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

1 IN THE SUPREME COURT OF THE STATE OF NEVADA 2

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

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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

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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

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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.

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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.

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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.

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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 to NRS 453A.7 22

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.

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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. 9 was the initiative to amend the 12 13 Nevada Constitution to allow the use and possession of marijuana for the treatment of 14 certain illnesses upon advice of a physician, to require parental consent for such use 15 10 16 by minors, and to authorize the Legislature to adopt appropriate methods of supply.

17 A topical review of the Summary of Legislation prepared by the Research Division of 18 the Legislative Counsel Bureau clearly shows that implementation of Chapter 453 did 19 20

21 8 AA 42, (Trafficking in Controlled Substance) NRS 453.3385 . 3(a). The State specifically alleged “28 grams or more 22 of a controlled substance” subjecting Respondent’s to this punishment. (Counts 6 and 8) AA 44-45. 9 AOB at pp. 3-4, citing 71st session, minutes of May 7, 2001, meeting of the Assembly Committee on ways and means, Assembly Bill 453, Statement of Assemblywoman Chris Giunchigliani. Unfortunately, even Ms. Giunchigliani would 23 ultimately recognize that the Nevada Legislature was unable to transform the voter’s mandate authorizing the Legislature to adopt appropriate methods of supply into a cogent implementation statute. When Assemblyman Collins asked, besides 24 growing medical marijuana, if the State was out of the business of either supplying the medical marijuana or the seeds to grow medical marijuana where would the patients get the medical marijuana? Assembly woman Giunchigliani said “the 25 legislation did not address distribution; the patients would continue obtaining the marijuana by whatever means they had in the past.” 71st Session, minutes of the April 12, 2001, meeting of the Assembly on ways and means, Assembly Bill 26 453, statements of Assembly man Collins and Assembly woman Giunchigliani. The Legislature plans on addressing the failure to provide appropriate methods of supply this coming session. See Respondent’s Index (“R.A.”) at 92, Affidavit 27 of SenatorRichard Segerblom. 10 State of Nevada Ballot Questions, issued by the Honorable Dean Heller, Secretary of State, 28 HTTP://www.leg.state.nv.us/division/research/votenv/ballotquestions/2000.pdf.

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1 not fulfill the constitutional mandate of Article IV, Sec. 38, authorizing the 2 Legislature to adopt appropriate methods of supply.11 The legislative summary states 3 that, “this bill further establishes a procedure for distribution of medical marijuana 4 5 through a registry identification card system. The bill directs the State Department of

6 Agriculture to establish and maintain a registry identification card system whereby 7 cards are issued to persons who meet the requirements of having such medical 8 9 conditions and submit an application to the department.”12 The summary does not 10 describe any other method by which citizens may access an appropriate supply of 11 medicinal marijuana. The summary recognizes that, “the department also is required 12 13 to aggressively pursue Federal Government approval of a seed bank and a program to 14 produce and deliver marijuana to eligible individuals.”13 This never happened because 15 16 the State suudenly veered from this course without providing for an alternate method

17 of supply. 18 The State argued in its Opening Brief that Chapter 453A was “specifically 19 14 20 intended to promote the self-grow and charitable giving methods of supply.”

21 However, no legal method exists in the State of Nevada to obtain even obtain the 22 23

24 11 AA139. This summary of Legislation was initially attached as Exhibit A of Defendant’s Reply to State’s Opposition to 25 Defendant’s Motion to Dismiss. 12 AA139. 26 13 This mandate never happened. The authority for overseeing the registry system did not develop into a “program to produce and deliver marijuana to eligible individuals.” This oversight capacity was transferred from the Department of 27 Agriculture to the Division of Health. A flow chart that currently describes the card registry system appears on their website. AA 142-146. A procedure for distribution or access is not discussed therein. 28 14 AOB at p.11.

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15 1 seeds to grow medical marijuana. Nearly a decade after the passage of the 2 challenged implementation statute, Nathan Hamilton and Leonard Schwingdorf, 3 opened a medical marijuana cooperative dispensary on West Charleston Boulevard in 4 5 Las Vegas.

