Marijuana Law Faces First Challenge Friday – and This One Doesn’t Come From the Feds

Olympia Paralegal Arthur West says He’s Out to Save the Business for the Little Guy – Challenge Comes on State-Constitutional Grounds

By Erik Smith
Washington State Wire

Olympia paralegal Arthur West.

See also: A Thurston County judge just says no to Arthur West’s injunction.

OLYMPIA, Dec. 5.—Washington’s landmark marijuana-legalization law faces its first challenge in court Friday, but this one doesn’t come from the feds – rather from an Olympia paralegal well-known in political circles as a gadfly who manages sometimes to deliver quite a sting.

Arthur West says he’s out to protect the little guy from the big corporate interests that stand to reap a bonanza if Initiative 502 is allowed to take effect. His suit challenges the measure on state-constitutional grounds, not the federal pre-emption arguments that are expected to be raised if the federal government decides to step in. And his suit presents quite an irony – as excitement over legal marijuana sweeps Olympia and the state as a whole, and corporate investors eye the opportunities in what is expected to be a billion-dollar business, a disheveled fellow in a rumpled jacket could bring the whole thing crashing down.

West specifically is leveling his challenge at the ballot title and the multiplicity of subjects he says are raised by I-502 – Washington’s constitution imposes a “single-subject” rule on all laws and initiatives, and it requires that titles explain the subject clearly. But West’s real beef with the measure, passed last month by Washington voters, is that in his view it is the wrong kind of legalization. The measure establishes an elaborate regulatory procedure for farmers, processors and retailers, and taxes them to the hilt. The business will be in the hands of the big dogs who manage to obtain licenses from the state, he says. But what about the guy who wants to grow a couple pot plants in his back yard?

“It will corporatize the drug market and get rid of all the small people, who will then be subject to the same penalties as moonshiners,” West complains. “We’ll have a whole new bunch of revenue agents whose job will be to bust small-scale growers because they are not compliant with 502.”

The political compromises that built the I-502 coalition, the complicated regulatory and law-enforcement structure that aimed to appease opponents, and the centralized business model that has the big boys licking their chops are what West says he’s determined to fight.

Medical Marijuana’s Counterattack

West goes to court Friday in Thurston County Superior Court for an injunction that seeks to delay the imposition of new penalties for driving under the influence of marijuana. But the overall suit might be seen as the final showdown for the disorganized medical-marijuana forces that mounted the only significant opposition campaign. Washington is among the 18 states that permit the sale of marijuana by prescription, a boutique business by comparison with the broad-scale legal sale to the public that eventually may be launched by the initiative. West, a medical-marijuana patient who has made a lucrative career of filing public-records requests to local-government agencies, collecting penalties and settlements when they fail to comply, was among those who bankrolled the $6,000 effort. It was outspent 1000-to-one.

The one argument that got the most publicity during the campaign was that the measure imposed draconian DUI penalties on marijuana users, in an attempt to beat the key argument that defeated Referendum 19 in California in 2010. It sets a THC threshold of 5 nanograms per milliliter of blood – and medical marijuana users say THC concentrations at that level can linger long after the buzz is gone.

But West says it also is a battle for the business itself. Ultimately he says he expects that the medical-marijuana trade would be shut down, because it runs counter to the big-business approach of the initiative. And certainly there is a measure of idealism in his crusade. “One of the beauties of what I think real legalization would do would be to make it so that the individual person could grow a few plants in their yard, and that would make the price go way down, make it so that people wouldn’t be shooting each other over it. There wouldn’t be a black market because it wouldn’t be worth people’s time to smuggle it. I-502 has such a high tax structure it is not going to even lower the price, and that is bizarre.

“The regulatory scheme seems to be devised to have a few large corporations or people with a lot of money who will grow 100 acres at a time dominate the production, and that is not what I want to see for Washington state, where there are a few people controlling the industry and the prices are higher than on the street. What I want to see is legalization where it is small-scale, and instead of having drug cartels and big corporations you have people growing 20 plants in their backyard and selling it to their neighbor.”

May Not Take Challenge Seriously

The attorney general’s office, which is defending the initiative, presents a curious argument with its brief. Rather than offering legal arguments about the propriety of the initiative and the ballot title, it simply numbers the paragraphs in West’s complaint and states that it denies the allegations, paragraph by paragraph. A stronger argument might have been mounted by referring to the state Supreme Court’s decision earlier this year upholding Initiative 1183, the liquor-privatization measure, which also was challenged on single-subject grounds. The court ruled that the authors didn’t exceed the bounds with an initiative that shuttered the state liquor stores and also established an elaborate new marketing structure for the privatized system that took its place.

