Tag: Constitutional Law

Under The Radar–The Supreme Court, Commercial Speech and the First Amendment

Recently posted in the National Law Review an article by attorney  Charles M. English of Ober | Kaler regarding U.S. Supreme Court’s  view of the First Amendment as applied especially to political speech:

Ober

Over the past several years, a great deal has been written about the .  In both the 2010 and 2011 terms the Court in dramatic and well-publicized cases struck down federal (Citizens United) and state (Arizona Free Enterprise Club’s Freedom PAC) campaign finance restrictions as applied to corporate political donations and laws supporting public financing of candidates who forgo private donations.  These are of course significant, far-reaching decisions with major impacts on political discourse in the United States.  But even more may be going on in First Amendment jurisprudence when one looks beyond the headline-grabbing cases to less well publicized commercial speech cases.

More often than not the Court moves not dramatically, but in incremental steps as both the law and the Justices evolve and the Court personnel change.   Such an incremental step appears to have been taken by the Court this year with respect to commercial speech regulation – speech intended not for political discourse, but by commercial entities seeking to buy, sell, advertise, market or provide information to each other and consumers.

On June 23, 2011, the Court, in a 6-3 majority, issued Sorrell v. IMS Health, Inc.,No. 10-779, striking down on First Amendment grounds Vermont’s law that prohibited the sale and use of physician prescription data for commercial purposes especially by pharmaceutical companies wishing to use that data to advertise and otherwise reach out to physicians in order to market their drugs.  Having monitored the case closely and attended the Court’s oral argument, I don’t think that the result itself was much of a surprise.  The Court concluded that the regulated activity interfered with the exchange of ideas and was thus speech and then concluded that the protected speech could not be regulated by Vermont in the fashion proposed.

What to many observers was less predictable was the breadth of the decision and the language employed in the majority opinion written by Justice Anthony Kennedy and joined both by the four justices normally considered “conservative”, but also joined by Justice Sonia Sotomayor.  The majority appears to have applied a stricter standard to the “content and speaker-based” commercial speech restrictions than it has applied in the past.  So the question arises: Is the Court moving, however incrementally, towards a change in how it treats commercial speech under the First Amendment – one that would increase the level of scrutiny applied to restraints on such speech?

While Sorrell received far less coverage than many of other cases decided by the Court in the 2011 Term, commercial speech proponents have been quick to embrace the decision and to assert broader commercial speech rights.  After the Food and Drug Administration adopted new cigarette warning label requirements in the summer of 2011, R.J. Reynolds, together with other tobacco companies and supported by national advertising organizations, were quick to seek court intervention against the new warning label requirements. They relied in no small part on the expansive language found in Sorrell.  That suit, filed in mid-August, is set for a decision on motions for a preliminary injunction and summary judgment after a hearing before Judge Richard Leon in the U.S. District Court for the District of Columbia on September 21, 2011.

To understand where the Court may be heading, it is important first to know where we have been.  While the First Amendment, which is also applicable to the States, might appear to the casual reader to be absolute  – “Congress shall make no law . . . abridging the freedom of speech. . .”, it in fact has not been so regarded historically by the Court.  In 1942, the Court declared that commercial speech was not protected by the First Amendment at all.  The Court reversed course in 1976, declaring that some form of intermediate protection did exist for commercial speech, and established in 1980 a multi-part test (Central Hudson) for evaluating the constitutionality of commercial speech restrictions:  In order to regulated non-misleading commercial speech regarding otherwise legal activity, the government must establish that there is a substantial state interest, that the regulation directly advances that state interest, and that the regulation is narrowly tailored to advance that substantial interest.

It doesn’t take a lawyer to conclude that this test is confusing, and not surprisingly, most observers from a wide array of the political spectrum have concluded that the results of the cases decided under Central Hudson are unpredictable and that the test is simply unworkable.  Importantly, Justice Clarence Thomas has repeatedly criticized the Court’s commercial speech jurisprudence directly, with some indirect support from others from the Court’s so-called conservative wing.

The majority in Sorrell certainly did not overrule (at least not expressly or entirely)Central Hudson.  However, the majority opinion , however subtly, appears to provide a measurable shift in the First Amendment analysis by the Court by carving out in commercial speech cases types of restrictions to which the majority appears to provide some form of scrutiny greater than the protections found in theCentral Hudson test.   Indeed and perhaps most tellingly the minority opinion written by Justice Stephen Breyer accuses the majority of having created a new test, stricter than Central Hudson, for content-based or speaker-based speech that undermines the differentiation of commercial speech from what is often called core First Amendment speech.  If so, the court may have indirectly moved towards Justice Thomas’ assertion that commercial speech should not be treated differently from core speech.