6 The medicinal marijuana dispensary was operated publicly and openly. The 7 business was officially registered with the Secretary of State.16 The business acted as a 8 9 cooperative where registered patients with state issued registry identification cards 10 were allowed to obtain medical marijuana.17 A suggested, but not mandatory donation 11 for the medical marijuana was exchanged between registered cooperative members.18 12 13 It was the written and agreed policy entered into by all members of the 14 cooperative that any monies, contributions, consideration, or any other designation of 15 16 the exchange of monies, was strictly intended to continue the dispensary’s operation,

17 maintain its place of operation, compensate its employees, and provide a public 18 location necessary to enable distribution to members with medical marijuana for their 19 20

21 15 22 The confused state of Chapter 453 was underscored by the prosecutor’s interpretation of how implementation was to occur; Mr. Laurent: “Now our contention is that the Legislature has designated what is supply, what is the authorized way of delivery. And that is for someone to obtain a medical marijuana card, for the purchaser to have it, - or the 23 receiver to have it, not the purchaser because you can’t sell, and for the person providing to have it. But in no circumstances does the statute allow; in fact, specifically precludes and proscribes the person delivering from possessing 24 more then the statute allows.” Transcript of Proceedings Defendant’s Motion to Dismiss for Violation of Void-for- Vagueness and Overbreadth Doctorines, before the Honorable Donald M. Mosley. AA 152. 25 16 AA53. 17 AA53. 26 18 AA6 the undercover Detective who produced a valid registry card and became a registered member of the cooperative was specifically informed that members may pay a donation. AA5-6. The Detective did not ask what would happen if he 27 did not pay the donation. AA5-6. The Detective avoided simply walking out of the dispensary with the medicine and without giving a donation to test the true nature of the co-operative non-profit paradigmbecause the police wanted to 28 aggregate more charges.

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19 1 medical needs. The undercover detective presented a validly issued Nevada medical 2 marijuana registry card and joined the cooperative by agreeing to the conditions of 3 membership.20 The undercover detective proceeded to obtain medical marijuana on 4 5 multiple occasions. On each occasion, the police officer gave a member the suggested

6 donation.21 7 A hearing was held on Respondent’s Motion to Dismiss for Violation of Void- 8 9 for-Vagueness and Overbreadth Doctorines. At that hearing, the District Court Judge 10 asked the prosecutor whether, “In good conscience, can you say that the applicable 11 law now in place can mandate that there is a way to legitimately distribute this 12 13 substance?”22 The prosecutor replied with a theory of compliance that he believed 14 would be legal under Chapter 453. The medical marijuana patient could have three to 15 16 five plants however, “if you’re going to harvest all of those with the current yields all

17 at the same time, you’re going to be way over an ounce, you just are, because they 18 produce more than that in the current yield if you’re successful at growing marijuana. 19 20 Those persons who have excess, before they hit their maximum amount they could

21 give that away. There’s nothing that proscribes them from giving it away to someone 22 23 24

25 19 AA53-54. It remains unclear whether the undercover detective who produced a validly issued Nevada medical marijuana registry card was untruthful to the Division of Health about his actual need for medical marijuana. Members 26 of the cooperative included those who were terminally ill, suffering from various types of cancer, and those diagnosed with H.I.V. Details about the operation of the Cooperative were initially offered in a writ filed by Respondents. RA 1-57. 27 20 AA6. 21 AA7-8. 28 22 AA155.

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23 1 who holds a card.” The problem with excess come s from a failure to define mature 2 versus immature plant as used in the challenged statute. 3 The Court then asked, “But in any case, so you’re saying what is contemplated 4 5 by the Legislature is that the provider will have three plants we’ll say which would

6 render more than an ounce. And when someone came in for their gift of marijuana, 7 since they can’t sell it, the provider would harvest off a plant… Whatever an ounce 8 9 would be, and give it away.” The prosecutor responded stating, “could harvest … or 10 could provide them with seeds to that plant, or cuttings to make their own plant so 11 they could make their own.”24 12 13 The Court then went to the issue of consideratin as defined under Chapter 453. 14 The Legislature contemplates a delivery, but not a sale.25 The State responded, “what 15 26 16 they say is no delivery for consideration.” The Court answered, “that’s a sale where

17 I come from.”27 The District Court asked the prosecutor, “so this person who is the 18 provider has to be a charity or something, and I don’t know where they’re going to get 19 20 this marijuana to give away without paying for it. So doesn’t that make it pretty much

21 an impossibility?”28 22 23 24

25 23 AA155. 24 AA156. The prosecutor also claimed that people with truly debilitating conditions such as Alzheimer’s can through an 26 agency relationship have a caretaker that “can in your stead grow that for you and go out and secure that.” AA159. 25 AA161. 27 26 AA161. 27 AA161. 28 28 AA162.

