Tuesday, September 21, 2010

What's Wrong With Prop. 19 - The Regulate, Control and Tax Cannabis Act of 2010

What's Wrong With Prop. 19 - The Regulate, Control and Tax Cannabis Act of 2010: "
Notes on TRCATCA OF 2010
Founder & Curator

The above act is an initiative by the people of California to regulate, control and tax Cannabis. I wonder if the people of California really understand what they are getting by this act. But these are the sentiments of a 40 year smoker and grower of the plant. I’m a court stipulated marijuana and hemp expert. I’m not a lawyer, but I think a lot about the law and my rights in relation to hemp.
I want legalization as pre-1937. I want freedom and due process. I want equal rights. I want hemp. I want this proposed Cannabis Act to be no more than an educational experience for California. I do not want to be at the mercy of a really bad bill dealing with marijuana again. I want, as Arlin Trout put it: unconditional surrender. Prop. 19 is not legalization. To find out what it really means has been a long road that leads to the conclusion that I should VOTE NO ON PROP. 19, based on the many reasons below.
As background for my reasons to oppose Prop. 19, I spent two and one half years in court protesting S.B. 420, the State’s Medical Marijuana Program, as unconstitutional. I didn’t win, but I didn’t lose either. I was not allowed standing in court because I was not harmed by this voluntary law. Recently the California Supreme Court partially backed up my pleading by declaring plant limits void because they amended the Compassionate Use Act of 1996. But guidelines, clarification, changes, etc., are also amendments and will be exposed. Someday a case is going to change the ballgame and the ‘whole rotting edifice’ will come down and we will be left with the Compassionate Use Act of 1996.
So you know what I’m talking about, the legislature passed S.B. 420 using (citing) the power of the Ninth and Tenth Amendment to do so. Then they assumed because their power came from the Federal Constitution they did not have to follow the California Constitution and send S.B. 420 back to the voters as the CA Constitution requires of all amendments to Proposition 215.
Another greatly disturbing point is that in passing Proposition 215, the people assumed the power over medical marijuana (sort of out of thin air as the Federal Constitution has no enumerated power over medical marijuana, and the State government couldn’t get a bill past Pete Wilson). In other words the people had already claimed title to medical marijuana through Amendments Nine and Ten which clearly reads “the states or the people.” In California this means something as the people hold all the power. No contest.
And this initiative Proposition 19 is much more serious than I ever imagined. Prop. 19, as was pointed out by lawyer Letitia Pepper, effectively shreds the CA Constitution and all the personal rights contained therein. I had an old copy of the CA Constitution that did not contain this article. “Article 18: Amending and Revising the Constitution by Initiative. Section 3. The electors may amend the Constitution by Initiative.” Prop. 19 is a proposed initiative law that can and will amend the Constitution to gain legality. Listen to the following broad and vague statements from Prop. 19. “Section 11300: Personal Regulation and Controls. (a) Notwithstanding any other provision of law,” and Section 11301: Commercial Regulations and Controls. Notwithstanding any other provision of state or local law…” These two statements wipeout all Constitutional checks on legislation. They also wipe out and are capable of wiping out both the state (S.B. 420 Medical Marijuana Program) and initiative law on medical marijuana (The Compassion Use Act of 1996 or Prop. 215). All of our rights are written into law, including all our inalienable rights, and all appear to be in danger of being negated by “notwithstanding any other provision of state or local law” and turned over to “local control.”
The dictionary definition of notwithstanding is: “in spite of; without being opposed or prevented by.” In spite of is defined as: “in disregard or defiance of.” This could easily be interpreted as “In disregard or defiance of any other provision of state or local law.” And I don’t want to be a stickler, but don’t forget CA Const., Article I, Section 22, Constitution Mandatory and Prohibitory: The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Could these words express that mandatory and prohibitory are declared to be otherwise. Correct me if I am wrong. I am not a lawyer, but I want to know why I might be giving up all my rights for the City of Oakland and Oaksterdam.
