Image Image

  Nostalgia ain't what it used to be

Thursday, 18 October, 2018
Image

California's Proposition 215 & Governmental Malfeasance

Date: 24 February, 1999

By: Chief & N.C.

Imagen 1996 the voters of California, through the process of ballot initiative, enacted into law "The Compassionate Use Act of 1996." This law authorized citizens of California who are under a physician's care for a serious illness and have a prescription the right to obtain, grow and use marijuana for medicinal purposes. The statute also protected physicians who prescribe marijuana to patients from losing their license to practice medicine. Hence, we have a law which protects patients and physicians from fear of arrest, loss of license and loss of property. That said, one would think that all is fine and dandy in River city. However, that is far from true. We've got trouble ... right here in River City ... with a capital 'T' and that rhymes with 'P' and that stands for politics and police.

Since enactment, federal and state organs have done their collective utmost to undo the will of the people. Patients have continued to be arrested. Their property has been seized and destroyed. Stores which sell marijuana exclusively to patients have been raided and shut down. The owners have been arrested. Physicians have been threatened with loss of license if they prescribe marijuana to patients. Yet we have a law which states it’s 'Ok' to use, grow, cultivate, prescribe and sell marijuana to those who require it. Like I said, we've got trouble.

The trouble, it would appear, stems from a political system run amok. Be it Democrat or Republican, it matters not. Both are equally at fault. Additionally, both major parties are big business and are fueled, primarily, from the coffers of big business. Moreover, it costs a great deal of money to campaign for an elected office. The vast majority of political candidates cannot afford to run for office without the financial resources of the major political parties and the resources of companies who stand to reap a financial windfall provided 'their' man (candidate) gets elected. Further, there is the party platform. If a candidate does not endorse his party's platform the candidate can expect no help whatsoever from his party. It is reminiscent of selling one's soul to the devil. Candidates, once elected, become, if you will, indentured servants to their particular masters — the financial kingpins of their campaign — not the voters and certainly not their oath of office.

Now the police have political ties as well and can be rather influential. Various police associations contribute heavily in political campaigns. The 'law and order' syndrome. Thus, we have police, employees of the state, providing financial assistance to their potential employer, the candidate. In turn, the candidate, once sworn into office, owes his employees. Isn't that an interesting catch 22? Finally there is belief. The belief that drugs are bad. Those who use or sell drugs are worse than other people and will be hunted down, arrested and imprisoned. Keeping society safe you know. What the law says is irrelevant. The Constitution ... never heard of it. This belief is fostered by the political parties' platforms and business. The citizen, in turn, is at the mercy of such belief. A dangerous and vicious circle indeed.

Enter malfeasance

Each and every 'public officer' in California, prior to assuming the office, be it elected or appointed, must take an oath of office. The oath is the same for all public officers. Part of that oath is to "support and defend the Constitution of the United States and the Constitution of the State of California ... bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California ... ." Bear in mind that "[a]ll 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." This becomes quite entertaining in regards to medicinal marijuana patients.

The governor is the chief executive officer of the state. It is his primary duty to see that the laws of the state are faithfully executed. In other words, it is the duty of the governor to ensure those people who use marijuana or prescribe marijuana under the provisions of § 11362.5 of the Health and Safety code can do so without fear. Yet, both former Governor Wilson and current Governor Davis have steadfastly refused to enforce the law. Indeed, they both took an oath to enforce the law. That is malfeasance. That is misconduct. That is an impeachable offense. Furthermore, the governors both failed in their fiduciary duty.

The attorney general is the "chief law officer of the state." He is subject to the powers and duties of the governor and it shall be the duty of the attorney general to see that the laws of the state are uniformly and adequately enforced. Additionally, the A.G. has direct supervision over every district attorney and sheriff. It is therefore fair to assume that county district attorneys and sheriffs, pertaining to Proposition 215, take their 'marching orders' from the attorney general's office. By failing to uniformly and adequately enforce the law (§ 11362.5), Attorney general Lockyer, has committed malfeasance, an impeachable offense. By condoning continued arrests of medicinal marijuana patients by county district attorneys and sheriffs, instead of immediately halting the practice of violating the law they swore to uphold, the chief law officer clearly has his head on the impeachment block. Indeed, since the A.G. is subject to the powers and duties of the governor, once again, the governor has committed malfeasance and could be impeached. The same hold true for district attorneys and sheriffs.

Interpretation of law

Like it or not, once a bill or initiative is enacted it is public policy. It is law. Citizens do not enjoy the privilege of interpreting what a given law means or whether or not a law even applies. I dare say if we did enjoy such a magnanimous privilege law would mean — nothing. Each of us could conceivably do as each of us saw fit. The same holds true for law enforcement. Be it police, district attorneys, attorney general or governor. To interpret a law in a manner beneficial to one group's position would be, at a minimum, arbitrary. Nobody, one would think, wants that. But, to the absolute detriment of medicinal marijuana users that is exactly what is happening to this very day. District attorneys and police are seizing people's property, arresting people, people whose only 'crime' is — obeying the law. It is these same people, these same patients who, when arrested and taken to jail, are denied life sustaining medicine — marijuana. If a county jail denied a diabetic their insulin and that person went into a coma the county would be liable for every dime they ever thought they'd collect in taxes. What is the difference? Insulin and marijuana are legitimate forms of medicine, albeit for vastly different conditions, but medications nonetheless. Yet the discriminatory treatment within county constabularies exists. All based upon unlawful interpretations of law.