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1 The prosecutor then suggested that Nevada medical marijuana patients, who 2 could not legally get their medicine in the state, “could get it out of state… The 3 patient could get seeds or plants from out of state, all those things could occur.”29 At 4 5 that point the District Court recognized that; “the Constitution mandates that we

6 provide a method here; not, by the way, go to California.”30 The prosecutor then told 7 Court; “it doesn’t say it has to be here. I mean you can interpret it that way, judge, and 8 9 I take no issue with it because I’m just arguing the statute as I’m told to do.”31 10 The State’s interpretation of the statute is not facially supported by the statute. Also, it 11 is critical to note the distinction that it is not “free” marijuana that would be provided 12 13 under the State’s model, but “free” medical marijuana. The distinction is enormous.32 14 VI. ARGUMENT 15 16 I. Chapter 453 is unconstitutionally vague because it fails to provide ordinary people suuficient notice regarding the exercise of their 17 Constitutional right to access medical marijuana and because it 18 authorizes or encourages arbitrary and discriminatory enforcement.

19 On November 7, 2000 a near supermajority of 65.8% of Nevada voters 20 approved a ballot question amending the Nevada Constitution “to allow the 21

22 29 AA162.

23 30 AA162. 31 AA163. The Court asked, “in good conscience can you say that this is answering the mandate of the Constitution 24 which says you must provide a method by which people can acquire this? The State responded, “I did. It doesn’t say method, it says supply. There was already a supply here. They made it legal, people already have it.” AA163 (emphasis 25 supplied) The State’s allegation that people already have it is simply not true. There are many medical marijuana patients who have refused to go beyond the law and obtain a supply of medical marijuana from beyond Nevada’s borders. 26 32 Nevada medicinal marijuana patients are entitled to medicine that meets pharmaceutical grade standards. This would include United States Pharmacopia (USP) assurances that the product be in excess of 99% purity with no binders, fillers, 27 exicipents, dyes or unknown substances. Of particular concern with medical marijuana is the potential for mole spore contamination and adulteration with other narcotics. The federal government has its medical marijuana grown at the 28 University of Mississippi to avoid contamination. RA74-79.

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1 possession and use of a plant of the genus cannibus (marijuana) for the treatment of 2 certain illnesses upon advice of a physician, to require parental consent for such use 3 by minors, and to authorize appropriate methods of supply to patients authorized to 4 33 5 use it.” Chapter 453A represents the Legislature’s implementation of Article IV,

6 Sec. 38 of the Constitution of the State of Nevada.34 While the implementation statute 7 embodied in Chapter 453A was supposed to have provided access to medical 8 9 marijuana through the authorization of appropriate methods of supply to patients 10 authorized to use it, the reality of the situation is that the vague nature of terms used in 11 the statute, coupled with arbitrary enforcement have frustrated this constitutional 12 13 right. 14 To the extent that NRS 453A failed to implement the will of the people by 15 16 providing authorization of appropriate methods of supply – it is unconstitutional. To

17 the extent that NRS 453A criminalizes reasonable efforts to exercise that protected 18 19 33 National Conference of State Legislatures “Initiative and Referendum Legislature Database” 20 (http://ecom.ncsi.org/programs/legismgt/elect/initiative_search.cfm) Nevada is one of the Eighteen States that allows for initiated constitutional amendments. The process and requirements 21 for placing a proposed amendment before the people through an initiative process are so prohibitively difficult that the process is rarely used. The process is codified in Article 19 of the Nevada Constitution. Citizens of Nevada can use the 22 initiative process to propose a constitutional amendment. If the petition is sufficient, the amendment is placed on the next general ballot. Nevada is the only state in the country that requires voters to approve the issue in two successive elections before the amendment becomes a law. The language, description, arguments, question number must be the 23 same on both the ballots. If the question passes the second time, it becomes part of the Nevada Constitution upon certification of the election results. The State argues that will of the people in this process be ignored and that The 24 Constitution of the State of Nevada be disregarded. The State claims, “The referendum of the citizenry of the State of Nevada directed elected officials to draft legislation in 25 direct opposition to federal law. In fact it might be argued that the People in the State of Nevada were not authorized to amend the Nevada Constitution as it was amended.” AA78. 26 34 The exact wording of the applicable Constitutional Amendment is, “The Legislature shall provide by law for: (e) authorization of appropriate methods for supply of the plant to patients authorized to use it.” Contrary to the specific 27 wording of Article IV, Sec. 38 of the Nevada Constitution, NRS 453A did not “establish a method of distribution of medicinal marijuana,” as the legislative summary for Assembly Bill 453 recognized as the Legislature’s mandate. 28 AA104.

