19 makes it perfectly clear that the Initiative does NOT give municipalities any control over how medical marijuana patients obtain their medicine or how much they can possess and cultivate as the purpose of the legislation was to exempt the CUA and the MMP from local government reach. Whatever control municipalities have over patients and collectives is limited by the CUA and the MMP, not by Prop. 19.
To further reduce everyone’s understandable anxiety over allowing municipalities to unduly control collectives, I direct everyone’s attention to the last statute of the MMP, 11362.83, which reads. “Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws CONSISTENT with this article.”
Since collectives are expressly allowed, local ordinances banning them are not consistent with the MMP. Health and Safety Code Section 11362.83, which limits municipalities ability to ban coops or overly restrict them, is unaffected by Prop. 19 as it expressly states in Sections 2B (7 & 8) that the laws created by Prop. 19 must be followed “EXCEPT as permitted under Health and Safety Sections 11362.5 and 11362.7 through 11362.9.”
PROP. 19 PROTECTS PATIENTS PERSONAL AND COLLECTIVE CULTIVATIONS
Further protecting patients from local law enforcement actions, Section 11303 states that “no state or local law enforcement agency or official shall attempt to, threaten to, or in fact SEIZE or destroy any cannabis plant, cannabis seeds or cannabis that is LAWFULLY CULTIVATED.” If you are a patient, you may “lawfully cultivate” as much marijuana as medically necessary and Prop. 19 protects that right. If you are cultivating for a collective, you may “lawfully cultivate” as much marijuana as your collective allows you to and Prop. 19 protects that right. Unfortunately, many law enforcement officials refuse to recognize the rights provided under the MMP for collectives to “lawfully cultivate” and sell marijuana. Prop. 19 reinforces those rights and makes it even more difficult for law enforcement to bust a collective or collective grower.
IT WILL KEEP POLICE FROM COOPERATING WITH THE FEDS
As you can see from the above paragraph, the statutory scheme Prop. 19 creates expressly forbids law enforcement from seizing lawfully cultivated cannabis.
Prop. 19 will create an insurmountable barrier for local law enforcement which is still bent on depriving you of your rights through the despicable device of using federal law enforcement officers.
Here’s why.
Federal drug enforcement is nearly 100 percent dependent on the ability to use local law enforcement. They do not have the manpower to operate without it. Prop. 19 in no uncertain terms tells local law enforcement that they cannot even “attempt to” seize cannabis. If Prop. 19 passes, California will actually have a law on the books that expressly forbids local police from cooperating with the feds in the seizure of any “lawfully cultivated” California cannabis.
PROP. 19 DOES NOT LIMIT PATIENTS RIGHTS UNDER THE CUA & MMP
The nail in the coffin for those arguing against Prop. 19 is found in Section 2C (1). This is the only section which discusses which other laws the acts is “intended to limit” and nowhere in this section is the CUA or the MMP listed. If the purpose of Prop. 19 was “to limit” the application and enforcement of the CUA and MMP, those laws would have been listed along with all the other laws that are listed in Section 2C (1). Since the CUA and MMP were not listed, then Prop. 19 does not “limit” the CUA and MMP.
It’s that simple.
PROP. 19 MAKES IT EASIER FOR PATIENTS TO OBTAIN THEIR MEDICINE
Section 2B (6) states that one of the purposes of Prop. 19 is to “Provide easier, safer access for patients who need cannabis for medical purposes.” This section is one of the many reasons Prop. 19 is very good for patients. If Prop. 19 passes, the days of having to go through the hassle of getting a doctor’s recommendation to treat simple medical conditions will be coming to an end in those communities which allow Prop. 19 “stores” to exist. When you need an aspirin you do not have to go to a doctor and then to the health department and then to Walgreens – YOU JUST GO TO WALGREENS (the founder of which, Mr. Walgreen, became rich during prohibition by selling “medical” alcohol to patients who had obtained a prescription for alcohol from their doctor).
In those communities which are stubborn and will not allow Prop 19 “stores,” patients will still have the protections of the CUA and MMP and the statutory right to form coops and collectives. Prop. 19 specifically recognizes that these rights are not invalidated and does nothing to limit the ability of patients to cultivate or form collectives or coops.
PROP. 19 ALLOWS YOU TO HAVE A LOT OF MARIJUANA
As an attorney called upon to defend patients and non-patients in marijuana cases, I cannot tell you how beneficial and how much freedom Section 11300 subdivision A (3) of Prop.19 will be to cannabis users. Read it!
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:
(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.
(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.