I suspect that Prop. 19 is a blatant putdown of my rights, and the rights of all citizens of CA, under the CA Constitution Declaration of Rights. Control, Regulate and Tax is certainly not legalization and the text of the law doesn’t mention legalization. Let’s be honest about the initiative, it was written for the Oakland City relationship with Oaksterdam. This relationship is why the local control is written into law instead of equal rights for all citizens of California as called for by the CA Constitution, Article 1, Section 3 (b)(4): “Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a
person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.”
There is repeated one especially troublesome and unconstitutional part of both S.B. 420 and Proposition 19, that I think I can explain. The legislature after assuming a mythical power to subvert the California Constitution, gave up the people’s state law (Prop. 215) of a general nature (we all have the right to obtain and use medical marijuana, for any ailment for which it provides relief) to 538 local governments in violation of the “California Constitution, Article 4, SEC. 16. (a) All laws of a general nature have uniform operation. (b) A local or special statute is invalid in any case if a general statute can be made applicable.
There can be no uniform operation from 538 local governments. We have seen this in the 15 years of operation of Prop. 215 and six years of operation of S.B. 420. This same lack of uniform operation is to be found in Proposition 19. This time it is the people themselves through their initiative power that will violate this Constitutional mandate. And this mandate can’t be ignored unless Prop. 19 wipes out the Constitution. Once again we will have 538 local governments with 538 different regulate, control and tax laws. What’s good for Oakland is good for San Diego, and what’s good for Alameda County is good for Orange County, because California citizens live in those 538 different locales. No uniform operation. Anything less is unconstitutional. We don’t need more bad law. There are 538 cities and counties in California. There is no possibility of uniform operation of this law with 538 possible different local laws, including many bans. This is lawmaking at its worst. The Regulate, Control & Tax Cannabis Act contains this same “local government” violation of the Constitution. Prop. 19, “Section 3: (d) Definitions, (vi) ‘local government’ means a city, county, or city and county.” Again, this is mandatory.
According to Prop. 19 there will be 538 new regulate, control and tax laws or bans across CA creating an impossible patchwork of laws. Not counting old criminal codes, just the medical marijuana program, Prop. 215, and the proposed law, we’re up to 1614 different laws or codes in California to control, regulate, and tax marijuana. Follow me on the math if you can. First, S.B. 420 allowed 480 cities and 58 counties to control medical marijuana, which equals 538 different medical marijuana laws (or not). But then S.B. 420 is voluntary and if you did not volunteer for it, it doesn’t apply to you. Another 538 laws to cover those who didn’t apply for the government’s scheme under S.B. 420.
Regulation, control, and taxation are the opposite of freedom, the opposite of legalization. Fifteen years have gone by since the Compassionate Use Act of 1996 put the crack in the prohibition dam by taking the legislative power away from the state, creating new rights and freedoms and making marijuana legal for every California citizen under certain circumstances. Proposition 19 gives the power back to the state to draw up new laws and regulations the people will have no power over. Sure you think you can change the law after the fact, but look at the medical marijuana fiasco that came out of the state’s 538 medical marijuana programs.
The title of Prop. 19 itself is deceiving. This is a marijuana act not a Cannabis act. Any good Cannabis act would have given to the people the whole plant, and certainly Cannabis hemp for farmers. The omission of hemp killed the initiative for me. Someone has a completely different priority than me. If you don’t legalize Cannabis for the farmer, it’s not legal. I am a farmer. Some of us want equal rights. Farmers need to control the means of production, and when the government controls the means of production it is called communism.
The age limit of 21 years or older in Prop. 19 also violates the “CA Constitution, Privileges and Immunities, Article I, Section 7 (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”
But then maybe the focus groups that gave us this false legalization have never read the Constitution. The adults 18 – 21 years have the same inalienable rights I have in California and are adult citizens. Because 18 – 21 year olds are citizens, they cannot be excluded from the law. It was the Federal Government that gave us, under threat of highway funds being withheld, the 21 year old age limit for alcohol. The federal government is not now in control. The California Constitution and the people are in charge. Prop. 19 does not follow the law. But again maybe the focus groups didn’t know this was a constitutional violation. My question is did anyone take this into consideration? Is there some hidden agenda to bypass the CA Constitution and plead federal law again? If every 21 years in Prop. 19 has to be changed to 18 years, the initiative is doomed. All those people including the AG in his summary who thought 21 meant 21 were deceived.