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1 constitutional right – it is unconstitutional. Failure to adequately warn of what was 2 criminal, as well as, criminalizing constitutionally protected behavior, are equally 3 offensive. Criminal statutes which lack sufficient definiteness and notice violate the 4 35 5 void- for- vagueness doctrine of the Due Process Clause. Vague criminal laws run

6 “afoul of the Due Process Clause because they fail to give adequate guidance to those 7 who would be law-abiding, to advise defendants of the nature of the offense which 8 9 they are charged, or to guide courts in trying those who are accused.”36 Men of 10 common intelligence cannot be required to guess at the meaning of a statute.37 11 The State recognizes that fair notice requirements of the United States and 12 13 Nevada Constitutions are intended to insure that “citizens will not have to speculate 14 about the meaning of a particular law, and will therefore have the ability to conform 15 38 16 their conduct to that law.” In this case, the fair notice requirement must be measured

17 upon the backdrop of a constitutional right to access to medical marijuana. In its 18 defense of NRS 453A, the State has argued that the challenged statute presents “a 19 20

21 35 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). 22 36 Musser v. Utah, 333 U.S. 95, 97 (1948). Where the Court repeated the oft quoted standards of this constitutional doctrine, "The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the 23 applicable tests to ascertain guilt." Id. at 97. "Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a 24 reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide 25 explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and 26 discriminatory applications." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). 27 37 Winters v. New York, 333 U.S. 507, 515-16(1948) 28 38 AOB at p.7, citing City of Las Vegas v. Eighth Judicial Dist. Ct., 118 Nev. 859, at 864, 59 P.3d. 447 (2002)

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1 distribution system that did not incorporate the traditional norms of free market 2 capitalism.”39 The vague term of “consideration,” as used in NRS453A is at the heart 3 of this argument. The term is not defined in the statute.40 4 5 “Delivery” within the meaning of the challenged statute contemplates a

6 “transfer.”41 Under the State’s paradigm, NRS 453A allows for charitable transfers, 7 including; “self-grow and charitable giving methods of supply.”42 This opinion is not 8 9 specifically supported the words of the statute. The State’s opinion is the product of 10 convoluted extrapolation. Is the State’s model offended when a caregiver receives gas 11 money or a stipend for their assistance in growing medical marijuana? Is it offended 12 13 for travel expenses to cross state lines to obtain the seeds necessary to grow medical 14 marijuana? What if patients or their charitable caregivers do not have access to land to 15 16 grow medical marijuana? Where are patients suffering from debilitating diseases

17 expected to find such charitable caregivers?43 Why does the Respondent’s model 18 of suggested non-mandatory donations offend the State’s suggested model of 19 44 20 “charitable giving methods of supply?” 21

22 39 AOB. At a hearing in this matter by the State hypothesized that medical marijuana patients could grow the marijuana and give the excess marijuana away through a networking system. However, the State also recognized that seeds were 23 not legally available within Nevada to grow medical marijuana so to combat this obstacle; the patient could cross state lines to get seeds and bring them back to Nevada. AA159-164. This suggestion would subject Nevada medical marijuana 24 patients to federal prosecution pursuant to 18 U.S.C. sec. 841. 40 “Delivery” is defined in the statute as “the actual, constructive, or attempted transfer from one person to another of a 25 controlled substance whether or not there is an agency relationship.” However, the word “consideration” is not defined within NRS 453A. 26 41 NRS 453A.060 as defined by NRS 453.051. 42 AOB at p.11. 27 43 In the District Court, the State suggested that social media might be an appropriate method of supply. In response to query by the Court, the prosecutor said; “people are well connected and have their message boards up..” AA163. 28 44 AOB at p.11.

