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The 2010
California Initiative |
Critiques and Responses
So far, organized opposition to the initiative has come principally from police and prosecutors. Although they commonly trade in nostrums such as that it law will "send the wrong message to children," this section will focus on more serious objections that have been expressed by their representatives.
Significantly, none of the law enforcement critics appear to be attacking the idea of legalization; rather, they oppose this particular measure, claiming that it is badly written and may produce confusion, implying that legalization should be accomplished in a better fashion (though none have offered plans of their own).
Cooley
Perhaps the most prominent critic to date is the District Attorney of Los Angeles County, Steve Cooley, who in an April 13, 2010, letter to California Attorney General Jerry Brown, disparaged the wording of the Act, and certain policy choices reflected therein, to wit:
Cooley Claim |
Response |
| "While local governments may impose taxes on cannabis-related activities, the state government would be precluded from imposing any cannabis specific tax or fee (Section 11302)" |
Section 3(113029(b) expressly contemplates the possibility of state taxation: "Any licensed premises shall be responsible for paying all federal, state and local taxes...," but the law is simply written to allow the business to pay the tax without exposing itself to criminal liability under federal law, as the Board of Equalization currently handles sales tax receipts from medical marijuana dispensaries. |
| "The Act does not Control Cannabis." |
His objection is as to nomenclature, not substance. The gist of it is that because of many technical deficiencies in the Act, effective "control' is not likely to occur. As with the Controlled Substances Act, use of the word "control" is aspirational, and not a part of the substantive law. |
| "[T]he Act's deference to local authorities regarding marijuana regulation is nothing like how alcohol is controlled in California. Furthermore, forcing local governements to promulgate comprehensive cannabis-related regulations will not only unduly burden local governments, but is also certain to lead to a chaotic and confusing result." |
Yes, the Act does not contain comprehensive rules. leaving it up to communities to adopt their own. There will no doubt be experimentation with a variety of schemes, just as with county-by-county alcohol control laws after the repeal of Prohibition in 1933. Local governments will learn from each other's mistakes and successess. After some initial uncertainty, things will settle down. They always do. |
| "The Act Deregulates and Eliminates Government Control of Cannabis." |
Well, yes, if you mean "control" by the criminal justice apparatus. That is the point. |
| The Act "do[es] not limit or regulate cannabis cultivation but instead create[s] an absolute right to cultivate marijuana on private property..." "Further complicating matters, the proposal is ambiguous as to whether a property owner maintains the right to prohibit cultivation on his own land." |
Yes, the Act exempts from criminal sanction the act of "backyard" cultivation. Ambiguity arises only if you confuse the concepts of criminal liability and civil liability. Nothing in the Act curbs the rights of landlords. |
"The Act Does Not Permit the State of California to Tax Marijuana"
"The Act explicitly prohibits a state marijuana tax[.]" |
The Act contains NO prohibition of state taxation. Rather, as noted above, it expressly contemplates the possibility of state taxation. A liberated cannabis industry will provide many revenue opportunites, including taxes on incomes, sales and tourism. |
| "The Act Will Cost the State Billions in Federal Funding While Limited Employer's Rights to Maintain a Safe and Drug-Free Workplace" |
The Act in NO way interferes with the right of an employer to maintain a drug-free workplace, or to comply with the requirements of the Federal Drug-Free Workplace Act of 1988. That Act requires employers to publish certain information and requiring employees to notify employers "of any criminal drug statute conviction for a violation occurring in the workplace." It is likely that fewer convictions will occur if the Act becomes law, thus better protecting employers from the presence of convicted employees, which is the point of the federal law. |
| '[A] California employer will no longer be able to screen job applicants for marijuana use." |
No, employees can be screened, but they can't be fired for the mere presence of unauthorized metabolites in their urine. |
| "[T]he U.S. Department of Transportation requires persons who operate airplanes, locomotives, trucks and buses to be removed from their respective jobs if they test positive for any narcotic." |
Federal law will not be affected by the Act, nor will the Act in any way impede federal authorities from enforcing any federal law. (Only a prosecutor would call marijuana a "narcotic.") |
Lovelle, too, sees a deficiencie[Balance of this page under construction]iative. (Like Mr. Cooley, he does not object to the idea of legalization.)
Mr. Lovell's critique is far different in character and content from Mr. Cooley's. Instead of broad strokes, Mr. Lovell appears to have gone through the text of the initiative painstakingly, attempting to see how any section or cluster of words can be misconstrued unreasonably. For example, Section 3(11300)(a) provides that cultivation may lawfully occur
| in an area of not more than twenty-five square feet per private residence or, in the absense of any residence, the parcel. |
Mr. Lovell writes: "Thus, the owner of a vacant lot in a residential area may dedicate that entire parcel to marijuana cultivation."
Huh?
He complains that"there is no authorization for state marijuana taxes," but does not acknowledge that neither is there any prohibition of state taxes.
Here is another. Section 3(11300) (a)(ii) states:
| Provided that, nothing in this section shall permit unlawful or unlicensed cultivation of cannabis on any public lands. |
Mr. Lovell calls this prohibition "illusory," because "a local governent can authorize cultivation in public parks within their jurisdiction."
Section 3(30100(a)9iii) provides that it shall be legal to
| possess objects, items, tools, equipment, products and materials associated with activities permitted under this subsection. |
Mr. Lovell reacts: "Does this mean that an individual may construct a warehouse on their vacant land; cultivate, harvest and process marijuana? It would appear to be the case."
No, Mr. Lovell, that's why we have zoning. This means that police won't be able to take everything a family owns and call it "evidence."
He takes further exception to the "personal use" section. Section 3(113000)(a) provides that
notwithstanding any other provision of law, it shall not be a public offense under California law for any person 21 years of age or older to... personally possess, process, share, or transport not more than one ounce of cannabis, solely for that individual's personal consumption and not for sale. |
Mr. Lovell's take on it;
| Please note that Section 11300(a) in its entirety confers rights and privileges that are 'notwithstanding any other provision of law.' This means that, irrespective of the 'regulation' that may or may nto be enacteed by a local jurisdiction, there is an unrestricted right to possess, cultivate, process, virtually incalulable amount of marijuana anywhere in the state. |
And so it goes. This is not a critique; it is an assault with blunt instruments. If there are true ambiguities in the statute, that is hardly a fatal flaw, as it is a basic rule of statutory construction that in such events, a court will construe a statute to accomplish its purpose. And as Mr. Lovell points out, the Act very clearly states its purposes.
Text of Act |
Mr. Lovell says: |
My take: |
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"The legalizers have yet to explain what the social betterment is by legalizing another mind-altering substance," said John Lovell, a lobbyist for law enforcement agencies, including the California Peace Officers' Association, that are opposed to legalization. "They're smoking something if they think soccer moms are going to go their way."
http://articles.sfgate.com/2010-01-05/news/17466621_1_marijuana-sales-soccer-moms-legalize |
The "social betterment" is called liberty. As for soccer moms, don't be |
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