Mark Friese: Ballot Measure Legalizing Recreational Marijuana Has “Substantial Flaws”

Dave Owen, middle, chairman of the North Dakota Marijuana Legalization Initiative, celebrtaes a high-five with volunteer Becky Muhs-Rettig inside the Secretary of State's office at the state Capitol on July 9 in Bismarck. More than a dozen volunteers filed into the room to submit the more than 18,000 petition signatures to Jaeger's office. Mike McCleary / Bismarck Tribune

This guest post was submitted by Fargo defense attorney Mark Friese of the Vogel Law Firm.

Decriminalization of marijuana is in sight. Congratulations to Legalize ND and their legion of support, including student organizations, and countless individuals from a wide range of political and professional backgrounds. Without funding, getting an initiated measure on the ballot takes extraordinary time, effort, and commitment.

An ever-increasing majority of people support efforts to decriminalize marijuana offenses. Having practiced criminal law for nearly two decades, after having enforced the law for over five years, I have formed a solid opinion that criminalization of most marijuana offenses is failed policy at its finest. We have spent too much money, dedicated too many resources, and ruined too many futures by overzealous prosecution and criminalization of a widely-used and relatively benign substance. I do not personally use marijuana, and I would not permit my children to do so. I neither condone nor support marijuana use. But equally, I do not support criminalizing possession of limited amounts or use of marijuana except in instances when the possession or use creates danger to others, like impaired driving or delivery of marijuana to a minor. Personally, for most marijuana offenses, I prefer decriminalization over legalization. Decriminalization provides authority to cite and fine, but not arrest or imprison. The current ballot measure takes a much broader approach, seeking full-out legalization.

While I applaud and support the current ballot measure and the overall policy it seeks to advance, I am concerned that the measure proponents failed to obtain adequate advice and counsel in drafting the specifics. If approved by voters, the measure will have far-reaching impacts, and may cause serious unintended consequences.

Section 5 of the measure provides: “No person over the age of 21 shall be prosecuted in any court for any non-violent marijuana related activity, with the exception of the sale of marijuana to aperson under the age of 21.” This broad, far-reaching provision may have substantial unintended consequences.

For example:

  • Current law prohibiting driving while impaired by marijuana would be abrogated.
  • Delivery of marijuana to a person under 21 by means other than sale (i.e., by gift, barter, or exchange) would be lawful.
  • Laws and ordinances prohibiting smoking cigarettes in public places would remain in effect, but those laws could not prohibit smoking or consumption of marijuana in public places.
  • Current neglect and endangerment laws would be abrogated (a parent who exposes a child to excessive marijuana use or leaves marijuana-related items in a place accessible to a toddler could not be prosecuted).

Section 2 of the measure says an individual under 21 possessing marijuana “shall be held to the same penalties as though they were a minor in possession of alcohol whatever those may be.” As a result, likely to the surprise of ballot opponents, those under 21 possessing marijuana would be treated as juvenile offenders.

Under existing North Dakota law, a minor is defined as a person under the age of 18. A person under the age of 18 is subject to juvenile court jurisdiction, and not adult criminal court prosecution—except in rare circumstances. Undoubtedly, proponents of the measure intended to treat marijuana possession by person under 21 like unlawful possession of alcohol by a person under 21 years of age, but by use of inartful language, they created something far different than they intended.

Section 4 of the measure seeks to expunge records for convictions “for a controlled substance that has been legalized or for an activity regarding the substance [which] has been legalized.” The provision provides that offenders “shall hereby have their records expunged and sealed by the court automatically.” Here, again, ambiguity and unintended consequences abound:

  • The term “records” is neither defined nor clear. Is expunction limited to court records, or does it include police records? Are records in prosecutors files included?
  • Oddly, the provision allows for expunction of controlled substance offenses or “activity regarding the substance,” but does not provide for expunction for possessing paraphernalia.

Section 4 further provides for an appeal, allowing trial by jury if the “automatic” sealing of records has not occurred. This jury trial right appears to conflict with constitutional and traditional prohibitions limiting trial by jury.

More problematically, Section 4 provides that if ordered to expunge or seal records on appeal, “the state shall pay all legal expenses for both parties.” A large majority of marijuana offenses are adjudicated in municipal courts. While likely intended to cover municipal offenses, the measure arguably does not. And by exclusion, municipalities cannot be ordered to expunge records, nor can they be held liable for resulting costs. Worse, the State may arguably be ordered to pay expenses for a municipality’s failure to expunge records.

While undecided, because I strongly support the policy of decriminalizing most marijuana-related offenses, I am likely to vote in favor of this measure notwithstanding its substantial flaws.

The measure provides “Any individual shall have the right to sue in court for damages as a result for failure to properly expunge records.” Criminal records are layered. Police and court records are compiled at the local, state, and federal level. Because federal law is typically superior to state law, it is unlikely that this measure would permit sealing of FBI criminal history records developed from North Dakota police or court records. Because “records” is undefined, this measure will create a substantial amount of litigation until the courts and legislature can clarify and remedy the ambiguity. And, under the terms of the measure, that litigation will likely be at the expense of taxpayers.

Alone, the expunction provisions and its resulting ambiguities provide a good reason to vote in opposition. The measure also has far-reaching unintended consequences, including abrogating laws prohibiting driving while impaired by marijuana, failing to provide a criminal penalty for marijuana possession by adults under the age of twenty-one despite an apparent attempt to do so, and many others which will become apparent with further study.

The Legislature has unmatched expertise in drafting law. With decades of experience, Legislative Council—the team of lawyers and staff assisting the Legislature—has longstanding institutional knowledge of North Dakota law. In traditional lawmaking, proposals which impact other laws are vetted, and reconciled. The handful of problems identified here, and the multitude of problems likely to be identified down the road, would all have been avoided by traditional legislation or consultation with legislators or those familiar with the process.

I have been an outspoken critic of prior ballot measures, including the abomination passed by uniformed voters and known as “Marsy’s Law.” While undecided, because I strongly support the policy of decriminalizing most marijuana-related offenses, I am likely to vote in favor of this measure notwithstanding its substantial flaws. Like the negative policies approved under the Marsy’s Law ballot measure, if adopted, the current measure will be subject to substantial litigation and legislative revision for years to come.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and the host of the Rob (Re)Port on Fargo-based WDAY AM970 from noon-2pm weekdays.

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