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1 In finding NRS 453A unconstitutionally vague the Court found both the State’s 2 interpretation of the statute and the failure legislature’s failure to adequuately define 3 the term consideration to be troubling. The Court stated, “one must conclude that only 4 5 through the charity of others (or through a fallacy of a specific donation as in the

6 present cases) can one obtain the tolerated substance. It is absurd to suppose that from 7 an unspecified source “free” marijuana will be provided to those lawfully empowered 8 9 to receive it.”45 At the heart of Respondent’s constitutional challenges are the dual 10 concepts of “delivery” and “consideration,” as used within NRS 453A. Again both 11 terms must be viewed against the backdrop of a constitutional amendment which 12 13 protects access to medical marijuana. 14 The State fails to propose a definition for “consideration”46 as used in NRS 15 16 453A.300 (1) (F). The State expands the undefined concept of consideration even

17 further by including the qualifier “any” in their interpretation of the term 18 consideration. The vague statutory term of consideration was expanded in this case to 19 47 20 allow for the arbitrary prosecution of the Respondents.

21 In Hank, this Honorable Court was called upon to determine the meaning and 22

23 45 AA168-169. 24 46 The State opines that the right to exercise access to medical marijuana must be hidden away from public view; the state argued that “the court itself demonstrated the clarity of Chapter 453A when it noted “the reasonable conclusion 25 must be that any such transfer need occur in a private residence or secretly in some back alley.” AOB at p.10 citing Judge Mosley’s decision at AA168. 26 47 The State writes that, “Chapter 453A expressly prohibits individuals who deliver marijuana for any consideration from asserting the exemption as a defense to prosecution.” AOB at pp. 11-12. This is not true. The word any as emphasized by 27 the State, is not expressly contained in NRS 453A.300 (1) (F). Respondent’s model of access requesting non-mandatory suggested donations to provide for cooperative costs are not expressly addressed by the statute. Charitable consideration 28 was not specifically prohibited by the statute but it is by the State’s interpretation of the statute.

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1 definition of “executing a contract to kill” as presented by Nevada’s capital murder 2 statute.48 The Court first noted that, “Penal statutes should be so clear as to leave no 3 room for doubt as to the intention of the Legislature, and where a reasonable doubt 4 5 does exist as to whether the person charged with a violation of its provisions is within

6 the statute, that doubt must be resolved in favor of the individual.”49 In Hank, this 7 Court made the following distinction between “an agreed exchange” and 8 9 “consideration in law.” 10 It is true that NRS 200.030(1)(c) says “contract to kill” means “an 11 agreement with or without consideration, whereby one or more of the parties to the agreement commits murder.” Still, by this the 12 Legislature may quite possibly merely have meant to indicate that 13 “consideration,” in the full and traditional legal sense of that term, 14 need not be present. Thus negating the need for legal “consideration” would by no means necessarily foreclose possible 15 legislative intent to require a “quid pro quo” or agreed exchange, 16 which is the essence of an agreement contractual in character. The concepts are not identical and co-extensive. An agreed exchange is 17 not a consideration in law, unless it is both voluntary and lawful. Cf. 50 18 Gaston v. Drake, Nev. 175 (1879).

19 In this case, persons authorized to receive medical marijuana came together in a 20 cooperative relationship to obtain the medicine that they were constitutionally entitled 21 22 to receive.51 The undercover officer presented a valid Nevada medical marijuana 23

24 48 Sheriff Clark County v. Hank, 91 Nev. 57, 530 P.2d. 1191 (1975) 25 49 Hank, id, at 1193, citations omitted. This mandate stands in contrast to the State’s proposed standard of review that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” AOB at p.7 citing 26 State v. Hughes, ___ Nev. ____, 261 P.3d. 1067, 1069 (Nev. 2011). 50 Hank, id at 1194. 27 51 See Exhibit C, attached to Petition for Writ of Habeas Corpus, or in the Alternative, Motion to Dismiss, Nevada Secretary of State business entity search listing the dispensary at issue as a domestic non-profit co-operative corporation 28 without stock.

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1 registry card expressly agreed to the by-laws of the cooperative. The officer ostensibly 2 became part of the group lending his allowable amout of statutorily authorized 3 medicinal marijuana to the collective supply.52 The membership agreement to the 4 53 5 dispensary was detailed at length at the grand jury proceedings.

