Medical Cannabis Counsel:
Solid Legal Advice. Expert, Grounded Counsel.
February 28, 2013
Matt Kumin was featured on CannabisNationRadio.com in which he discussed the rights of medical patients to cannabis, and the constitutional challenge against the federal governments' restrictions on cannabis patients currently pending in the Ninth Circuit Court of Appeals as Sacramento Nonprofit Collective, et al. v. Eric Holder, et al. No. 12-15991.
Clover Leaf's Cannabis Executive Breakfast
February 23, 2013
Matt Kumin was one of the featured speakers at the Clover Leaf Cannabis Executive Breakfast held in Denver, Colorado. Click here to watch the full video.
October 26, 2010
California and its Medical Cannabis Laws: A State of Confusion
In 2003, the California Legislature tried to “fix” the Compassionate Use Act (Proposition 215) which California voters passed in 1996. The problem with the original voter initiative was simple: it did not allow for a safe, legal and consistent supply of cannabis for patients. When the legislative “fix” took effect on January 1, 2004, one short provision in it changed the legal framework but it also caused massive confusion. California Health and Safety Code section 11362.775 states the patients can associate “…collectively or cooperatively to cultivate marijuana for medical purposes…” Prior to 2004, under the old framework of Proposition 215, two patients sitting in a room together could not give each other cannabis. Arguably, under the new law, if the two patients are members of an association such as a cooperative, they could distribute cannabis to each other. I say arguably because the law is still very unclear.
Look at the language of the statute: it specifically says that patients who associate “…to cultivate…” are protected. But what if the association/cooperative doesn’t cultivate, a common industry reality? Law enforcement agencies who are frightened of cannabis (mostly because they know, consciously or unconsciously, that legalization will eventually mean loss of jobs and budgets for their agencies) claim that a group of patients who want to invoke this law to protect them against criminal sanctions must “cultivate” cannabis together. In the example of the two patients in the room, if both purchased cannabis from a cooperative that didn’t cultivate and shared it with each other, some law enforcement agents would say the cooperative isn’t valid and therefore the sharing would be illegal. In an even more extreme position, if the two members join a cooperative that does cultivate but they only purchase from the cooperative rather than take part in the cultivation, some law enforcement agencies have indicated that is also illegal. Finally, many conservative law enforcement organizations in the state take the position that any cash transfers for cannabis are also unlawful.
Let’s look at the rest of the language of the statute. It says that the patients and caregivers who associate together to cultivate “shall not solely on the basis of that fact [cultivating together] be subject to state criminal sanctions under Section 11357 [possession of cannabis], 11360 [transportation of cannabis], 11366 [maintaining a place for the sale, giving away or use of cannabis], 11366.5 [making available premises for the manufacture, storage or distribution of a controlled substance, e.g. cannabis],, or 11570 [abatement of a nuisance created by premises used for manufacture, storage or distribution of a controlled substance].”
What does that mean?
For at least one court [People v. Urziceanu (2005) 132 Cal.App.4th 747, 785], that phrase was interpreted broadly. The court said that the Legislature’s “specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.”
Well, that’s extremely helpful and a lot better than the position of law enforcement. Under this decision, a cooperative can sell marijuana to its patients. And the court also said that a cooperative could purchase cannabis on the black market for its patients! Of course, the Attorney General, charged with writing regulations under SB420, later (in 2008), wrote that the cooperatives must be a “closed circuit” of cultivation and consumption. But even the Attorney General is not the final word on cannabis cooperatives (which is a good thing since conservative LA District Attorney, Steve Cooley, running for State Attorney General, will probably win and if he does win, he will most likely withdraw the generally favorable Jerry Brown guidelines currently in place and replace them with guidelines that will make conservative law enforcement happier, e.g., no sales, no money exchanged, cultivation only, etc.
Stay tuned for more on these issues
Los Angeles: To Cannabis or Not To Cannabis
I have to admit that when LA medical cannabis industry and its “operators” arrived en masse on the scene after SB 420 passed (going from something like 0 to 1000 dispensing operations in less than 3 years) I didn’t want to go to LA and work with them. The scene struck me as anarchic, out of control and clearly, almost every LA operations violated numerous state laws. Why risk my license to practice? Plus, it looked to me like the attorneys were letting their clients lead them around by the nose. If the client wanted to make money and if the attorney wanted to make money off the client, the attorney said sure, do what you want. It just felt dirty. Northern California seemed like a better place for my in every way.