Should a district attorney have questions pertaining to law help is just around the corner. This cornerstone is called judicial review. As it applies to the medicinal marijuana law, the statute did not set a specific amount of marijuana which can be grown or possessed by a patient. The law is somewhat vague on that particular point. Therefore, a district attorney, or anyone for that matter, can file for declaratory relief in a court of record asking that court to clear up the confusion. It is as simple as that. Time consuming, yes indeed. You may not even like the answer you get, but you will get an answer and that answer is law. Furthermore, if you don't like the answer you get you can appeal the decision of the court.

Steve Kubby and his wife were arrested because of that very issue. They were growing their own plants and because of the number of plants the Placer County District Attorney had them arrested. Their plants, growing lights, computers, wallets and passports were seized.

This happened January 19th. To date, they have not received any of their property back. Further, while the Kubbys were in the can, both were denied their prescribed medications. Steve was vomiting in his cell — the marijuana would have prevented that from occurring. Because the police seized their computer equipment, the Kubbys have ended up filing for bankruptcy. Why? Because in the mind of the district attorney the Kubbys were growing too many plants. Now, because the district attorney, the attorney general and the governor did not seek judicial review, a civil process, the Kubbys are being criminally persecuted, that's right, persecuted. Their business is in ruins, their lives could possibly lay in ruins, all courtesy of governmental malfeasance.

The police

Do not think for a split second the police are in the 'clear'. Not even close. Though they are the tip of the spear, police departments have chiefs, sheriffs or commissioners. Each department has access at least to an attorney who represents that jurisdiction. Some departments, such as the California Highway Patrol, have their own counsel. These chiefs, sheriffs or commissioners know, as in have actual knowledge, that Proposition 215 was enacted into law. These same department leaders, since enactment of Prop. 215, have willfully ignored the law. Malfeasance rears its reprehensible head yet again.

As it is the duty of police to enforce the law, and since medicinal marijuana patients are obeying the law, the sole duty of the police is to leave them alone. However, that is not the case now is it?

A police officer who has reasonable suspicion a person is using marijuana may briefly detain that person in order to conduct an investigation to determine if probable cause exists for an arrest. In the case of a person being detained based upon marijuana usage all the police officer need know is if the person is under the care of a physician and has a prescription for the drug. If the person has a prescription and decides to show the officer said prescription the police officer must let that person go as no probable cause exists to initiate an arrest for drug or drug related offenses. Any other action by a police officer is under color of law and is subject to damages based on violation of the detained person's civil rights. Additionally, should the police department have a policy which is contrary to the law, indeed - contrary to a specific constitutional provision, the leadership of the department is liable for damages in a civil rights case. No, police departments and officers are not off the hook, not by a long shot.

The courts

The place of last resort, last resort prior to insurrection or rebellion. It is here that reasonable people turn for relief instead of relying on gun shots. When judicial action is with us, We the People can hold our governmental organs in check. It is within the hallowed walls of a court of law that the final outcome of the medicinal marijuana initiative will be written.

Currently, there is no state case law on the subject. Not a whit. No one, government official or citizen, has sought relief through state's courts. Had someone sought declaratory and/or injunctive relief, perhaps, just perhaps, Steve and Michele Kubby would not have been arrested. In the federal courts an active battle is taking place. The federal government is claiming that Proposition 215 violates the supremacy clause via the interstate commerce clause. Attorneys for patients and cannabis clubs say 'not so'. What the final outcome will be no one knows. However, judges should keep firmly in mind that they, just like any other public officer, are subject to impeachment.

It is worthy of mention that the principles of federalism apply to this particular issue with customary full force and vigor. The question becomes does the Congress have Constitutional authority to regulate an individual state's medical process? Absolutely not. Nowhere within the U.S. Constitution is there such an enumerated power. However, there is a proscribing power. It is called the Tenth amendment and is most assuredly worth repeating here: "[t]he 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." The operative phrase is 'not delegated'. The Congress has no jurisdiction whatsoever to attempt to step in and regulate a state medical process. Moreover, the Supreme Court has placed a limit on how far the Congress can go in attempting to utilize the interstate commerce clause as its hammer on individual states.

In the Kubby case, the duty of the court of record seems crystal clear. If the district attorney did not have probable cause they cannot meet the burden of proof beyond reasonable doubt. The court should do three things. First, dismiss the criminal charges against the Kubbys. Second, order the district attorney to return the Kubbys' property immediately. Third, offer to look favorably upon a petition for declaration of factual innocence. This last one is of utmost importance. It provides the Kubbys with the vehicle, the lynch pin perhaps, to take the district attorney, police and possibly, though doubtful, the attorney general and governor into civil court. All we can do is wait and see.

Epilogue

The people of the State of California, by majority vote, enacted into law Proposition 215. Since enactment public officers, indeed Constitutional officers, have attempted and so far succeeded in usurping not only the will of the people but the vote of the people as well. The malfeasance committed by these officers will continue if the people and the courts do not step in and hold their public officers accountable. Be it through impeachment or be it through the courts. If we do nothing, people — our people, our fellow citizens — will continue to suffer at the hands of corrupt public officers, judges, police and the political parties who own them.

Mr. Justice Brandeis said it best:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution."

(Return to the top)