Section (i) limits possession to one ounce OUT OF YOUR HOUSE. Section (iii) permits people 21 and over to have within their residence or single parcel ALL the cannabis which one grew in their 25 sq. foot parcel, including what you grew this year, what you grew last year and EVERY SINGLE 25 SQ. FT. HARVEST YOU EVER HAD ON THAT SINGLE PARCEL. This covers as many cycles of indoor and/or outdoor grown cannabis as a person can produce as long as each grow was no more than 25 square feet and done in succession.
Clearly section 11300(a) (i) limits personal possession and consumption to one ounce OUT OF YOUR HOME while section11300(a) (iii) is what you are allowed to have AT YOUR RESIDENCE if that is where your 25 sq. ft. garden is located. That this is the case is established by another rule of statutory construction, i.e. the specific controls the general. Here (iii) is the specific statute with respect to what you can have AT YOUR RESIDENCE ONLY or in the words of subdivision (iii) “on the premises where grown”.
The one ounce limitation only applies when you leave your house, not wherever it is you grow your 25 foot plot. I can picture being able to easily defend a person with 200 pounds who is not even medical.
Under Prop. 19 you can only travel with one ounce, but if you are a patient you can still enjoy the protections of the CUA and MMP and can safely travel with eight ounces, or whatever your doctor permits you to have or the needs of your collective, as allowed by the CUA and the MMP. YOUR SUPPLY PROBLEMS CAUSED BY PARANOID CULTIVATION LAWS AND POLICIES THAT AT TIMES LIMIT YOUR PERSONAL CULTIVATION PROJECTS ARE SOLVED BY PROP. 19.
Prop. 19 creates a marijuana sanctuary IN YOUR HOME ONLY. Prop. 19 allows you to have AT YOUR HOME ONLY ALL OF THE PROCEEDS of every successive 25 sq. foot plot. However, Prop 19 only allows you TO REMOVE IT FROM YOUR HOME one ounce at a time if you are a recreational user.
For patients this is not the case because Prop. 19 exempts them from the one ounce out of home restriction. As stated above, if you are a patient then you can take out of your house up to eight ounces, or whatever your doctor permits you to have or the needs of your collective.
Both medical patients and recreational users should note that Section 11300(a) (i) allows you to “share” up to an ounce which tells me that you can furnish as many one ounces to as many friends as you wish, thus if you have a party with 50 people you could give away 50 ounces.
UNDERSTANDING “NOTWITHSTANDING”
As for the argument that the various “Notwithstanding” clauses invalidate the CUA and MMP, I reiterate, that in section 2C (1) where Prop. 19 expressly states which statues are being altered, the CUA and MMP are not listed. Therefore, when you use the word “notwithstanding,” you cannot be referring to statues that have been expressly excluded.
Claiming there is some doubt as to what “notwithstanding” means or refers to requires at most that we reach back to the purpose of the legislation in order to give it proper meaning. Whatever interpretation you give it, “notwithstanding” cannot be in conflict with Sections 2 B (7 & 8) which exempt patients covered under the CUA and MMP from any actions taken by municipalities to regulate the non-medical use of cannabis.
The word “notwithstanding” is used when reversing prior legislation and has traditionally been interpreted by prior case law to be a word employed for the purpose of allowing conduct that had previously been forbidden by other statutes. If the word “notwithstanding” was not used in Prop. 19, municipalities would be able to claim that there is still a prohibition on their participation in the licensing and regulating of this activity.
For example, a law making skipping in front of a school illegal would be overturned by a law which says “notwithstanding other laws, skipping is legal.” If the word “notwithstanding” was not there, then skipping in front of a school would still be illegal even though skipping itself would be legal at any other location.
The rationale behind this rule emanates or comes from another rule of statutory construction which is that existing laws cannot be repealed by inference and instead must be EXPRESSLY repealed. A court cannot find that a law, such as the CUA or MMP, was changed by “implication.” In other words, it cannot repeal a law by ruling that another law implied that it should.
Although Sections 2B (7 & 8) gives cities control over the non-medical distribution of cannabis, that in no way allows a court to repeal or even change the CUA and MMP by ruling that it was “implicit” in Prop. 19 that they do so. It is contrary to any rational understanding of statutory construction to infer that since Prop. 19 gives cities control over the distribution of non-medical marijuana, that it also gives cities the right to control the medical distribution of cannabis beyond what the CUA and MMP allows.
The word “notwithstanding” is simply a legal necessity to repeal the various statutes that prohibit the conduct that prop. 19 now permits.
So can everyone please VOTE YES ON 19.
Sincerely,
J. David Nick
Attorney-at-Law
RESOURCES: (I’m going to put up other links that talk sensibly about Prop . 19)
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26 comments

