Tuesday, October 18, 2011

Federal Over-reach & The Small Axe of Repeal: By Joe Rogoway Esq.,

Below is a statement from Joe Rogoway about the Repeal Cannabis Prohibition
Act of 2012 in response to the recent federal actions. Please feel free to


Federal Over-reach & The Small Axe of Repeal: By Joe Rogoway Esq.,

Co-Proponent of the Repeal Cannabis Prohibition Act of 2012

* *

We can return to the shadows and cages of prohibition while lamenting how
sweet it once was to taste liberty. Acquiescence may at first seem to be
the reasonable path towards self-preservation. But in the end, submitting
to injustice is always worse because the ultimate result is inequity and
freedom becomes illusory.

Over the past 15 years, we Californians have transformed what was once an
illicit and dangerous black market into a thriving multi-billion dollar a
year industry. We have successfully created jobs and tax revenues while
responsibly providing safe access to those who are medically qualified. From
the example we set, 16 other states and the District of Columbia have
followed our lead in enacting their own medical cannabis laws. We have
accomplished this together and through the free market.

The federal government now seeks to punish California because of these
successes. The rationale behind this new intrusion is an obvious hypocrisy;
that the federal government is cracking down on people it feels operate
beyond the parameters of a state law that the federal government does not
recognize as legitimate. Unfortunately, whatever the rationale, federal law
will continue to preempt state law to the extent that state law legalizes
conduct that is in conflict with federal law. This is true regardless of
the baseless and preposterous claims made by some that a statewide
initiative can somehow opt out of Constitutional preemption.

Federal law does not, however, prevent a state from repealing the state‚s
own laws. This was recently affirmed in *Pack v. Superior
Court[1] (Oct. 4, 2011), No. B228781, where the California Court of Appeals
unanimously ruled:

"There is a distinction, in law, between not making an activity unlawful and
making the activity lawful. An activity may be prohibited, neither
prohibited nor authorized, or authorized." *Pack* citing the Supreme Court
of California in Viva! Internat. Voice for Animals v. Adidas Promotional
Retail Operations, Inc., supra,* 41 Cal.4th at p. 952.)

The Repeal Cannabis Prohibition Act of 2012 makes cannabis related conduct
"neither prohibited nor authorized". The RCPA also does not establish the
sort legal framework that would be required for the affirmative regulation
of cannabis. Instead, the RCPA creates a new state agency, the California
Cannabis Commission, which itself is vested with the authority to promulgate
commercial cannabis regulations.

Under the *Pack* analysis, because the RCPA is not actually "authorizing"
conduct that is in conflict with the Controlled Substances Act, the RCPA
largely avoids the specter of being preempted through court challenge.

Sensible California believes that the Repeal Cannabis Prohibition Act of
2012 is the most effective weapon available in resisting the current
blitzkrieg. Court challenges and continued lobbying will drain our
resources with limited results. Other initiative efforts are poorly written
and legally untenable.

Through successfully repealing California‚s criminal prohibitions on
cannabis, we will win the war. State and local governments are responsible
for the vast majority of cannabis prosecutions. By forcing the federal
government to unilaterally enforce cannabis prohibition, we are drawing them
into a costly and frustrating quagmire that they cannot win.

This is precisely how alcohol prohibition began to crumble. Local
cooperation ceased and federal agents were stuck enforcing unpopular laws,
over multitudes of people, across vast stretches of territory. As was true
then, the federal government simply does not have the resources to wage a
domestic war of that magnitude. This is particularly true because all adult
cannabis related activities will no longer be prohibited which will supply
the medical cannabis community cover from the scythe of federal enforcement.

Perhaps this provocation is the sort of folly that is subject to the law of
unintended consequences. Through stoking the coals of the complacent and
divided, the United States Attorneys Office may have ignited the passions of
activism and the togetherness of a unified community. If the patients,
lawyers, doctors, medical providers, cannabusinesses, political
organizations, and other allies work as one to repeal cannabis prohibition,
we will succeed; and that success will itself be a mortal wound to the beast
of prohibition. Please join Sensible California and together we will create
a new paradigm in cannabis policy.