“California Constitution, Article I, Section 23, Rights Reserved: This enumeration of rights shall not be construed to impair or deny others retained by the people.” The people have retained the right to use and obtain medical marijuana in Prop. 215. Not only am I given no right to my ounce in Prop. 19, but I can’t sell what I produce on my property, in privacy, exercising my liberty and recognizing that of others. Forty years of fighting for liberty around Cannabis and I get an ounce and no industrial hemp. According to Chris Conrad there are 50,000 viable uses for Cannabis, in Prop. 19 we get one use, one measly ounce that we already have a real right to in medical marijuana if we choose. Ask your doctor.
This is not a cool Cannabis Act. Unworkable, unconstitutional, unequal, unfair and so on, we can use the opportunity to educate ourselves and the rest of the world about what freedom is and is not. I don’t feel bad about depriving people of their ounce, because I’m not. They have the right and I can respect that. What I don’t like is being allowed an ounce and a 5 foot X 5 foot garden being called legalization by the government written summary and proponents. What this Prop. 19 is could be called a form of restrictionism – a policy by a legislative body (in this case local control by cities and counties, enabled by the people) to enact restrictions on marijuana.
CA Constitution, Article I, Section 26, states in full: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” In Prop. 19, the phrases “Notwithstanding any other provision of law…,” and “Notwithstanding any other provision of state or local law…,” are express words meant to obviate and eliminate any part of the Constitution including the before mentioned age limit and uniform operation. It is a question I can’t answer at this time as to whether these express words also curtail our individual liberties written into state law, such as privacy. It does give me great concern; if Prop.19 can obviate the Constitution, it can certainly wipe out a prior initiative like Prop. 215 and a statute like S.B. 420. VOTE NO ON GIVING UP OUR CONSTITUTIONAL SAFEGUARDS; VOTE NO ON PROP. 19.
Prop 19 neglects to legalize the most important and lucrative part of the Cannabis plant – HEMP. Yes, I am bummed that nobody asked my opinion on this Cannabis act. I had written an initiative I called the Cannabis sativa Act. I had experience on Jack’s 1994 initiative effort and wanted to see if I could improve on his effort. I did lower the age limit to l8 years, because of the CA Constitution, but in it we would get the 50,000 uses, people would be let out of jail, records would be wiped clean of non-violent pot crimes, etc. I believe that the Prop. 19 focus groups never got a glimpse of Jack’s initiative. NO HEMP; NO ON PROP.19.
We get no Cannabis hemp. This initiative is not about Cannabis, it is about marijuana. TRCATCA OF 2010 should have been about hemp as the legislature has passed two hemp bills that were vetoed. Hemp is what is best for California, not restrictionism that will certainly make a hemp farmer think twice about going beyond a 5 x 5 foot square. This Cannabis plant like every other plant needs to be controlled by the people through our inalienable individual rights. I like the tomato model, not the wine model. Let the farmer grow; unconditional surrender. Vote NO ON RESTRICTIONISM.
What does this mean and does it violate the one-subject rule? Prop. 19,Section 2, B, 13. “Permit California to fulfill the state’s obligations under the United States Constitution to enact laws concerning health, morals, public welfare and safety within the State.” This is certainly not covered by the title. It is broad and vague and carries no explanation about why it is included in this marijuana bill. Does the state now have a problem enacting laws that the people now have to permit them to do so, or is this another attempt to allow the state to bypass the California Constitution and do something devious? Sounds rather ominous in a Regulate, Control, and Tax initiative. VOTE NO ON BROAD AND VAGUE LAW; VOTE NO ON PROP. 19. Can anyone explain the why this purpose is included in Prop. 19? And why is it not unconstitutional under CA Constitution, Article 4 Legislative, Section 9: “A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void.”
I saw a couple of people in Orange County lighting up tobacco cigarettes outside a Pep Boy’s store and it reminded me that according to the Attorney General’s opinion after Prop. 215 was passed, I could smoke my medicine anywhere you could smoke cigarettes in public. Why should I give up my right to be equal with other smokers? Why was this unequal and unfair section even put in the law? I now suspect it is to drive people into the marijuana shops of Oaksterdam. VOTE NO ON INEQUALITY OF LAW.