Alison Holcomb, the ACLU drug-policy director who managed the I-502 campaign, said the argument doesn’t hold water. “Basically you’re talking about a ballot title here regarding marijuana and you are setting up a system for regulating its production and distribution and possession, and I think everything that is in Initiative 502 pertains to that issue.”

But West maintains that some of the elements included in the initiative to garner maximum political support go far beyond anything that was done in I-1183.

Accuses Supporters of Log-Rolling

For one thing, voters who read only the ballot title saw no mention of the DUI penalties. “I don’t think there’s ever been a new criminal law enacted without it being very clearly shown on the face of the initiative,” he said.

And the fact that it offers distributions of tax proceeds to interest groups with no rational relationship to marijuana clearly violates the single-subject rule, he says. Payments for migrant health care clinics and programs for at-risk youth, for instance, were clearly inserted in order to win the support of such groups as El Centro de la Raza and the Children’s Alliance. The suit calls the earmarks, “in essence, a hodgepodge of diverse politically motivated incentives and financial payoffs whose only motivating factor is that they were designed to garner support for I-502.”

The suit also contends that the DUI provisions compel unreasonable and invasive searches and seizures, a violation of the federal constitution.

“This is a very popular, liberally acclaimed initiative,” West said. “No one in the liberal community wants to hear they cut corners on the process or that there was a defective ballot title. Instead they are celebrating and lighting up a joint. I guess maybe the political haze over the landscape has made it harder to concentrate on the constitutional issues.”

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  • http://pulse.yahoo.com/_TY3TXMLDO5YIZFT53W7EXY5HJE Edward

    You go Mr. West! Right on.

  • SteveSarich

    In her comments, Alison Holcolm totally failed to acknowledge that the new criminal per se DUID was ALSO being added by the initiative and that, most certainly, did NOT appear on the ballot presented to the voters.  That’s a clear violation of the State Constitution.  This is not one she can lie her way out of like she did during the campaign.  

    The flood gates on the per se DUID will open starting tomorrow and I believe you’re going to see a lot of “buyer’s remorse” when non-impaired drivers start getting pulled over, and charged, by the Washington State Patrol.  The Christmas-New Years season is prime-time for WSP emphasis patrols.  Many of the 56% of the voters who passed I-502, and didn’t know about the per se DUID provision, may well end up with Christmas surprises they weren’t expecting….including major legal bills and the loss of their drivers’ license.

    Sadly, we know that a disproportionate number of the people targeted will be young men of color.  Shame on the NAACP for publicly supporting this law, even after they were warned of its inevitable outcome for the black community.  I suspect that the Reverends Leslie Brackston and Carl Livingston will have some serious explaining to do to their congregations since they were the prime backers of I-502.

    Steve Sarich
    Cannabis Action Coalition

    • Tim

      Shut up Steve. You lost. You’re only looking to make a buck.

      • SteveSarich

        Actually, it will be the DUI attorneys who’ll be making windfall profits from this law…and that’s coming right from the attorneys.

        If what Alison Holcolm has been saying for the last year is true, this won’t effect medical marijuana one bit.  So how am I making money by opposing this initiative?  I’ve heard this same idiotic argument through the entire campaign, but no one has come up with anything to back up these claims that the opposition was just trying to “make a buck”.

        And, in case you haven’t noticed….we haven’t lost just yet.

      • Dirtbikerkx250

        Tim shut up,your an idiot that has no clue of what the opposition is even about,money is the last thing on our minds,fairness and proper treatment of the public is our first priority!

      • Watchdog420

        Tim, you are an ingnoramASS.

      • Mike

        Hey Tim pull that dildo out of your ass you’re clogging up your brain.

  • ChronicKindness

    My intuition is that the outgoing AG did the minimum, simply denying the allegations in the complaint so as to avoid default, allowing the incoming AG the opportunity to make his own arguments. After all it is the new AG who will be taking this lawsuit on in less than a month. 

    Additionally West’s accusation of log rolling has legs. Buying political support with earmarked promises of cash reek of illegal payoffs. Initiative laws have NOT been allowed to do this in the past. If an initiative wants to earmark money for at risk youth, or migrant health care, it has to be an initiative for at risk youth, or migrant health care. Not an initiative on cannabis. 