In the short run, we should expect the decision in Sorrell to actually add to the confusion that surrounds Central Hudson.  Will lower courts such as the one now presented with the cigarette warning dispute conclude that there is a new, higher standard?  If so, in which cases will this new standard apply, and how will those cases be decided?  This is not an academic or legalistic point.  Both business and government thrive on certainty in results, and legal uncertainty is simply very expensive for everyone:  When states lose these First Amendment cases, they normally must pay the attorneys’ fees to the prevailing party; meanwhile, businesses subject to regulation of uncertain legality incur costs in complying and challenging such regulation.  Nobody benefits from this kind of uncertainty – well, except for the lawyers of course.

Of course, we may not have long to wait after all.  The case of the FDA regulation of cigarette packaging,  or possible other cases involving other governmental regulation of health-care claims or of health insurance, or new food safety regulation – any one of these could give rise to litigation that provides new guidance, clarity or even another incremental step.  However, when one goes back to the text of the First Amendment and its absolute prohibition on abridging the freedom of speech, examines the Court’s recent dramatic political speech cases in the past two terms, considers the muscular conservative majority, and carefully reads between the lines of Sorrell (decided with six votes in the majority), one must conclude that we are in for interesting times, and that advocates of commercial speech restrictions, including anti-smoking advocates, may now face a greater uphill battle in defending and maintaining what have come to be accepted restrictions in marketing and advertising in the United States.

© 2011 Ober | Kaler

 

 

This (Retractable) Needle Is Going to Sting a Bit: Next Chapter in the Adventures of Post-Phillips Claim Construction

Posted on July 31, 2011 in the National Law Review an article by David M. Beckwith and Paul Devinsky of McDermott Will & Emery regarding how the U.S. Court of Appeals for the Federal Circuit addressed the claim construction tension between broadly drafted claims and the written description contained in the patent specification:

The U.S. Court of Appeals for the Federal Circuit addressed the claim construction tension between broadly drafted claims, and the written description contained in the patent specification, revealing a deep split among the panel members. Retractable Technologies, Inc. v. Becton, Dickinson Co., Case No. 07-CV-0250 (Fed. Cir,. July 8, 2011) (Lourie, J.) (Plager, J., concurring) (Rader, J. dissenting-in-part).

Retractable Technologies (RT) sued Becton Dickenson (BD) for infringing three patents related to syringes with retractable needle technology. Following an adverse jury verdict, BD appealed on multiple grounds, including a challenge to the claim construction of the term “body,” which the district court had determined could include a multi-part structure.

The Federal Circuit affirmed in part and reversed in part, specifically rejecting the district court’s broad claim construction the term “body.”  BD argued that the district court erred in ruling the syringe “body” is not limited to a one-piece structure, noting the specifications describes “the invention” as including a one-piece body.  In addition, the background section of the patent criticized prior art syringes that contain a two-piece body.  Finally, BD argued that claim differentiation does not apply in light of the written description’s limiting statements concerning the nature of the invention and the structure of the syringe body.

RT responded that the ordinary meaning of the term “body” should apply and is not limited to a one-piece body.  RT also argued application of the claim differentiation canon based on a dependent claim that included the limitation of a one-piece body.

Judge Lourie wrote for the majority of the panel, agreeing with BD that the claim term “body” is limited to a one-piece structure as described in the specifications. The majority noted that the specification indicates what was invented, holding that the claim language should not be interpreted to extend the invention beyond that set forth in the written description.  The majority also rejected RT’s claim differentiation argument as “weak” in the face of the language of the specification.  The majority noted that no dependent claim recited a non-one piece structure and concluded that the language of the specification that criticized two-piece structures was of greater significance than the dependent claim to a one-piece body.

Judge Plager, concurring, warned courts to turn a deaf ear to the siren song of giving claims wide scope.  In Judge Plager’s opinion, the written description requirement imposes an obligation to make full disclosure of what is actually invented and to claim that and nothing more.  As Judge Plager noted, “I have written elsewhere about the curse of indefinite and ambiguous claims, divorced from the written description, that we are regularly are asked to construe, and the need for more stringent rules to control the curse.”

