County Prosecutor Jay Kimura says he has consulted with state Attorney General Mark Bennett and still views the Project Peaceful Sky ordinance as "unenforceable."
The measure, which Big Island voters approved overwhelmingly Nov. 4, would make the personal adult use of marijuana the county's lowest law enforcement priority. It would leave the enforcement of marijuana laws to each police officer's personal discretion and would direct the County Council not to accept state or federal funds for marijuana eradication.
"On the face of the ordinance, it appears to violate the separation of powers requirement under the (County) Charter, and as far as the state marijuana laws, there is a pre-emption issue," Kimura told the Tribune-Herald last week. "Under the Constitution, the state Legislature can pass laws, and in the areas where it passes laws, it prevents the county from passing contrary laws.
"We prosecute under the authority of the Attorney General, so these are state laws. So that would not change. As far as how the county proceeds on it at the police level, they're also bound by the Constitution to prosecute all laws, if they're valid laws, so it really wouldn't change anything. They would still need to enforce the law."
Police Chief Lawrence Mahuna, who is retiring Dec. 31, earlier called the initiative, which passed muster with Hawaii County voters by a margin of nearly 10,000 votes, a "resolution," not a law, and added "there will be no change how we prioritize the enforcement of marijuana. The resolution does not invalidate federal law. It doesn't legalize marijuana. It's still a Schedule 1 controlled substance."
"We will continue in our efforts to reduce the availability of illegal marijuana," Mahuna said in early November.
County Corporation Counsel Lincoln Ashida, who disagreed with Mahuna's description of the ordinance as a resolution, said that Peaceful Sky is an ordinance, as the County Charter allows for ballot initiatives passed by voters to become law.
Ashida does, however, have misgivings about the measure, which he and Mayor Harry Kim both opposed, and which was placed on the ballot by a 5-4 vote of the council, despite County Clerk Casey Jarman's ruling that it had garnered only 2,214 valid signatures on petitions, far short of the 4,848 voters needed to force a ballot initiative.
"You have the administration saying this is something that they cannot support, that there are an insufficient number of signatures on the petition," Ashida said on Friday. "Their own clerk said that there is an inadequate amount of signatures to even make it legal to go onto the ballot."
Kimura also maintained his stance that the amount of marijuana the ordinance would allow for personal use - up to 24 plants and 24 ounces of usable marijuana - is too much.
"I would consider that pushing it - and then again, it depends on how big the plants are," he said. "One thing we've noted recently is that where there's a limit on the number, the plants get bigger. So if you're limited to four plants, they tend to have four large plants."
The state's medical marijuana law allows for up to seven plants, three mature and four immature, and up to one ounce of usable marijuana per mature plant for each permitted patient.
"The police have been careful to respect that portion of the law," Kimura said. "It seems to be working, but I guess some people want more."
If Kimura is right, it's a lesson police may have learned the hard way.
A Kona couple, John and Rhonda Robison, received a $30,000 settlement from the county in 2004 for wrongful arrest. The Robisons and a houseguest, Kealoha Wells, were arrested at their home on July 8, 2002, after showing police a greenhouse they used to grow marijuana. Wells and John Robison were leukemia patients; Rhonda Robison had a form of muscular dystrophy.
Although they had valid medical marijuana permits and were growing fewer plants than the law allows, it was the third time the Robisons were arrested and released without charge and their plants seized.
Adam Lehmann, Project Peaceful Sky's director, has said that police have used taxpayer money to mistreat people.
"It seems to me they do check anyone who has a medical card. It gives them a reason to fly their helicopters," he said. Lehmann did not return a phone call to the Tribune-Herald on Friday.
Kimura said the provision in the Peaceful Sky Initiative directing the council to decline state and federal money for marijuana eradication "appears to be a valid portion, so far."
"Practically speaking, it would have an effect, but it wouldn't prevent the state or the federal agencies from enforcing existing laws," he said. "For example, if the federal government decides to conduct a marijuana raid or fly-overs, they would not have the same restrictions that we currently have under state laws."
Ashida said he is mindful that the public voted for the initiative, and that he wants to have a sit-down with stakeholders, such as Lehmann and the new police chief, to "hammer out" an agreement. He added that losing the state and federal funds would have other unintended consequences.
"The county receives a considerable amount of money from the state and federal government, not only for enforcement, but funds for interdiction programs and drug education in the schools."