So, why did I finally relent and open up an office in LA?
First, Mike Chernis, an attorney, colleague and friend begged me to come down and help him challenge the LA Ordinance. He said it was horrible and violated patients’ rights. I reviewed it with him and came to the conclusion that it did violate patients’ rights to privacy, to associate freely and violated their equal protection rights as well (all under the California Constitution.)
Second, I knew that eventually, the industry would have to become more realistic about California’s vexing non-profit requirement and that the models our Firm developed for successful cooperative formation and compliance would become popular among those willing to make the critical compromise, trading money for safety. I wanted to make sure that our model and our approach would be available to the industry. Too many attorneys were setting up structure that made their clients vulnerable to law enforcement action.
Third, as the nation’s largest and most experienced law firm serving the medical cannabis industry, I believed that we must have a presence in the Nation’s second largest City and the City with the most patients and cooperatives.
So, almost 8 months later, here’s what we’ve been doing in LA.
1. We are lead counsel in Anderson v. The City of Los Angeles, BC 438671, a class action lawsuit brought on behalf of medical cannabis patients residing in Los Angeles, challenging the constitutionality of the City’s medical cannabis ordinance. Judge Mohr, who has been assigned all of the medical cannabis cases brought against the City, has so far scheduled 3 separate days for oral arguments (the next one is set for November 3 and we’ve had two so far) and I have been at counsel table as the main attorney handling the argument for the plaintiffs so far. On the first day we had about 200 lawyers, media and patients crowding a courtroom the judge moved us to in order to accommodate the huge crowd. Stan Kimmel spent the first part of the hearing discussing whether the State’s Uniform Controlled Substances Act pre-empted the criminal penalties in the Ordinance. We then spent the bulk of the session, about an hour and a half, discussing whether the City could lawfully require the cooperatives to disclose the names of their patients/members to the police without a warrant or subpoena. My favorite moment in that hearing came when the Court asked the City’s attorneys what they planned to do with the patient information. The reply? We will give it to the police! I had been standing up to continue arguing but when I heard that, I sat down.
At the second session the judge continued the discussion about privacy rights and if I had to guess, I’d say that he will find the provision unconstitutional. We then moved onto associational issues. This is about our government guaranteeing that we have the choice to associate with whomever we please without interference. For medical cannabis patients who must join a cooperative to comply with State law of face a criminal sanction, it’s difficult to see how the City can not only tell people who to associate with but also tell them they can only join one cooperative.
The next hearing is set for 1:30 – 4:30 in Judge Mohr’s courtroom at the Central Civil West courthouse located at 600 South Commonwealth Avenue, Los Angeles. Anyone can attend and if you’re interested in the politics and legal issues, it’s a fascinating discussion. Meanwhile, I hope we can get the judge to see that treating medical cannabis patients like criminals is just wrong!
2. We opened an office downtown at the Wells Fargo Center, [333 S. Grand Avenue, 25th Floor, Los Angeles, CA 90071 Tel. (213) 943-1385] where we hold workshops and meet with clients. We may move and a number of different options are available to us. We’ll keep everyone posted if we do decide to move.
3. We’ve made ourselves available to the legal community for advice and consultation and to partner on cases. Because we’ve got over 30 years of combined experience addressing medical cannabis issues nationally (between us and our Denver staff) we feel responsible for ensuring that clients receive the best legal advice possible, even it that advice comes from another attorney! We freely share our briefs and legal theories with other attorneys. One colleague referred to us as “free market collaborators.” There’s an enormous amount of work ahead of us and we want to help organize the legal community to take it on and coordinate as much as possible. Civil rights attorneys in the South during the Civil Rights Movement worked together and with their constituencies/clients closely and those combined efforts paid off in countless ways. We see medical cannabis as a civil rights issue and encourage everyone to think about medical cannabis not only as an important economic boon to our community but as way to put an end to this outrageous, stigmatizing, divisive, and class- and race-based, drug war.