Short list of possible Constitutional problems:
1. CA Constitution, Article 13 TAXATION: Section 3, “The following are exempt from property taxation; (h) Growing crops.”
2. CA Constitution, Article 13 TAXATION: Section 20, “The Legislature may provide maximum property tax rates and bonding limits for local governments.”
3. Prop. 19 is not about legalization and as Dennis Peron stated, “It is thinly veiled prohibition.” Look at the wording in Prop. 19: Section 11301: Commercial Regulations and Controls, “Notwithstanding any other provision of state or local law, a local government may…(g) prohibit and punish through civil fines or other remedies the possession, sale, possession for sale, cultivation, processing, or transportation of cannabis that was not obtained lawfully from a person pursuant to this section or section 11300.”
4. CA Constitution, Article 4 Legislative, Section 9: “A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void.”
5. CA Constitution, Article I, Section 26, states in full: “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”
6. “California Constitution, Article I, Section 23, Rights Reserved: This enumeration of rights shall not be construed to impair or deny others retained by the people.”
7. The age limit of 21 years or older in Prop. 19 also violates the “CA Constitution, Privileges and Immunities, Article I, Section 7 (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”
8. “California Constitution, Article 4, SEC. 16. (a) All laws of a general nature have uniform operation. (b) A local or special statute is invalid in any case if a general statute can be made applicable.”
One of the many questions from those who heard our NO ON PROP. 19 talks was, “What else is there to vote on.?” Other more comprehensive initiatives have been written, such as Jack Herer’s California Cannabis Hemp and Health Initiative. I am including an initiative I wrote years ago. This was written as an exercise in initiative writing.

We, the undersigned, registered, qualified voters of California, residents of the fore-described County (or City and County), hereby propose changes to the Health and Safety Code Sections 11357- 11362 relating to the Cannabis sativa plant by whatever name, and petition the Secretary of State to submit the same to the voters of California for their adoption or rejection at the next succeeding primary or general election or at any special statewide election held prior to that primary or general election or otherwise provided by law.
The proposed statutory initiative reads as follows.

This initiative shall be known as the Cannabis sativa Act of 2012 A.D.
A. The People of the State of California find and declare their rights under the U.S. Constitution, Articles IX and X. Article IX states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And Article X states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”
B. The United States Federal Government is forbidden by law to control farm production as it has with the plant Cannabis sativa in California (see U.S. v. Butler, 297, U.S. I, 1936), has interfered with medical use of the plant Cannabis sativa under the Compassionate Use Act of 1996, in violation of the spirit and intent of the U.N. Single Convention Treaty, and has continually (from the U.S. Marijuana Tax Stamp Act of 1937, to the present) subjected us to silence on the benefits of Cannabis hemp and the safety of medical Cannabis, while mounting the most pernicious campaign against the inalienable rights and privileges of California citizens as expressed in the California Constitution, Article 1, Declaration of Rights, Section 1: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
C. The People of the State of California find and declare that physicians, caregivers, producers and patients are continually being sanctioned, harassed, arrested and prosecuted for the recommendation, transportation, distribution and use of cannabis for medical purposes.
D. The People of the State of California find and declare that the development and use of Cannabis sativa (hemp) as a basic natural renewable resource is in the best interest of the state economy and that the development of Cannabis sativa for the production of hemp and hemp products can be of tremendous medical, environmental and social advantage.
E. The People of the State of California find and declare that the safety of Cannabis sativa (no overdose deaths in recorded history, no toxicity), warrants removal of the plant from the Schedules of the Controlled Substances Act, thereby re-establishing Cannabis sativa as a free market agricultural resource.
F. The People of the State of California find and declare that due to the safety
and lack of toxicity and many medical applications of Cannabis sativa, the government is not warranted to invade the privacy of the family unit on adolescent use of Cannabis, unless due process is used. Control of Cannabis sativa use in the home is in the proper purview of parents or guardians of underage Californians.