    If the Courts want to change this, and say it’s ok, it’ll be a boom for all future initiatives. Simply insert language into every new initiative to buy support from all the community groups and we could legalize cocaine and meth too. 

  • Tim Crowley

    Dismissed.

  • Guest

    Uh, since when did this noted “gadfly” become an attorney?

    • http://disqus.com/notspicoli/ notSpicoli

      It looks like the article has been edited and Mr. West is no longer identified as an attorney, but rather as a paralegal.

  • ChronicKindness

    This is going all the way to the Supreme court. Yep

  • http://palmspringsbum.org/blog palmspringsbum

    “The one argument that got the most publicity during the campaign was that the measure imposed draconian DUI penalties on marijuana users, in an attempt to beat the key argument that defeated Referendum 19 in California in 2010. ”
    —–
    You really don’t have a clue what you’re talking about.  (By the way, it wasn’t a ‘referendum’ it was a ‘initiative’.)

    • http://disqus.com/notspicoli/ notSpicoli

      “Prop. 19 failed for a lot of reasons but the lack of a… DUI provision …was not one of them”

      Not true. It was one of the significant reasons cited by non-marijuana users and  California MADD and the California Highway Patrol actively campaigned against it because of their concerns. No such opposition by MADD was mounted over I-502.

      Quoting you, “You really don’t have a clue what you’re talking about.”

      • ChronicKindness

        Colorado has none of this DUI insanity…passed fine. MADD can go take a hike. 

        • http://disqus.com/notspicoli/ notSpicoli

          We’ll see what happens during the next legislative session in Colorado.

          • Steve

            Why?  Are you hoping they pass the same bullshit law down there so NORML attorneys can add to their pension funds?

            Worry not….I’ll be there for the next legislative session to make sure NORML doesn’t screw them like they screwed everyone in Washington State.

          • http://disqus.com/notspicoli/ notSpicoli

            Senator King etal had the votes at the end of the last session to pass the 5 ng limit bill and says he will re-introduce it. I’m glad to heat that you will bird dog it. Surprised you seem unaware of the situation.

            May, 2012: A bill that would set a marijuana blood standard for drivers–similar to that of current blood alcohol standards–took a big step toward approval on Tuesday when it passed 18-17 in the Colorado Senate.

            The Associated Press reports that a single vote change from Sen. Nancy Spence (R-Centennial), who voted in favor of the bill, gave SB 12-117 the support it needed to pass.

            Spence had voted with opponents of the bill in 2011, but said that she is convinced that a standard for legal impairment is needed in Colorado. “I’m just sick of the abuse that the state of Colorado has taken from the medical marijuana industry,” Spence said.

            If passed, drivers under the influence of marijuana would be considered impaired and unfit to be driving if their blood contains 5 nanograms or more of THC per millimeter of whole blood.

            The bill now faces one more vote in the Senate and is expected to pass. It will then go to the house where the 5 nanogram legal limit was overwhelmingly approved last year 51-14.

            On May 15: the vote in the Senate tied, 17-17 when Senator Nancy Spence, whose vote made the difference between passage and failure, was on vacation. The bill is be reintroduced at the next session by Senator King and it is predicted to pass

          • ChronicKindness

            Had the votes but didn’t get the votes.  Busted for lying again Senator King. 

            It has been introduced and Re-introduced by King and his MADD cronies for years. It never passes. Because it’s bogus science.

            Although now… with the political damage caused by 502 …. the MMJ community will have be on it’s toes across the country.

          • ChronicKindness

            It will be like every other LEGS session in Colorado. You prohibitionists will attempt a DUID like they have every year. And like every year the MMJ community will present real science and the DUID will again fail … like is has now three times in Colorado. Like a broken record. Only so much propaganda the MADD zealots can make up before they lose ALL credibility. 

            What is more interesting is what happens this LEGS in WA. Will your infamous leader make good and push an amendment here like she stated at Hempfest 2012? Or will she parade around naked pretending she has clothes? My money is on the later. 

          • Tiptop

            You can’t amend an initiative until after two years have passed.

            Does anyone crowing against the DUI limits in 502 have any, I don’t know, science to back up their hysterical claims? The only actual science that I have seen supports the limit as they will be testing for active cannaboid in the blood and NOTusing the current standard pee test that shows level of inactive compounds (and shows usage at some point in recent days/weeks)

          • K_mann

            Actually you can. An amendment within the first two years requires a 2/3 vote of the legislature. After the first two years it takes the simple 50% majority.