In dissent, Judge Rader focused on the ordinary meaning of the term “body” and explained that since there was no special meaning provided by the patent specification to supplant the ordinary meaning of the term “body,” it was error to limit the construction to only a one-piece structure.  Rader wrote,  “In this case, neither party contends that ‘body’ has a special, technical meaning in the field of art, and thus claim construction requires ‘little more than the application of the widely accepted meaning of commonly used words.’”

Practice Note:  This decision reflects a fundamental division within the Federal Circuit on the importance of the written description as a limitation on claim scope, as compared to the view that the claim language itself should be of paramount importance in construction. Until there is either some post-Phillips en bancclarification or Supreme Court consideration of the issue, the outcome of contested constructions in such a circumstance may demand on the panel hearing the appeal.

© 2011 McDermott Will & Emery

U.S. Supreme Court Stresses Importance of Commonality in Decertifying Massive Sex Discrimination Class of 1.5 Million Wal-Mart Employees

 Barnes & Thornburg LLP‘s Labor and Employment Law Department recently posted in the National Law Review an article about the U.S. Supreme Court’s reversing the largest employment class certification in history

In Wal-Mart, Inc. v. Dukes, reversing the largest employment class certification in history, the U.S. Supreme Court appears to have limited the circumstances in which federal courts can certify class actions – and not just in employment cases. The Court held that the lower federal courts had erred by certifying a class that included 1.5 million female employees from virtually every part of the country. The plaintiffs sought injunctive and declaratory relief, punitive damages, and backpay as a result of alleged discrimination by Wal-Mart against female employees in violation of Title VII of the Civil Rights Act of 1964. 

The Supreme Court held that class certification was improper because the class failed to meet the “commonality” requirement of Federal Rule 23(a)(3), which provides that a class can be certified “only if…there are questions of law or fact common to the class…” The Court noted that the mere allegation of “common questions” is insufficient under Rule 23. “Th[e] common contention… must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the [individual class members’] claims in one stroke.” 

The Court held that the Wal-Mart class did not meet the standard for commonality, because the evidence showed that Wal-Mart gave discretion to its supervisors in making employment decisions. The named plaintiffs “have not identified a common mode of exercising discretion that pervades the entire company… In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” The Court concluded that, “Because [the named plaintiffs] provide no convincing proof of a company-wide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”

The lack of commonality found in Wal-Mart can arise in class actions of many kinds. Under Wal-Mart, a question is “common” under Rule 23(a)(3) only if it can be decided on a class-wide basis. In the past, many named plaintiffs, and some lower courts, have overlooked this essential point. And, as in Wal-Mart, in many cases a claim of commonality will fail precisely because there is no way to rule on the question without addressing the individual facts relating to each purported class member. Wal-Mart makes clear that such a lack of commonality is sufficient to defeat class certification.

In addition to meeting all of the requirements of Rule 23(a), a class must comply with one of the three subparts in Rule 23(b). The trial court in Wal-Mart had certified the class under Rule 23(b)(2), which allows a class where the defendant’s alleged conduct “appl[ied] generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole…”   Another issue before the Supreme Court was whether such certification was proper where the class sought recovery of substantial backpay based on Wal-Mart’s alleged discrimination.

The Court ruled that the purported class could not be certified under Rule 23(b)(2),  holding that “claims for individualized relief (like the backpay at issue here) do not satisfy the Rule.” The Court said that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.”

Under the analysis in Wal-Mart , in the vast majority of class actions seeking a monetary recovery, the class can be certified (if at all) only under Rule 23(b)(3). Class certification under that provision is often more difficult, because a class plaintiff must prove that common questions “predominate” over individual questions and that a class action is “superior” to individual actions.  In addition, under Rule 23(c)(2)(A), individual notice must be given to all members of a Rule 23(b)(3) class at plaintiff’s expense, while such notice is optional, within the trial court’s discretion, if the class is certified under Rule 23(b)(2).

Wal-Mart is an important case in the area of employment law; but the Supreme Court’s holdings on the requirements of Rule 23 are likely to be helpful in defending class actions of all kinds

© 2011 BARNES & THORNBURG LLP

Georgia Voters Approve Dramatic Changes to Employment Restrictive Covenant Laws

This week’s featured blogger at the National Law Review is Jon M. Gumbel of Ogletree Deakins.  Jon writes about how this month’s elections in Georgia approved a measure which would amend the Georgia constitution to dramatically alter the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. 