  • NICE … vote yes !

  • NICE … vote yes !

  • Only a naive fool would fall for Nick’s shuck and jive spin.

    • But then Suzy, you’ve told me I’m a naive fool so many times that I believe it. What I fail to understand is why the heck you read me then? I can’t possibly have something to offer to someone as sophisticated as you.

      I probably am going to regret saying this but sometimes I just can’t stop myself….

      • you’ve told me I’m a naive fool so many times that I believe it.

        LOL! Aw, I’m sorry, don’t take it so personal. It was nothing but this poor fool dancing by with an opinion. Maybe you’re a tad over hyper-sensitive or something. Not that that’s a bad thing. But I was thinking, you might be someone who knows the European folk tale of the girl who’s shoes won’t stop. It’s a great story. Her shoes start dancing and they/she can’t stop. She dances to death. There’s an important moral to the story, of course, which I won’t go into here, except to say it has to do with one’s “shoes”. Suzy, as a matter of fact, has yes, a very sophisticated, in its own special way, collection of footwear –you should see them! I can stop whenever and wherever I want to, that is, even sometimes in the middle of the

        btw. I didn’t really have to read your guest-post but just skimmed a few paragraphs and capitalized talking points to see where hes coming from.

  • Only a naive fool would fall for Nick’s shuck and jive spin.

    • But then Suzy, you’ve told me I’m a naive fool so many times that I believe it. What I fail to understand is why the heck you read me then? I can’t possibly have something to offer to someone as sophisticated as you.

      I probably am going to regret saying this but sometimes I just can’t stop myself….

      • you’ve told me I’m a naive fool so many times that I believe it.

        LOL! Aw, I’m sorry, don’t take it so personal. It was nothing but this poor fool dancing by with an opinion. Maybe you’re a tad over hyper-sensitive or something. Not that that’s a bad thing. But I was thinking, you might be someone who knows the European folk tale of the girl who’s shoes won’t stop. It’s a great story. Her shoes start dancing and they/she can’t stop. She dances to death. There’s an important moral to the story, of course, which I won’t go into here, except to say it has to do with one’s “shoes”. Suzy, as a matter of fact, has yes, a very sophisticated, in its own special way, collection of footwear –you should see them! I can stop whenever and wherever I want to, that is, even sometimes in the middle of the

        btw. I didn’t really have to read your guest-post but just skimmed a few paragraphs and capitalized talking points to see where hes coming from.