A. Therefore, be it resolved that the People of California do hereby declare that the purpose and intent of the Cannabis sativa Act of 2012 A.D. is to re-establish as an inalienable right of liberty of the people of California to use, grow, farm, sell and develop economically the plant Cannabis sativa free of interference by the United States Federal Government, pursuant to the Ninth and Tenth Amendments to the Constitution of the United States.
B. Therefore, be it resolved that the People of the State of California do hereby recognize the medical value of cannabis, and do hereby propose this Cannabis sativa Act of 2012 A.D. with the intent to authorize physicians to prescribe, pharmacists to dispense, producers to supply, and patients to use with or without a prescription Cannabis sativa for medical purposes, with the full protection of the law of the land given an inalienable right.
Medical use shall be defined as the personal consumption in any manner of any form of Cannabis sativa for any medical purpose as determined by an adult citizen of California or determined by the parent or guardian of underage Californians. This is an inalienable right of liberty for Californians.
The Cannabis sativa Act of 2012 A.D. shall be construed to repeal, delete, expunge, deny or abridge any California Statute or Code, criminal or civil, relating to the Cannabis sativa plant.
Any prescription issued by a licensed physician in the State of California for medical Cannabis shall conform to the standard format of a prescription and
recommendations of medical Cannabis sativa for any medical purpose may be made as deemed appropriate by the physician or the patient, recognizing the inalienable right of the patient to the plant.
Any pharmacist licensed in the State of California may purchase, transport, store, dispense, and sell Cannabis sativa for the purpose of filling a prescription issued by a physician. All Cannabis sativa sold by licensed pharmacists must be organically produced in accordance with the California Organic Food Act of 1990. No special form or procedure shall be required of a pharmacist filling a prescription for Cannabis sativa.
Zoning restrictions regarding the cultivation of Cannabis sativa for industrial purposes may be set forth by the proper authorities in the same manner as with any other food, agricultural or industrial enterprise, recognizing the inalienable right of the citizen to the plant.
(A) People engaged in the activities described in this Act shall be free from sanction, harassment, arrest and prosecution by any and all authorities.
(B) "Harassment" shall be further defined as any act departing from the norm observed in the course of inspecting or supervising a commercial agricultural enterprise, including, but not limited to, aerial surveillance of a kind not customary to a commercial agricultural enterprise.
(A) Enactment of this initiative shall include: release from prison, jail, parole and
probation, and clearing, expungement and deletion of all criminal records for all
persons currently charged with, or convicted of any Cannabis sativa offenses included in this initiative which are hereby no longer illegal.
(B) Evidence of criminal proceedings involving the plant Cannabis sativa which under this initiative are no longer illegal shall be expunged from a defendant’s record within 30 days of the passage of this Act.
This Act is an exercise of the public power of the state for the protection of the health, safety, and welfare of the citizens of the State of California, and shall be liberally construed to effectuate these purposes, remembering the citizen’s inalienable right to Cannabis sativa.
The provisions of this Act are severable. If any provision of this Act or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect any other provision or application of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
If this measure is approved by the voters but superseded by any other conflicting ballot measure approved by more voters at the same election, and the conflicting ballot measure is later held invalid, it is the intent of the voters that this Act shall be self-executing and given full force of the law.
This Act shall become effective immediately upon its approval by the voters.
This Act shall be self-executing.
This Act shall not be altered or amended except by a vote of the people.
Dennis’ List
Dennis Peron: TRCATCA OF 2010 is not legalization it is thinly veiled prohibition. Money spent at Bluesky is being used against you by keeping the reins of Prohibition on Cannabis with:
1. The plant police (5x5 restricted grow space & one ounce limit (this is supposed to be legalization)
2. The tax ensures police and new plant police will be paid to weigh our medicine equals high priced medicine.
3. Age limits (21) send the wrong message. Cannabis is safer than alcohol why equate it with it. [Alaska – age 19][French Commission on legalization of Marijuana recommended age 14].
4. Making public consumption illegal (currently there is no state law against it)
5. Creating new felonies where there were none.
6. Can’t smoke around your own kids (Cops can take them away)
7. No one gets out of prison, the status quo is preserved.
8. What is legal in one county or city will be illegal in others.
9. Creates a monopoly by limiting competition (excessive regulations prevent ordinary people from entering business)



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