Sensible California

P.O. Box 282

Santa Rosa, California 95402

Sunday, October 16, 2011

Repeal Cannabis Prohibition Act of 2012 - 9/30/11

Repeal Cannabis Prohibition Act of 2012 - 9/30/11

Repeal Cannabis Prohibition Act of 2012

This initiative measure is submitted to the People of the State of California in accordance with the provisions of Article II, Section 8 of the Constitution.

This initiative measure adds Chapter 6.7, entitled “Repeal of Cannabis Prohibition,” to Division 10 of the Health and Safety Code.


SECTION 1. Sections 11420, 11421, 11422, 11423, 11424, 11425, 11426, and 11427 are added to the Health and Safety Code, to read: 

11420(a). This Act shall be known and cited as the Repeal Cannabis Prohibition Act of 2012.

(b)(1) The People of the State of California hereby find and declare that the purposes of the Repeal Cannabis Prohibition Act of 2012 are as follows: 

(A) To ensure that adults have the right to obtain and use cannabis. 

(B) To ensure that adults who participate in cannabis related activities are not subject to criminal arrest, prosecution, or sanction.

(C) To make cannabis available for scientific, medical, industrial, and research purposes.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from driving impaired, nor to condone the diversion of cannabis to minors.

(c) “Cannabis” means “marijuana” as defined in Section 11018 and “concentrated cannabis” as defined in Section 11006.5.

11421(a). The following statutes are hereby repealed from the Health and Safety Code: Section 11054(d)(13), Section 11054(d)(20), Section 11357, Section 11358, Section 11359, Section 11360, and Section 11361. Section 23222(b) of the California Vehicle Code is hereby repealed. Cannabis related activities are hereby removed from the prohibitions contained within Health and Safety Code Sections 11364.7, 11365, 11366, 11366.5, 11379.6 and 11570.

(b). The repeal of Health and Safety Code section 11360, as related to sales only, will be effectuated within 180 days of passage of the Act in order to allow the California Cannabis Commission the opportunity to enact commercial cannabis regulations.

11422. It shall not be a crime or public offense for an adult, 19 years of age or older, to use, possess, share, cultivate, transport, process, distribute, sell or otherwise engage in cannabis related activities.

11423(a). A new state commission is hereby created and shall be named the California Cannabis Commission which shall be empowered to establish and oversee the regulatory system for the commercial cultivation, manufacturing, processing, testing, transportation, distribution, and sales of cannabis. This shall include promulgation of regulations to control, license, permit, or otherwise authorize the commercial cultivation, manufacturing, processing, testing, transportation, distribution and sales of cannabis. These regulations shall include appropriate controls on the licensed premises for commercial cultivation, sales and on-premises consumption of cannabis including limits on zoning and land use, locations, size, hours of operation, occupancy, protection of adjoining and nearby properties, and other environmental and public health controls. These regulations may not include bans of the conduct permitted by this Act. The Legislature is hereby empowered to define the organizational structure and membership of the California Cannabis Commission.

(b) Any regulations created by the California Cannabis Commission may not infringe on the individual rights set forth in this Act. Any taxes, regulations, fines and fees imposed pursuant to this section shall not be imposed on personal amounts of cannabis below 3 pounds of processed cannabis and 100 sq. ft. of cannabis plant canopy per adult provided that the processed cannabis was not sold or purchased pursuant to subdivision (a).

(c) The California Cannabis Commission may regulate the smoking of cannabis in public.

11424. This Act, and all state implementations of this Act, shall preempt enactments of local jurisdictions with the exception that local jurisdictions may enhance the rights and protections of persons involved in cannabis related activities beyond what is delineated by the state or this Act.

11425. This Act shall not adversely affect the individual and group rights and protections afforded by California Health and Safety Code §11362.5 through §11362.83.

11426(a). Except as authorized by law, every person under the age of 19 who possesses, cultivates, transports, or distributes cannabis shall be guilty of a misdemeanor or an infraction.

(b) Except as authorized by law, every person 19 years of age or older who furnishes cannabis to a person under the age of 19 shall be guilty of a misdemeanor or infraction.

(c) Cannabis related conduct that contributes to the delinquency of a minor shall continue to be punished by Penal Code section 272. Driving while impaired by cannabis shall be punished by Vehicle Code Sections 23103, 23152(a), and 23153. Impairment occurs when a person's mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

11427. If any word, sentence, clause, or provision of this Act or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.