6 The membership agreement executed by the undercover officer included 7 express agreement to the following conditions; “I certify under penalty of perjury that 8 9 the information provided is true and accurate and I am not seeking membership for 10 any fraudulent purpose, … Sin-City Coop Incorporated members must be 18 years or 11 older, … I am a qualified patient or primary caregiver as defined under Nevada law 12 13 and, I have obtained a recommendation or approval from a physician currently 14 licensed to practice medicine in the State of Nevada to use medical marijuana to treat 15 16 serious illness, or, I have been designated as the primary caregiver of a qualified

17 patient to provide for that patient’s health and well being … I will not distribute 18 medicine received from Sin-City Co-Op Incorporated to any other caregiver … I will 19 20 not use the medical marijuana obtained from Sin City Co-Op Incorporated for non

21 medical purposes … I will not use medical marijuana in or near any Sin City Co-Op 22 Incorporated facilities or in a public place … members agree to abide by all 23 24 requirements and restrictions regarding medical cannabis as set forth in the Nevada 25 52 The distinction between the constitutional right mandating that the Legislature authorize an appropriate supply of 26 medical marijuana and the proscriptions of NRS 453A limiting the supply of medical marijuana a patient is authorized to possess are blurred in the State’s Opening Brief. The co-operative relationship entered into by the patients of the 27 dispensary was an attempt to reconcile their interpretation of Article IV, Sec. 38 of the Nevada Constitution and NRS 453A. 28 53 AA25-27.

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1 Revised Statutes 453A in addition to all local regulations … I authorize my 2 recommending physician to verify his or her recommendation or approval for the use 3 of medical marijuana … I authorize Sin City Co-Op Incorporated and its members to 4 5 process, store, possess, transport and donate medical marijuana for my medical needs

6 … I have read and understand the facility’s rules and guidelines and consent to joining 7 this cooperative … Members agree – not to operate vehicles or other mechanical 8 9 devices while medicated … I authorize Sin City Co-Op Incorporated to grow 10 medicine on my behalf and for the cooperative in accordance with all State and local 11 laws … At no time does Sin City Co-Op Incorporated participate in the sale of 12 13 marijuana… Donations are suggested but are in no way related to a sale price.”54 14 The undercover officer did not attempt to give an amount other than the 15 55 16 suggested donation. A grand juror asked why this was not done.

17 By a Juror: Q. Detective, was the theory ever put to a test 18 where the undercover officer that held a medical marijuana card said well, you know, I only have a couple of bucks and came back 19 in and see if they allowed him back in again, was that ever done?” 20 The Detective answered: A. We did not that and that’s a very good 21 question. In retrospect obviously it would have been beneficial. 22 What we were trying to avoid was to have our undercover 86’d because at the time we were continuing to make purchases in 23 that location and to have him not able to go back in the 24 premises would effectively end an ongoing investigation into 25

26 54 AA25. 55 The detective stated, “And our undercover would simply pay the amount, there wasn’t a negotiation process.” AA26, 27 at p.17 of the grand jury transcript. (“GJT”) The detective verified that Sin City Cooperative Incorporated was a registered Nevada business entity. It was registered as a domestic non-profit corporation without stock. AA26, at p. 20 28 GJT.

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1 that premises. However, in retrospect that would have potentially solved a very pressing problem.”56 (emphasis supplied) 2 3 As noted by the State, “the touchstone of the void for vagueness doctorine is to 4 insure that the Legislature has provided guidelines for enforcement in order to prevent 5 a standardless sweep that allows policeman, prosecutors, and juries to pursue their 6 57 7 personal predilections.”

8 Even though consideration is not defined in Chapter 453A, the State offered 9 their own definition of consideration before the grand jury. When a grand juror asked: 10 11 Q. Well, the man has to go buy all this stuff so he can legitimately charge what his 12 costs are plus overhead.” The lead detective responded” A. I see your point but again 13 14 it falls into the factor that you cannot operate this business with the understanding or 15 attempt to create a profit because that involves consideration”58 It was at that point 16 that the prosecutor offered his own definition of consideration: “I think we’re getting 17 18 messed up with profit and consideration. Profit is not consideration … Consideration

19 is the inducement to a contract, a valve given in return for performance or promise of 20 another for the purpose of making a contract. So it doesn’t matter if a person is 21 22 making a profit at all. The statute does not allow someone to charge or receive 23 something in exchange, whether that -it doesn’t matter if it covers the costs or not. 24

25 56 The failure of law enforcement to investigate the sincerity of Respondents’ charitable donation model essentially allowed for the stacking of multiple counts. The detective told the grand jury that the decision was made to simply give 26 the suggested donations so that they could keep returning to the co-operative to add more charges.This stacking would permit the police and prosecution the authority to potentially seek a life sentence. 27 57 AOB at p. 8 quoting City of Las Vegas, 118 Nev. at 866, 59 P.3d. at 482. 28 58 AA30, GJT p.33.

