Tag Archives: Why we must choose one initiative and all get behind it

January 5, 2012 – Digest for s..s@a2c2.us – 9 Messages in 6 Topics

 

    "William G. Panzer" <s..s@a2c2.us> Jan 04 08:30AM -0800  

    Mr. Levine:
     
    RCPA is, by far, the clearest and best written cannabis initiative, from
    a legalistic view, of any that have come down the pike in at least the
    past 30 years. This is because three of its five authors are all
    criminal defense attorneys specializing in cannabis law. The problem
    with many initiatives is that they are written by non-lawyers for
    non-lawyers like yourself. You may read things like the purpose
    language in RMLW and love what it says. However, the judges on the
    appellate bench – the ones who will eventually interpret the law the
    initiative creates – read it in a entirely different manner than the lay
    person such as yourself. They notice things like the fact that RMLW,
    for all the wonderful things it says it's supposed to do in the "Purpose
    section", fails to actually provide new laws that accomplish those
    purposes in the "Provisions section".
     
    An example:
     
    When we were drafting Prop 215, my original language was that the
    recommendation or approval could be in writing or "by testimony".
    Against my advice, "by testimony" was changed to "oral". I was told
    "Dude, it's the same thing. When you are testifying you are talking
    orally, Dude" . If it had been left as "by testimony" a defendant who
    didn't have a recommendation at the time of arrest could have then gone
    to a doctor, been examined, and had the doctor testify at a hearing that
    the doctor approved the use. This would have been the interpretation
    since there can be no "testimony" before the arrest. By changing the
    word "testimony" to "oral" it created wiggle room for the courts to
    interpret the then new law to require the recommendation or approval
    BEFORE the arrest. The court that determined this stated that if the
    drafters had intended to allow after arrest relief, the Prop would have
    stated "recommend or ratify". Of course I believe if we had said
    "ratify", that same court would have said we should have said "approve".
     
    Another example:
     
    Prop 19 intended to allow local communities to opt out of state law and
    authorize production and sales within their communities. Again, it was
    well intended. But no experienced cannabis defense lawyers were allowed
    to vet the draft. As a result, if it had passed, this provision would
    likely have been declared null and void by the courts as the state
    constitution in two different sections provides that local communities
    are not allowed to opt out of general state law.
     
    I certainly appreciate the concept of treating cannabis similarly to
    alcohol, though I think RMLW would have a better chance if distribution
    to children had been treated the same as with alcohol, rather than
    making it the equivalent of a parking ticket. Certainly such a system
    is far preferable to what we have now. The problem, as I see it, is
    that RMLW is so poorly drafted (leaving the most important reforms
    completely out of the "Provisions Section"), that if passed, it will
    most certainly get bogged down in the courts, and may ultimately do
    little for cannabis reform.
     
    To understand "purpose" vs. "provision" language, take a look at People
    v. Spark, 121 Cal.App.4th 259 (2004). In that case, the court noted
    that the "purpose" language of Prop 215 limited it to "seriously ill"
    Californians. However, as the court noted, that restriction did not
    appear in the provisions section. Since the court only initially looks
    to the provisions section, there was no requirement for the "seriously
    ill" limitation. As the court noted in the Spark case, a court will
    only look to the purpose section for guidance if AND ONLY IF there is an
    ambiguity in the provisions section.
     
    As for your response, if you can't figure out that
     
    *Section 11054(d)(13), Section 11054(d)(20), … is hereby repealed.*
     
    means that those sections no longer appear in the schedule list in
    section 11054, thus removing "marijuana" and "tetrahydrocannabinols"
    from the list of controlled substances under state law, perhaps you
    should refrain from commenting altogether as your uninformed opinions,
    issued from Canada, may create an unfortunate impediment to cannabis
    reform here in California..
     
    Bill Panzer
     
    On 1/4/2012 3:11 AM, David Malmo-Levine wrote:

     

    "William G. Panzer" <s..s@a2c2.us> Jan 04 12:22PM -0800  

    Mr. Levine:
     
    The description you identify as Mr. McPike's description of events, at
    least in regards to my participation, is pure fiction. As for the 11359
    charge, no limited immunity defense under the Compassionate Use Act is
    necessary as a defense. 11359 is a "specific intent" crime which
    requires the people to prove, as one of the elements, the the defendant
    specifically intended to unlawfully sell cannabis. Thus a defense that
    it was possessed for medical purposes rather than for selling purposes
    is a standard defense to such a charge, rather than a special defense
    created by Prop. 215. Even if someone has no medical recommendation and
    therefore may not legally possess cannabis, a defense of "I was using it
    illegally for myself and didn't intend to sell it" is a recognized
    defense to the 11359 charge.
     
