Eastern District of California Blog

Feds Stir The Marijuana Pot As Kern County Tries To Regulate

That's the title of a lengthy piece in yesterday's Bakersfield.com, which is excerpted below:

Federal law enforcement officials are the wild card in the regulation of medical marijuana in California. Sometimes they play the trump. Sometimes they're not even in the game.

When storefront shops selling medical marijuana first appeared in Kern County, the Drug Enforcement Administration aggressively raided them and federal prosecutors filed charges against the operators.

Then federal intervention slacked under a new administration and the burden of hefty law enforcement costs.

Now, U.S. Attorneys' offices are warning California cities and counties that they could face criminal or civil action if they try to regulate marijuana under state law.

Kern County has received that threat and taken it seriously -- factoring it into an Aug. 9 decision to ban storefront collectives and cooperatives in unincorporated county areas.

But is there really a risk of federal prosecution? It's unclear.

. . . with limited resources, the office has to pick the cases it brings carefully, he said.

But Wagner said his office retains the power to prosecute or file civil suits against local governments that act to permit medical marijuana activity.

That, said Kern County Counsel Theresa Goldner, leaves Kern County in legal danger.

"It is my job to advise the Board of Supervisors of the risk that regulation entails to the county, county officials and county employees. I am satisfied that it is a genuine risk," she said. "But it is a risk that is difficult to quantify."

QUANDARY

On Aug. 9, Kern County supervisors passed a ban on medical marijuana collectives and cooperatives over the objections of a vocal, impassioned crowd of advocates who called for the county to regulate, not outlaw, the storefront operations.

Marijuana, even for medical purposes allowed under California's 1996 Compassionate Use Act, is illegal under federal law.

In making their decision, supervisors relied on an Aug. 4 letter from Wagner, sent at the request of Goldner, which indicated that by regulating medical marijuana growing and distribution, counties and cities would essentially be putting themselves in business with criminals.

* * *

When he took office in 2007, [Kern County Sheriff Donny] Youngblood made it clear that he wouldn't enforce the ordinance in place at the time that allowed up to six medical marijuana dispensaries -- because it violated federal law.

His stance hasn't changed.

"I will not take part in any regulation of anything that is a violation of federal law," Youngblood said.

He sees medical marijuana collectives and cooperatives as illegal. Period.

* * *

The county took a bit of a risk in August when it also placed a 12-plant limit on any marijuana grown on a parcel of land in unincorporated parts of the county.

Wagner said that while those small grows are still a felony under federal law, "in the real world" of limited resources and larger problems, that "would not be a priority for us."

But Wagner was careful, even in saying that, not to relinquish the federal government's right to prosecute small grows.

And that is what troubles Goldner as she tries to advise supervisors on how to move forward with regulation of collectives and cooperatives.

An ordinance that controls collectives will demand enforcement by the county.

"It's going to require a great deal of regulation. And that translates into a great deal of taxpayer money and involves a great deal of county employee time and resources," she said.

And "the more involvement the county has, the closer the county gets to being in the danger zone in terms of federal prosecution. And that's the rub."

Wagner told her as much on Thursday, she said.

"The message that I got from Mr. Wagner, loud and clear, is there is no safe harbor," Goldner said.

Patterson City Councilwoman Sues Stanislaus Grand Jury In Federal Court

Patterson City Councilwoman Annette Smith struck back against the Stanislaus County Civil Grand Jury this week, filing a federal lawsuit against the county Wednesday, Sept. 28, after a June 27 jury report criticized Smith and other city officials and called for Smith’s ouster.

The complaint for damages — filed in U.S. District Federal Court in Sacramento — seeks an injunction against the grand jury to stop further alleged abuse of authority and publication of transcripts from the investigation. The suit also calls for the jury to revise its findings, and seeks unspecified damages and attorney fees.

The Patterson Irrigator, 9/29/11

70-Month Prison Sentence For Real Estate Fraud

Judge England sentenced Royce Lee Newcomb, 49, of Roseville to 70 months in prison Thursday for a real estate fraud scheme and for filing illegal bankruptcy petitions.  Sacramento Business Journal, 9/30/11

E-Discovery Rules

A helpful reader (intellectual property and business litigation attorney Joanna Mendoza), pointed me to Federal Circuit Chief Judge Randall R. Rader's remarks regarding the problem of excessive e-discovery in patent cases and the Circuit's Advisory Council Model Order on E-Discovery from a Fed. Cir. Bar Association circulation.  I'm re-posting it below as it appears to me to be applicable more generally to complex litigation and may be helpful to EDCA civil litigation attorneys and other interested readers:

On September 27, 2011, at the Eastern District of Texas Bench and Bar, Chief Judge Randall R. Rader highlighted areas deserving of attention to improve patent litigation. A pdf of this can be found here. Chief Judge Rader cited six important areas of focus for both Bench and Bar consideration and improvement, including the problem of excess e-discovery. In coordination with the Chief Judge's remarks, the Circuit's Advisory Council publicly released a proposed "Model Order on E-Discovery in Patent Cases" found here.  

I promise more on the usual blog issues (marijuana, mortgage fraud, Fourth Amendment, etc.) as soon as I squeeze in some free time.

