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Electronically Filed Dec 18 2012 09:16 A.M. Tracie K. Lindeman

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Electronically Filed Dec 18 2012 09:16 A.M. Tracie K. Lindeman 1 IN THE SUPREME COURT OF THE STATE OF NEVADA 2 3 4 Electronically Filed THE STATE OF NEVADA, NO. 60464 Dec 18 2012 09:16 a.m. 5 Tracie K. Lindeman Appellant, Clerk of Supreme Court 6 vs. 7 NATHAN HAMILTON, 8 Respondent. 9 10 THE STATE OF NEVADA, NO. 60466 11 Appellant, 12 vs. 13 14 LEONARD SCHWINGDORF, 15 16 Respondent. 17 RESPONDENTS’ ANSWERING BRIEF 18 19 APPEAL FROM GRANTING RESPONDENTS’ MOTION TO DISMISS EIGHTH JUDICIAL DISTRICT, CLARK COUNTY 20 21 Robert M. Draskovich, Esq. 22 Nevada Bar No. 6275 23 John Million Turco. Esq. Nevada Bar No. 6152 24 Turco & Draskovich, LLP. 25 Gary A. Modafferi, Esq. 26 Of Counsel – Nevada Bar No. 12450 815 S. Casino Center Boulevard 27 Las Vegas, Nevada 89101 28 (702) 474-4222 Docket 60466 Document 2012-39965 1 TABLE OF CONTENTS 2 3 I. TABLE OF AUTHORITIES ........................................................................... 2 4 5 II. INTRODUCTION ........................................................................................... 4 6 III. STATEMENT OF THE CASE ...................................................................... 6 7 IV. STATEMENT OF THE ISSUES .................................................................. 7 8 9 V. ARGUMENT ................................................................................................. 12 10 I. Chapter 453 is unconstitutionally vague because it fails to provide ordinary 11 people sufficient notice regarding the exercise of their constitutional right to access medical marijuana and because it authorizes or encourages arbitrary and 12 discriminatory enforcement . .12 13 14 II. The question of whether Chapter 453 is unconstitutionally vague should not be impacted by the Legislature’s alleged attempt to avoid invalidation of the 15 statute on the basis of federal preemption. .22 16 VI. CONCLUSION .............................................................................................. 26 17 18 VII. CERTIFICATE OF MAILING ..................................................................... 27 19 VII. CERTIFICATE OF COMPLIANCE ............................................................. 28 20 21 22 23 24 25 26 27 28 1 O 2 1 I. TABLE OF AUTHORITIES 2 Case Authority 3 Page(s) 4 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). .14 5 City of Las Vegas v. Eighth Judicial Dist. Ct., 118 Nev. 859, at 864, 59 P.3d. 447 (2002). 6 . .14, 21 7 Gaston v. Drake, Nev. 175 (1879)…. .17 8 9 Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)…. .14 10 Musser v. Utah, 333 U.S. 95, 97 (1948). .14 11 United States v. Oakland Cannabis Buyer’s Co-op, 532 U.S. 483 (2001) . 23 12 13 Sheriff Clark County v. Hank, 91 Nev. 57, 530 P.2d. 1191 (1975). 16, 17 14 State v. Hughes, ___ Nev. ____, 261 P.3d. 1067, 1069 (Nev. 2011) . .17 15 16 Winters v. New York, 333 U.S. 507, 515-16(1948) . 14 17 Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). .14 18 19 20 21 22 23 24 25 26 27 28 2 O 3 1 Statutory and Rule Authority 2 California Health and Safety Sections 11362.7-11362.83 . 6 3 Nevada Constitutional Amendment Article IV, Section 38 . 5, 7, 17 4 5 NRS 453A ......................................................4, 6, 8, 10, 11, 12, 13, 15, 16, 18, 20, 21 6 NRS 453A.310 (b) (1). .6 7 NRS 453A.310 (2) . 6 8 9 NRS 453.3385 . 7 10 NRS 453A.060… . 15 11 NRS 453A.051 . 15 12 13 NRS 453A.300 (1)(E) . 16 14 18 U.S.C. § 841 . 15 15 16 18 U.S.C. § 841 (h) . 25 17 18 Other Source Authority 19 Colorado Amendment 64 . 24 20 http:///www.sfgate.com/business/bloomerg/article/Washington.Colorado-allow- 21 recreational-use-of-marijuana4016776.pnp.. .24 22 National Conference of State Legislatures “Initiative and Referendum Legislature 23 Database”. 13 24 . 25 Washington Initiative 502 . 24 26 27 28 3 O 4 1 I. STATEMENT OF THE ISSUES 2 I. Whether Chapter 453 is unconstitutionally vague because it fails to 3 provide ordinary people sufficient notice regarding the exercise of their 4 constitutional right to access medical marijuana and because it authorizes 5 or encourages arbitrary and discriminatory enforcement? 6 II. Should the question of whether Chapter 453A is unconstitutionally vague 7 be impacted by the Legislature’s alleged attempt to avoid invalidation of 8 the implementation statute on the basis of federal premption? 