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1 You cannot receive something in exchange for the marijuana. That’s what 2 consideration means.”59 3 This definition, found nowhere in the statute, drove the prosecution of the 4 5 Respondents. This definition underscores the prohibition warned of in City of Las

6 Vegas. Policeman, prosecutors, and jurors should not be allowed to pursue their 7 personal predilications because the legislature has failed to provide appropriate 8 9 guidelines for enforcement. Nevada is unique in all of the Unites States in that the 10 right to access “appropriate methods of supply” of medical marijuana is imbedded as 11 a constitutional right. The challenged statute and the Respondent’s attempts to 12 13 conform their conduct within that challenged statute must be examined against the 14 protection of a constitutional right to access medical marijuana. NRS 453A has simply 15 16 created an institutional morass to frustrate that constitutional mandate.

17 The State argues that during the passage of NRS 453A the Legislature shifted 18 from state cultivation and State distribution to a self-grow plan of supply. This shift or 19 20 transition in emphasis or prohibition does not appear in the statute. There seems to

21 have been a Legislative shift at the last moment to take the State out of the business of 22 growing and/or supplying medical marijuana. The State argues that their charitable 23 24 model was left to provide for supply but the statute does not specifically address the 25 State’s interpretation that NRS 453A created “an incentive for charitable giving that 26 27 59 AA30, GJT pp. 35-36. The source of this legal instruction has not been revealed. The State failed to address an 28 appropriate definition of consideration in its Opening Brief. No definition of consideration is provided for in NRS 453A.

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60 1 the district court found so improbable.” 2 3 II. The question of whether Chapter 453 is unconstitutionally vague 4 should not be impacted by the Legislature’s alleged attempt to avoid 5 invalidation of the statute on the basis of federal preemption. 6 Throughout this prosecution, the State has attempted to justify the challenged 7 8 statute’s confused and unconstitutionally vague terms on the basis of legislative

9 avoidance of federal preemption. The State argues that, “Defendant fails to appreciate 10 the tight rope the law makers had to walk in drafting this legislation. The referendum 11 12 of the citizenry of the State of Nevada directed the elected officials to draft legislation 13 in direct opposition to federal law. In fact it might be argued tha the people in the 14 15 State of Nevada were not authorized to amend the Nevada Constitution as it was 16 amended.”61 This opinion is not supported by the votes on this matter or the remarks 17 of Assemblywoman Giunchigliani: 18 19 Assemblywoman Giunchigliani stated: I would remind everyone that AB 453 simply implements the will of the people. They spoke, not once but 20 twice, in this State, with more than 65.2 percent of the public supporting 21 it the second time around. In fact, out of the 42 Assembly seats in this body, in at least 34 of the seats, Question 9 received more votes than all 22 of us sitting here. Governor Guinn also received 223,892 votes and 23 Question 9 received 380,926 votes. I think the public knew very well

24 60 Whether or not the State’s charitable giving paradigm can be reasonably extracted from NRS 453A – was only part of 25 the difficulty facing the District Court. Apart from this model not being expressly approved or disapproved in the statute, the District Court properly determined that “the statutory scheme set out for the lawful distribution of medical marijuana 26 is either poorly contemplated or purposely construed to frustrate the implementation of constitutionally mandated access to the substance.” AA170. 27 61 AA78. The State argued to the District Court that, “In light of the preemption arguments and the potential commerce clause challenges it is clear that the legislature carefully crafted and restricted 453A in an attempt to avoid the 28 Preemption Doctorine and Commerce Clause.”

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1 what they were voting on and recognized that under extreme medical condtions they supported the issue of a registry card and allowing an 2 individual to have access to this. This is a states rights issue, which I 62 3 think Nevadans have long held dear.

4 In reality, once the decision was made that the State of Nevada would not 5 actually grow medical marijuana the resultant provisions and prohibitions to authorize 6 7 a supply became incomprehensible. Prohibitions were vaguely defined while

8 provisions of supply were left unclear. The adoption of a “don’t ask, don’t tell” policy 9 in regards to the source of medical marijuana cannot be reconciled with a due process 10 11 protection against vagueness.63 Don’t ask don’t tell and criminal prohibitions are not 12 compatible concepts. 13 14 Respondents respectfully submit that the Legislature did not act out of fear of 15 federal preemption as argued by the State. Rather, when the sudden decision was 16 made to not involve the State in actual growing or distribution of medical marijuana, 17 18 NRS453A was left incomplete and vague. The State argues that while Assembly Bill