Advocates For Disabled Sue California Over Budget Cuts

The Arc of California and the United Cerebral Palsy Association of San Diego want to block a 4.25 percent cut in state reimbursement for services to people with mental or physical disabilities. The groups also want the U.S. District Court in Sacramento to prevent the state from furloughing such services 14 days a year and introducing a half-day billing definition.

"The whole system is just collapsing," said Tony Anderson, executive director of The Arc of California, a Sacramento-based nonprofit that represents and serves people with developmental disabilities.

Sac Bee Blog, 9/28/11; Mercury News, 9/29/11.

Judge Garland E. Burrell, Jr. To Take Senior Status July 4, 2012

Sacramento District Judge Garland E. Burrell, Jr., will take senior status on July 4, 2012, opening up an EDCA district court vacancy.  Ninth Circuit Judicial Vacancies.   The Daily Journal reported that he intends to handle a reduced caseload once he goes senior.   Any guess how long it will take for Congress to confirm a replacement?

Sacramento Office of Security Firm Sued For Discrimination

The Sacramento office of a private protection firm is accused in a lawsuit filed today of discriminating against older males by favoring younger females for armed security positions.

The suit, filed by attorneys with the U.S. Equal Employment Opportunity Commission, alleges that, in February 2008, Trinity Protection Services' Sacramento office discharged four men and three women because of their scores on an arms re-qualification shoot.

"While the men were told to wait six months before taking the re-qualification test again, the women were called approximately a month later and invited to come in and re-qualify," according to an EEOC release. The action violated federal law prohibiting age and gender discrimination, the release said.

Sac Bee Blog, 9/27/11

Guest Bloggers Welcome

I'm open to the idea of guest bloggers and expect to have my first guest post soon.  Anyone else interested with something to say of interest to EDCA practioners or otherwise appropriate for this blog?  Nothing from an advocate about a pending case.  Maybe a criminal defense issue or even something outside my sphere of expertise.  Opinionated, yes.  Gossipy, no. 

This NY Times, 9/25/11 article entitled "Sentencing Shift Gives New Leverage to Prosecutors" discusses the enormous power prosecutors have to coerce guilty pleas from defendants who otherwise may want to contest their guilt, due to mandatory minimums, sentencing guidelines, and prosecutors' ability to file increased charges if a deal is not accepted.   This guilty plea graphic shows how the percentage of federal trials has gone down dramatically since the advent of mandatory minimum penalties and sentencing guidelines in the 1980s.

It has always stuck me as wrong that prosecutors have more control over sentences than judges.  While I may disagree with a judge's sentence in a particular case, I much prefer a neutral person deciding a sentence over a partisan party in a contested case.   The Supreme Court's Booker decision helps in making the sentencing guidelines advisory rather than mandatory, thereby giving judges much greater discretion to impose a reasonable sentence.  Eliminating mandatory minimums would help a lot more. 

Feds Charge Elk Grove R & R Wellness Owner And Five Others

The 27-year-old [Bryan Smith] ran R & R Wellness Collective, a south Sacramento dispensary registered as a nonprofit medical marijuana provider.

But U.S. prosecutors say the young dispensary boss was part of a lucrative conspiracy involving multiple growing houses, stolen electricity, pot distribution to Southern California and vast wads of cash.

In a Sept. 12 criminal complaint against Smith and five others, authorities suggested Smith courted a medical marijuana high life and boasted of his success in a video said to be an attempt at an audition tape for the MTV program "True Life."

Smith's attorney, Mark Reichel, said his client is an honest businessman with no criminal record who was trying to operate a city-licensed dispensary "lawfully as a nonprofit" under state law.

R & R Wellness is one of 38 establishments allowed to operate under Sacramento's medical marijuana rules, which include business and licensing fees and a medical marijuana tax, approved last year.

Sacramento Bee, 9/25/11; news10.net, 9/16/11; criminal complaint.

Judge Wanger's Influence On California Water Law Highlighted

Judge Wanger's bench comments and criticism of government scientist witnesses in his "salmon" decision Tuesday (my 9/20/11 post) has garnered lots of attention in the press and blogsphere, see, e.g., NY Times Green Blog, 9/21/11 and Washington Examiner, 9/22/11, and the on-line arm of today's SF Chronicle has this AP piece focusing on his water law jurisprudence:

A federal judge whose rulings in high-profile California water cases have had far-reaching impact on protections of threatened fish species and on how much water flows from the Sacramento-San Joaquin Delta to farms and cities is stepping down after two decades on the bench.

The decisions of judge Oliver W. Wanger — who leaves the courthouse on Sept. 30 — have at times angered farmers, environmentalists and federal government officials. Despite this, Wanger, 70, is recognized by all sides for his historic role and his strict adherence to the law.

"Over the course of the last two decades, no one has had a greater influence on California water than Judge Wanger," said Tom Birmingham, general manager of the Westlands Water District, the largest agricultural water district in the nation, which has participated in numerous cases before the judge. "There isn't a judge for whom I have greater respect."

Bill Jennings of the California Sportfishing Protection Alliance, which has often opposed Westlands in court, echoed the sentiment: "We have found him to be a fair judge who addresses what is before him."

Photo AP, SF Examiner.