9 10 II. INTRODUCTION 11 In an attempt to exercise their constitutional right to access medical marijuana, 12 Nathan Hamilton and Leonard Schwingdorf opened and operated a non-profit co- 13 1 14 operative medical marijuana dispensary. Respondents registered the business with the 15 Secretary of State and funded operations by donations members made to the 16 dispensary. Members of the dispensary had been given previous medical authorization 17 18 to receive medical marijuana and they also obtained State registered medical 19 marijuana cards. The members of the co-operative included patients suffering from 20 various types of cancer, human immunodeficiency virus, and from chronic and acute 21 22 pain. 23 On five separate occasions a detective posed as a medical marijuana patient, 24 25 became a member of the co-operative, and obtained medical marijuana. As required 26 27 1 The constitutional right to access medical marijuana is guaranted by Article IV, Sec. 38 of the Constitution of the State of Nevada. The medical marijuana dispensary opened, owned, and operated by the Respondents was located at 8221 W. 28 Charleston Blvd., #107, Las Vegas, Nevada. 4 O 5 1 by all members, the detective became a member of the dispensery through verification 2 that the detective possessed a valid State issued medical marijuana card. Upon each 3 visit, the detective gave the dispensary a recommended donation for the medical 4 5 marijuana. The detective admitted under oath that he did not question what would 6 happen if he refused to give the suggested donation. 7 The Respondents were indicted on multiple counts of sale, trafficking and 8 9 possession of a controlled substance. Respondents filed a motion to dismiss the 10 charges arguing that the statute meant to implement the constitutional right to access 11 medical marijuana was vague and overbroad. The District Court agreed with the 12 13 Respondent’s arguments finding that Chapter 453A… “falls short however in 14 providing a realistic manner in which a qualified purchaser and a qualified distributor 15 16 of marijuana may function, thus frustrating the clear intent of the Nevada 17 Constitutional Amendment, Article IV, Section 38…”2 The Court went on to find that 18 the challenged statute, “does not further but rather frustrates the constitutional 19 3 20 mandate to reasonably provide a method for lawfully obtaining medical marijuana. 21 22 23 24 25 2 Appellant’s Appendix (hereinafter “AA”) at 168. Judge Mosley’s Findings of Fact, Conclusions of Law, and Order 26 Declaring NRS 453A Unconstitutional and Granting Defendants’ Motion to Dismiss All Charges with Prejudice. In his Order, Judge Mosley made it clear that the court was “not a proponent of mediacl marijuana” but rather the matter was 27 … “decided (by) giving deference to the will of the people of the State of Nevada as expressed by lawful vote…” 28 3 AA at 167. 5 O 6 1 III. STATEMENT OF THE CASE 2 Respondent Hamilton disputes the State’s contention that because Hamilton 3 “had a medical marijuana card from California but had not yet been approved for a 4 5 medical marijuana card in Nevada … Hamilton was not protected by the exemption 6 contained in Chapter 453A that he now claims to be unconstitutional.”4 This issue was 7 not properly raised before the District Court.5 8 9 Actual possession of a valid Nevada medical marijuana registry card is not a 10 prerequisite for legally asserting a “defense to a criminal charge of possession, 11 delivery or production of marijuana, or any other criminal offense in which 12 13 possession, delivery or production of marijuana is an element,” if that person “has 14 been diagnosed with a chronic or debilitating disease within the twelve month period 15 16 preceding his or her arrest and has been advised by his or her attending physician that 17 the medical use of marijuana may mitigate the symptoms or effects of that chronic or 18 debilitating medical condition.”6 Appellant Hamilton’s possession of a valid 19 20 California medical marijuana registry identification card is proof of standing pursuant 21 7 to NRS 453A. 22 23 24 4 Appellant’s Opening Brief (hereinafter “AOB”) at fn.1. 5 This issue may have been further mooted by Respondent Hamilton’s current medical condition. As of the date of this 25 filing it is unclear whether Mr. Hamilton is clinically alive after recently suffering severe brain trauma. 6 NRS 453A.310(1)(a)(1). This section allows for those who do not have a valid Nevada medical marijuana card to raise 26 a defense if that person engages in the medical use of marijuana and assists others in the possession, delivery and/or production of medical marijuana. NRS 453A.310 (b)(1) and (2). See also NRS 453A.310(2) “A person need not hold a 27 registry identification card issued to the person by the Division … to assert an affirmative defense described in this section.” 28 7 California Health and Safety Code sections 11362.7-11362.83. 6 O 7 1 Respondents also note that the crimes that they have had been charged with for 2 exercising the constitutional right to access medical marijuana carry a potential 3 mandatory life term with the possibility of parole, with eligibility for parole beginning 4 8 5 when a minimum of 10 years has been served. 6 7 IV. STATEMENT OF THE FACTS 8 9 Appellants concur with the State’s conclusions that on two separate occasions 10 the voters of Nevada supported the legalization of access to medical marijuana with 11 tremendous popular support.”9 Ballot Question No.
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