  • Thanks for publishing this, Kym. Unfortunately I suspect that the people who need to read this carefully won’t (Suzy Troll?).

  • Thanks for publishing this, Kym. Unfortunately I suspect that the people who need to read this carefully won’t (Suzy Troll?).

  • Somebody wants to sell somebody a bridge –after the trolls are chased out from underneath.

  • Somebody wants to sell somebody a bridge –after the trolls are chased out from underneath.

  • This told me a lot about the legal ramifications of possessing pot, for medical use or otherwise, – but did not assuage any of the fears expressed by local friends about prices plummeting, corporate takeover of the crop, effects on the economy of this county, etc. What about that?

    • Sarah ,” told me a lot about the legal ramifications of possessing pot, for medical use or otherwise, – but did not assuage any of the fears expressed by local friends about prices plummeting, corporate takeover of the crop, effects on the economy of this county, etc. What about that?”

      I would guess it’s where you buy if the prices are going to plummet, Great product is great product no matter how you cut it. The ppl growing now and supplying you that great product are seasoned growers probably and have a product not found else where….. so many pains so many strains. Corporate take over again, chicken little cried the sky was falling too. Effects on the economy… don’t know where your headed with that one. but, I look at it this way our prisons will be less crowded and your and my taxes paid for inmate upkeep will go to prisoners who truly need to be there. This is not like marijuana isn’t already at the very roots of our economy… so please don’t condemn it if you don’t know it. When was the last fatal accident caused by Alcohol? x seconds ago is when and when was the last fatal accident caused by marijuana? “taken from car-accidents.com There are about 17,000 alcohol related car accident deaths in the United States each year, this means that there is a drunk driving death every 31 minutes. Alcohol was a factor in 39 percent of all fatal accidents and in 7 percent of all crashes in 2004.
      Additionally about 248,000 people are injured in accidents where police reported that alcohol was present, thus one person is injured in a drunk driving accident in the US every 2 minutes.” You just can’t find this kind of stuff on marijuana.
      It too will pass as have past prohibitions.

  • This told me a lot about the legal ramifications of possessing pot, for medical use or otherwise, – but did not assuage any of the fears expressed by local friends about prices plummeting, corporate takeover of the crop, effects on the economy of this county, etc. What about that?

    • Sarah ,” told me a lot about the legal ramifications of possessing pot, for medical use or otherwise, – but did not assuage any of the fears expressed by local friends about prices plummeting, corporate takeover of the crop, effects on the economy of this county, etc. What about that?”

      I would guess it’s where you buy if the prices are going to plummet, Great product is great product no matter how you cut it. The ppl growing now and supplying you that great product are seasoned growers probably and have a product not found else where….. so many pains so many strains. Corporate take over again, chicken little cried the sky was falling too. Effects on the economy… don’t know where your headed with that one. but, I look at it this way our prisons will be less crowded and your and my taxes paid for inmate upkeep will go to prisoners who truly need to be there. This is not like marijuana isn’t already at the very roots of our economy… so please don’t condemn it if you don’t know it. When was the last fatal accident caused by Alcohol? x seconds ago is when and when was the last fatal accident caused by marijuana? “taken from car-accidents.com There are about 17,000 alcohol related car accident deaths in the United States each year, this means that there is a drunk driving death every 31 minutes. Alcohol was a factor in 39 percent of all fatal accidents and in 7 percent of all crashes in 2004.
      Additionally about 248,000 people are injured in accidents where police reported that alcohol was present, thus one person is injured in a drunk driving accident in the US every 2 minutes.” You just can’t find this kind of stuff on marijuana.
      It too will pass as have past prohibitions.

  • Great post…Informative and to the point. Some of us can only sit back and watch a Masteress work…

  • Great post…Informative and to the point. Some of us can only sit back and watch a Masteress work…

  • i hate to be so blunt ..but ,some of you need to wake the fuck up !!!!

  • i hate to be so blunt ..but ,some of you need to wake the fuck up !!!!

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