     
    As for being vetted, I don't believe Keith has actually read it, nor, as
    a non-practicing out-of-state lawyer, is he qualified to give a legal
    opinion on California law. While Judge Gray has apparently ratified it,
    I recently heard from someone who attended a function where Judge Gray
    appeared in Southern California that Judge Gray stated that he had not
    read the actual wording. I would be surprised to hear from Judge Gray
    himself that he had read it and did not see the same problems I have
    described. In fact, Id be surprised to hear that from any attorney who
    regularly practices in this area, or regularly practices election law,
    other than Mr. McPike.
     
     
    As to your interpretation of RMLW, I submit the following:
     
    RMLW states:
    > Section 1. Findings, Declarations, Purpose, Directives, and Orders
    In that section it lists a bunch of stuff it would like to do, or claims
    that the act does. However, the initiative then goes on to read:
     
    > This provision shall be enforced hereafter by penalties to be set
    > forth by the Legislature.
     
    > (i) This Act shall become effective immediately upon passage.
     
    If you notice, nowhere in this "Provisions" section does it ever repeal
    cannabis laws or provide for other actions described under Section 1.
    You may certainly argue that "Directives and Orders" in Section 1 really
    means "Provisions" and should be incorporated by reference into the
    section specifically identified as "Provisions". The problem is that,
    due to the drafting, this argument will have to be made, and there is
    certainly no guarantee that a court will agree with your
    interpretation. A California court won't even consider European Law,
    let alone follow it. If Oliver Wendall Holmes himself had drafted this
    language, I would say that Oliver Wendall Holmes did a poor job in this
    instance.
     
    Bill Panzer
     
     
     
     
    David Malmo-Levine wrote:

     

    "William G. Panzer" <s..s@a2c2.us> Jan 04 02:21PM -0800  

    Mr. Levine:
     
    The link you provided is complete fantasy. Steve Kubby wasn't even
    around when 215 was drafted or when it first hit the streets. When it
    appeared the volunteer signature gathering would not be adequate, Steve
    was instrumental in bringing in financial backers who paid for Bill
    Zimmerman to manage the campaign and for professional signature
    gatherers. The "history" contained in your link is complete nonsense
    and isn't written by Dennis, as you claim. Given your absurd
    accusations and your apparent lack of any semblance of integrity, I am
    beginning to suspect you may be an agent provocateur. Just what is your
    background? Who are you really working for?
     
    Bill Panzer
     
    David Malmo-Levine wrote:

     

    "William G. Panzer" <s..s@a2c2.us> Jan 04 03:40PM -0800  

    Mr. Levine:
     
    Just to be clear, your information is erroneous. I did not submit an
    alternative to Prop 215 with Scott or anyone else. Dennis has never
    stated anything like that to me at any time. I am not surprised you
    failed when you tried to play lawyer. Who is paying you to try and
    screw up cannabis reform in California? Are you doing anything similar
    to screw up cannabis reform in Canada?
     
    Bill Panzer
     
    David Malmo-Levine wrote:

     

    Weston Brent Mickey <s..s@a2c2.us> Jan 04 12:27PM -0800  

    I would contact Bill McPike out of Fresno or Robert Raich out of Oakland.
    These are two highly experienced attorneys that get results. You also have
    the ability to host an initiative which would not be hard because the
    signatures needed to qualify would require a low threshold.
     
    Bill McPike, Attorney at Law 1-888-420-BUDS [2837]
     
    http://www.robertraich.com/
     
     
     

     

    R Givens <s..s@a2c2.us> Jan 04 01:46AM -0800  

    In spite of their proclaimed opposition to "regulations"
    conservatives approve "regulating" marijuana over legalizing it by a
    substantial majority. They do not seem to realize that regulation
    will bring everything they fear from legalization, just with a
    different name.
     
    We noticed the difference in acceptance of "legalization" vs
    "regulation" when a hempster booth at the Arizona State Fair was
    getting a totally negative reaction- UNTIL they changed gears and
    began talking about REGULATION. From then on they got a very positive
    reaction.
    R Givens
     
     
     

     

    "Bill McPike" <s..s@a2c2.us> Jan 03 10:00PM -0800  

    —–Original Message—–
    Sent: Tuesday, January 03, 2012 7:38 PM
     
    Please refer to your initiative of choice by name as I would like to sign
    and read. Enjoyed your bio very much. Ricki Ricki Ingersoll
     
    Ricki, Thank you, as I'm a very private person. Our brain trust drafted –
    REGULATE MARIJUANA LIKE WINE – 2012
     
    Bill McPike