The National Law Review’s featured blogger Donna Bader discusses the legal implications of legalizing marijuana in California. 
As the November election approaches in California, the proponents and opponents of Proposition 19 are preparing for battle. Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010, is an initiative to legalize certain marijuana-related activities. It purports to do the following:
- Allow people 21 years of age or older to possess, cultivate, or transport marijuana for personal use;
- Permit local governments to regulate and tax commercial production and sale of marijuana;
- Prohibit people from possessing marijuana on school grounds, using it in public, and smoking it while minors are present or providing it to anyone under 21; and
- Maintain current prohibitions against driving a vehicle while impaired.
(See http://www.taxcannabis.org/index.php/pages/initiative/ for the text of Proposition 19.)
The findings in the initiative make fascinating reading because the initiative acknowledges that laws criminalizing cannabis have failed, millions are using it, and the percentage of citizens using it is double that of the percentage of citizens using in the Netherlands, which allows the sale of cannabis. In essence, criminalization has had no effect on usage. The findings also note that cannabis has fewer side effects than alcohol or cigarettes, California wastes millions in trying to enforce laws against it, and its illegality has spawned an illegal drug trade that makes over a $15 billion in California a year. It does not ignore the fact that that money in the form of taxes and permits could then go to the cities, counties, and states.
While the initiative addressing the implementation of a “legal regulatory framework,” certain activities are left to the cities. For instance, if a city decides not to tax and regulate the sale of cannabis, then buying and selling – not possessing and consuming – would remain illegal. If the city decides it is willing to tax and regulate the buying and selling of cannabis, then it must implement “a strictly controlled legal system” to oversee and regulate cultivation, distribution and sales, including relating how much cannabis can be bought and sold. It would also allow the California Legislature to adopt a “statewide regulatory system for a commercial cannabis industry.” The initiative proposes a number of activities that a local government may regulate. Finally, it permits amendment either by a subsequent initiative or statute “but only to further the purposes of the Act.”
The supporters of Proposition 19 seem to fall into two general camps: The first camp includes those who would like to use cannabis and see it be available to others, possibly because they believe it to be harmless, no different than alcohol (with less damage to the body), and that the criminalizing it has not worked. The second camp is composed of individuals who do not use cannabis and are generally not in favor of its use, but they too recognize the war on drugs and failed, and given the critical financial condition of our State, would welcome a thriving business that would put money into government coffers.
Two major questions arise from passage of Proposition 19. The first question is what will the federal government do? Possession of marijuana is still illegal under the federal Controlled Substances Act. The Obama Administration has seemingly turned a blind eye to prosecuting the little guy, but passage of Proposition 19 will dramatically increase the commercial and business opportunities to produce and sell marijuana. The bigger the business, the more attention it will receive from the DEA. Because the proposition covers commercial production and sale, the federal government may intervene and attempt to enjoin enactment of the measure.
The second question is how will passage of Proposition 19 affect other areas of law. Here are just a few areas that could be affected:
- Counties and cities will have to scramble to make decisions on where they stand and how they want to regulate cannabis under the law.
- The impact on interstate commerce because one can easily imagine what will happen if legal marijuana is purchased here and then brought over the border into a state that forbids it.
- Dealing with taxing authorities.
- Attorney ethical concerns in advising a client about activities that are still considered illegal under federal law.
- Land use issues and restrictions.
- Anti-discrimination laws.
- Employment laws, particularly in the areas of drug-testing and wrongful termination.
- Landlord-issues, including a revisions of leases and rental agreements to cover marijuana use, both personally and commercially.
- Criminal convictions and the effect of Proposition 19 on pending criminal cases.
- Insurance law, particularly homeowners and health insurance.
- Impact on federal funding in specific areas touched by Proposition 19.
If the criminalization of marijuana has provided full-time for certain lawyers, then certainly the passage of Proposition 19 will present new and different opportunities for other lawyers as everyone tries to resolve the issues raised by its implementation.
© 2010 Donna Bader
Donna Bader is a Certified Specialist in Appellate Law in Laguna Beach, California. For over thirty years, she has specialized in handling civil writs and appeals, and has written more than 350 appellate briefs. Donna is the former editor in chief of several legal publications, including Plaintiff, The Advocate, The Forum, and The Gavel. She is the author of Rutter’s Civil Litigation Guide, California Summary Judgment and Related Termination Motions. Donna is also a frequent lecturer and contributing writer for various legal organizations. Donna’s blog, AnAppealtoReason.com, is written for California trial attorneys and advises them on how they can protect their appeals at the trial court level. 949-494-7455 / www.AnAppealtoReason.com