          • http://disqus.com/notspicoli/ notSpicoli

            The latest as of two days ago is that Senator King is “still in the process of trying to decide” about introducing the bill again in the next session. 

            As for amending the dui-c provision in WA, what are YOU doing to make it happen?

        • http://disqus.com/notspicoli/ notSpicoli

          I note that your “rebuttal” did not address your original assertion about Prop 19.

          • ChronicKindness

            I made no assertion about prop 19.   You have me confused with “palmspringsbum”…. c’mon pasta princess try and keep up.  After all you are getting paid for this. Being on the 502 payroll to troll the internet. 

          • http://disqus.com/notspicoli/ notSpicoli

            Stop making things up.

          • ChronicKindness

            I made note that you failed to address being on the 502 payroll. 

          • http://disqus.com/notspicoli/ notSpicoli

            I am not on anyone’s payroll. I am an unpaid, uncompensated, volunteer in all of my advocacy work including with I-502, New Approach Washington, and NORML.

  • http://twitter.com/edemarco Elizabeth DeMarco

    People of color won’t be the only one’s profiled. Don’t wear a tie dye and drive, dont have grateful dead sticks on your car, and men….don’t dare have long hair. If you look like a hippy expect to get pulled over now. These  draconian DUI penalties will onlyturn even more ppl just wanting to do their own thing in their lives into criminals. People need to stop pretending that cannabis is the same as any other drug. It is not, does not effect the body the same way….the voters of WA were fools, taken in by greedy liars.

  • Archangel275th

    This whole this stinks.   I-502 gives law enforcement free rain to do just about anything that they want when someone gets pulled over.  They say that things like smell is not enough to warrant a “probable cause” search of one’s vehicle but you know dam well that if an officer smells marijuana on your clothes or in your car he is going to find any other excuse to do a search and from there it will be “assumed” that you smoke marijuana.  Then if you refuse to be tested, well there goes your drivers license.   and what about the legal medical users that grow their own medicine.  I myself am a MMJ authorized user and I grow my own supply, and what ever is in excess of what I use is donated to a collective so that others may benefit from it.
    If I said it once I’ve said it a thousand times, I can’t wait to see the first government official that gets pulled over and they have 5 or more nano-grams in their system and then ask them how righteous they think the law is then.  My guess is that they will be among the first to fight this law with everything they’ve got.

    Respectively Submitted, Archangel275th.

    • K-mann

      Archngel- Or the politico’s 19 year old daughter, with any trace of THC.  As under 21 it’s zero tolerance. 
      Washington’s legalization scheme was written by prohibitionists. 

  • http://disqus.com/notspicoli/ notSpicoli

    “I guess maybe the political haze over the landscape has made it harder to concentrate on the constitutional issues.”

    John McKay, one of the 10 sponsors of I-502, is an actual lawyer. And he is a former federal prosecutor. And he is a law professor. And he teaches constitutional law. And he doesn’t use marijuana. In fact, he thinks those that do are “idiots.”

    • ChronicKindness

      PastaLady feels the need to remind Washingtonians as to why 502 sux. We already know it was written by and promoted by prohibitionists who, seeing the legalization coming moved out in front of it, sponsored their own sixty page manifesto on continuing the war on the plant, it users, and the freedoms it represents.  

      Colorado got the “sticky bud” of legalization, Washington got the “swag”… Colorado was created and promoted by marijuana experts and ours was done by … well she said it. Prosecutors and prohibitionists. 

      Let us hope Mr West is successful on final ruling at getting this monster thrown out so we can begin anew with a more sensible approach to legalization. 

  • http://www.facebook.com/Grafixwiz Bob Montoya

    Impairment? I am so tolerant that that Buzz everyone is concerned about never comes anymore …yet I am virtually pain free. Nail this fact down and apply it to the DUID laws. I’m sure I’m not the only one.

  • FREDMADCEL

    The  corporate sponsored spirits initiative is killing the little guy maybe it should be a dual lawsuit or  it should  include the under 10,000 sq foot  beer/wine  retailer. The national big guys are out to crush the smaller  retailer and  charge more without state supervision.  MC

    • K-mann

      COSTCO is already planning their cannabis take over. 

  • http://disqus.com/notspicoli/ notSpicoli

    Didn’t fly with the court. Undaunted, Mr. West is appealing.