News Hawk: MsRedEye: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Hawaii Tribune Herald
Author: John Burnett
Copyright: 2008 Hawaii Tribune Herald
Contact: Hawaii Tribune-Herald :: Hilo, Hawaii > Contact
Website: Hawaii Tribune-Herald :: Hilo, Hawaii > Archives > Local News > State's attorney says pot priority law void
The measure, which Big Island voters approved overwhelmingly Nov. 4, would make the personal adult use of marijuana the county's lowest law enforcement priority. It would leave the enforcement of marijuana laws to each police officer's personal discretion and would direct the County Council not to accept state or federal funds for marijuana eradication.
"On the face of the ordinance, it appears to violate the separation of powers requirement under the (County) Charter, and as far as the state marijuana laws, there is a pre-emption issue," Kimura told the Tribune-Herald last week. "Under the Constitution, the state Legislature can pass laws, and in the areas where it passes laws, it prevents the county from passing contrary laws.
"We prosecute under the authority of the Attorney General, so these are state laws. So that would not change. As far as how the county proceeds on it at the police level, they're also bound by the Constitution to prosecute all laws, if they're valid laws, so it really wouldn't change anything. They would still need to enforce the law."
Police Chief Lawrence Mahuna, who is retiring Dec. 31, earlier called the initiative, which passed muster with Hawaii County voters by a margin of nearly 10,000 votes, a "resolution," not a law, and added "there will be no change how we prioritize the enforcement of marijuana. The resolution does not invalidate federal law. It doesn't legalize marijuana. It's still a Schedule 1 controlled substance."
"We will continue in our efforts to reduce the availability of illegal marijuana," Mahuna said in early November.
County Corporation Counsel Lincoln Ashida, who disagreed with Mahuna's description of the ordinance as a resolution, said that Peaceful Sky is an ordinance, as the County Charter allows for ballot initiatives passed by voters to become law.
Ashida does, however, have misgivings about the measure, which he and Mayor Harry Kim both opposed, and which was placed on the ballot by a 5-4 vote of the council, despite County Clerk Casey Jarman's ruling that it had garnered only 2,214 valid signatures on petitions, far short of the 4,848 voters needed to force a ballot initiative.
"You have the administration saying this is something that they cannot support, that there are an insufficient number of signatures on the petition," Ashida said on Friday. "Their own clerk said that there is an inadequate amount of signatures to even make it legal to go onto the ballot."
Kimura also maintained his stance that the amount of marijuana the ordinance would allow for personal use - up to 24 plants and 24 ounces of usable marijuana - is too much.
"I would consider that pushing it - and then again, it depends on how big the plants are," he said. "One thing we've noted recently is that where there's a limit on the number, the plants get bigger. So if you're limited to four plants, they tend to have four large plants."
The state's medical marijuana law allows for up to seven plants, three mature and four immature, and up to one ounce of usable marijuana per mature plant for each permitted patient.
"The police have been careful to respect that portion of the law," Kimura said. "It seems to be working, but I guess some people want more."
If Kimura is right, it's a lesson police may have learned the hard way.
A Kona couple, John and Rhonda Robison, received a $30,000 settlement from the county in 2004 for wrongful arrest. The Robisons and a houseguest, Kealoha Wells, were arrested at their home on July 8, 2002, after showing police a greenhouse they used to grow marijuana. Wells and John Robison were leukemia patients; Rhonda Robison had a form of muscular dystrophy.
Although they had valid medical marijuana permits and were growing fewer plants than the law allows, it was the third time the Robisons were arrested and released without charge and their plants seized.
Adam Lehmann, Project Peaceful Sky's director, has said that police have used taxpayer money to mistreat people.
"It seems to me they do check anyone who has a medical card. It gives them a reason to fly their helicopters," he said. Lehmann did not return a phone call to the Tribune-Herald on Friday.
Kimura said the provision in the Peaceful Sky Initiative directing the council to decline state and federal money for marijuana eradication "appears to be a valid portion, so far."
"Practically speaking, it would have an effect, but it wouldn't prevent the state or the federal agencies from enforcing existing laws," he said. "For example, if the federal government decides to conduct a marijuana raid or fly-overs, they would not have the same restrictions that we currently have under state laws."
Ashida said he is mindful that the public voted for the initiative, and that he wants to have a sit-down with stakeholders, such as Lehmann and the new police chief, to "hammer out" an agreement. He added that losing the state and federal funds would have other unintended consequences.
"The county receives a considerable amount of money from the state and federal government, not only for enforcement, but funds for interdiction programs and drug education in the schools."
News Hawk: MsRedEye: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Hawaii Tribune Herald
Author: John Burnett
Copyright: 2008 Hawaii Tribune Herald
Contact: Hawaii Tribune-Herald :: Hilo, Hawaii > Contact
Website: Hawaii Tribune-Herald :: Hilo, Hawaii > Archives > Local News > State's attorney says pot priority law void