The long-awaited and often debated results are in! On Tuesday, November 2, 2010, Georgia voters decided (quite convincingly) to amend the Georgia Constitution, which allowed for the previously passed House Bill 173 to become law (now O.C.G.A. §13-8-50, et seq.). This new statute dramatically alters the law as it pertains to employee non-compete, customer non-solicitation, confidential information and similar contractual provisions between Georgia employers and their employees. The new law became effective on November 3, 2010 and as such, is deserving of prompt attention by Georgia employers.

Until November 2, Georgia’s restrictive covenant laws were governed by published court decisions issued by a wide variety of Georgia judges and based on an even wider variety of specific factual situations, creating a somewhat muddled, very complex and highly unpredictable area of the law. Furthermore, as this case law developed over the past 60 plus years, Georgia courts applied an increased level of scrutiny to employee restrictive covenants, making Georgia one of the most difficult states in which to enforce such covenants. For example, Georgia courts previously required employers to undertake the extremely challenging task of tailoring restrictive covenants executed at the onset of the employment relationship to the employee’s post-employment competition restrictions. In addition, Georgia courts would automatically invalidate a customer non-solicitation provision upon the finding of one technical problem within a noncompete covenant and vice versa. Finally, Georgia courts would not, under any circumstances, modify an otherwise unenforceable covenant so as make it reasonable in the court’s eyes and therefore, enforceable (the “blue penciling” process).

The new statute specifically states Georgia’s new public policy favoring enforcement of these agreements and provides specific guidelines for drafting enforceable agreements. For example, the new statute expressly authorizes a more general description of prohibited, post-employment activities, thus mitigating the requirement that such covenants be narrowly tailored at the onset. The new statute eliminates the prior rules invalidating one covenant based on the unacceptable language of another separate covenant within the same contract. Perhaps, most significant is the new statute’s specific approval of blue penciling, the practice by which Georgia courts are allowed to modify and enforce an otherwise unenforceable covenant.

It is important to note that this new statute only applies to restrictive covenants executed on or after the date the statute was passed – November 2, 2010. The previous, more rigorous legal standards will still apply to agreements entered into before that date. Re-drafting restrictive covenants in line with Georgia’s new statute may be the best option for many Georgia employers. However, Georgia employers should consult with counsel to determine whether they can benefit from this new law. This is especially true when it comes to covenants contained in more complex management and executive agreements that are tied to more generous severance or other compensation plans or those associated with the sale of a business.

Update! For more recently posted information about this topic, please see:  Important Notification Regarding the Effective Date of The New Georgia Restrictive Covenant Statute

© 2010, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

About the Author:

Jon M. Gumbel has concentrated his practice in the field of management labor and employment law since 1987.  He has represented employers with respect to litigation and other employment law disputes involving race, gender, age, religious, and disability discrimination claims under Title VII, the ADEA, the ADA, the FMLA, and comparable state laws.  Jon has also represented employers with respect to their employment litigation matters involving pregnancy discrimination, breach of compensation agreements, breach of non-compete agreements, breach of fiduciary duty, joint employment, wage and hour matters, OSHA citations, and wrongful discharge laws.  Finally, Jon has represented numerous employers with respect to ERISA claims/litigation including those involving health, disability and pension claims.  404-881-1300 /www.ogletreedeakins.com

 

Picking the Perfect Jury:What Should Be Done About the Problem of Race-Based Exemptions ABA Teleconference & Live Audio Webcast – October 21st

The National Law Review would like to make you aware of an upcoming ABA Teleconference and Live Webcast which has been approved for Elimination of Bias Credits in applicable jurisdications as well as CLE credit — Picking the Perfect Jury:What Should Be Done About the Problem of Race-Based Exemptions: 

Program Description

As recently reported in the New York Times, “Today, the practice of excluding blacks and other minorities from Southern juries remains widespread” and, according to the Equal Justice Initiative and defense lawyers, is “largely unchecked.” There is a continuing indifference to prosecutors’ race-based exclusions of prospective jurors.  Prosecutors have learned how to claim that their exclusions are race-neutral, even where they do not exclude white jurors whose answers during jury selection are indistinguishable from those of jurors of color whom the same prosecutors do exclude.

At this program, the renowned Executive Director of the Equal Justice Initiative, Bryan Stevenson, will discuss his organization’s June 2010 report on this subject (a report which was the basis for the Times story and other media reports) and will join with other expert panelists and discussing the report’s implications and what those who attend this program can do to rectify this situation.  There will be special focus on Tennessee, Alabama, Arkansas, and Mississippi.

CLE Credit

1.0 hours of CLE credit in 60-minute states/1.2 hours of CLE credit in 50-minute states have been requested in states accrediting ABA teleconferences and live audio webcasts.*

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.0 total NY CLE credits.

Elimination of bias credit has been requested in states with elimination of bias requirements.

The following states accept ABA teleconferences for CLE credit:
AL, AK, AR, AZ, CA, CO, FL, GA, IA, ID, IL, KY, LA, ME, MN, MO, MS, MT, NC, ND, NH, NM, NV, NY, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, WY.

*States currently not accrediting ABA teleconferences: DE, IN, PA, KS, OH

Teleconference / Live Audio Cast Hours: 

4:30 PM-5:30 PM Eastern

3:30 PM-4:30 PM Central

2:30 PM-3:30 PM Mountain

1:30 PM-2:30 PM Pacific

To Register or for More Information: 

Register by Phone:  800.285.2221 / Monday – Friday 
8:30 AM – 6:00 PM Eastern Event Code: cet0rbe   http://bit.ly/dkP9EQ

Public Defenders as Effective as Private Attorneys

This week’s featured blogger at the National Law Review is Tom Jacobs of Miller-McCune – who discusses a recent study done comparing the relative effectiveness of public defenders and private attorneys in the Cook County criminal court system. The research team led by Richard Hartley of the University of Texas at San Antonio came up with some interesting and somewhat startling results.  Read on:

Perhaps it’s time for someone to come to the defense of public defenders. A newly published look at Chicago-area courts finds that, when you consider the actual outcomes of judicial hearings, these underpaid and underappreciated attorneys do just as well as their private-sector counterparts.

“This study suggests that there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders,” a research team led by Richard Hartley of the University of Texas at San Antonio writes in the Journal of Criminal Justice. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

The researchers examined a random sample of 2,850 offenders convicted of felonies in Cook County Circuit Court, “a large Midwestern jurisdiction which is similar to other large, urban jurisdictions in the country.” They compared cases where the defendant was represented by a private attorney or public defender, focusing on four stages of the judicial process:

  • The decision to grant bail. The researchers looked at whether bail was set rather than whether it was made, since the latter is more a function of ability to pay rather than quality of legal representation.
  • Plea-bargaining decisions. This served as a measure of whether an attorney was successful in getting the initial charge reduced.
  • Whether the defendant, once convicted, served jail time.
  • The length of sentence imposed on those convicts who were incarcerated.

“The overall results of this study generally support the idea that there is no difference between private attorneys and public defenders regarding case outcomes,” the researchers conclude. “The type of attorney representing the defendant was not influential on any of the four decision-making points examined here.”

Two important caveats. The researchers did not look at convictions vs. acquittals. And they found that retaining a private attorney is apparently beneficial “for certain offenders and at certain stages” of the process. Specifically, they noted some interestingly varied outcomes when looking at a defendant’s race.

“White defendants are the only defendants who benefit from having a private attorney at the release decision,” they write. Specifically, they found whites with private attorneys are 2.7 times more likely than whites with public defenders to have bail granted.

For people of color, private attorneys may not help in getting bail, but they do facilitate plea bargains. “Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender,” the researchers write.

Why are public defenders so effective at representing their clients? One theory, according to Hartley, involves the “courtroom workgroup” model of justice, where the public defender, prosecutor and judge work together to dispose of cases.  He notes that when the system functions in this way, “public defenders are in better positions than private attorneys to negotiate favorable plea bargains and to mitigate punishment.”

These findings are not likely to put any law firms out of business. But given the negative media coverage of public defenders offices, they do offer some reassurance that the system is reasonably fair, even for those who can’t afford an attorney.

“This study provides evidence that contradicts the idea that you get what you pay for, at least in Cook County,” Hartley and his colleagues conclude. In Chicago courtrooms, “Public defenders are as effective as private attorneys.”

Miller-McCune © 2010 

About the Author:

Tom Jacobs is a veteran journalist with more than 20 years experience at daily newspapers. He has served as a staff writer for The Los Angeles Daily News and the Santa Barbara News-Press. His work has also appeared in The Los Angeles Times, Chicago Tribune and Ventura County Star.

TheEditor@miller-mccune.com / www.miller-mccune.com / 805-899-8620

What are the Possible Legal Implications of the Passage of California’s Proposition 19?

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