19 453 was still being drafted Oakland Cannabis Buyer’s Coop was being litigated and 20 this pending litigation had impact on the substance of NRS453A.64 This is not correct. 21 22 The State argues extensively that the pendency of this decision coupled with the

23 62 Assmeblywoman Giunchigliani eventually conceded that “the legislation did not address distribution: the patients 24 would continue obtaining marijuana by whatever means they had in the past.” 71st Session minutes of the April 10, 2001 meeting of the Committee on the Judiciary, Assembly Bill 453. Unfortunately, these observations sent confusing 25 messages to the public when the the State simultaneously created a state sponsored registry system that would ostensibly lend approval for a charitable non-proft co-operative paradigm as attempted by these Respondents. 26 63 AOB at p.18 quoting statement of Assemblywoman Giunchigliani. 27 64 OAB at 14 citing United States v. Oakland Cannabis Buyer’s Co-op, 532 U.S. 483 (2001). 28

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1 possibility of potential federal preemption caused the Legislature to draft the 2 challenged statute in its current form.65 3 Possible federal preemption does not provide legal justification or excuse for 4 5 enforcement of an unconstitutionally vague criminal statute. Moreover, the

6 Legislature did not draft NRS 453A with the concern that federal preemption or the 7 decision in Oakland Cannabis should determine the context or content of Chapter 453. 8 9 Assemblywoman Giunchigliani specifically requested a legal opinion from the 10 Legislative Counsel Bureau, “to explain the effect of the recent decision of the United 11 States Supreme Court in United States v. Oakland Cannabis Buyers’ Co-Op, No. 00- 12 13 151, slip op (May 14, 2001) on Senate Bill No. 545 and Assembly Bill No. 453 14 (“A.B. 453”) of the 2001 Legislative Session.”66 15 16 Contrary to the State’s argument, the Legislature recognized that the decision

17 would have little or no effect on the proposed legislation: 18 In summary, it is the opinion of this office that the decision of the 19 Supreme Court in Oakland Cannabis is a decision of limited scope 20 that addresses only one issue: whether the defense of medical necessity may be raised in opposition to charges of the violation of 21 the federal Controlled Substances Act. In that decision, the Supreme 22

23 65 The State argues that “the district court failed to recognize that the Nevada Legislature carefully executed the will of the people by an enacting “appropriate methods of supply” without frustrating the will of the people by passing a statute 24 predestinded for invalidation.” However, the State fails to cite a single instance where a state medical marijuana law was invalidated by application of the federal preemption doctorine. In fact, on November 6, 2012 Colorado and Washington 25 became the first states to legalize the sale and possession of cannabis for recreational use since the marijuana Tax Act of 1937 when they passed Colorado Amendment 64 and Washington Initiative 502. Both provide for commercial 26 cultivation and sales, subject to regulation and taxes. http:///www.sfgate.com/business/bloomerg/article/Washington.Colorado-allow-recreational-use-of- 27 marijuana4016776.pnp.

28 66 AA______.

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1 Court did not consider, nor did it decide, the propriety or legality of the decision of a state to exempt certain persons from prosecution 2 under the state’s drug laws for the medical use of marijuana. It is the 3 further opion of this office that Oakland Cannabis has no effect on S.B. 545, because S.B. 545 proposes only to authorize certain 4 research programs that are authorized in accordance with an 5 exception to the Controlled Substances Act. Finally, it is the opinion of this office that the effect of Oakland Cannabis on 6 A.B. 453 is only that persons who would be exempt from state 7 prosecution pursuant to the provisions of that bill may not, if prosecuted by the Federal Government pursuant to the 8 Controlled Substances Act, be able to assert a defense of 9 medical necessity. The decision does not otherwise call into question the validity or legality of A.B. 453.67 (emphasis 10 supplied). 11 The Legislature’s decision to abandon the plan to have the State of 12 13 Nevada grow and distribute marijuana and to adopt another plan did not 14 translate into a cogent and enforceable implementation statute. This failure 15 16 was recognized by Assemlywoman Giunchigliani when she stated, “the

17 legislation did not address distribution: the patients would continue obtaining 18 marijuana by whatever means they had in the past.”68 The end result was a 19 20 vague criminal statute that would allow for a life sentence simply because the

21 Respondents were attempting to interpret their constitutional right to access 22

24 67 AA______. 68 AOB at p.18. The State cited in support of this position that “the committee members also noted that seeds for 25 growing ones own marijuana could be obtained through legitimate sites on the internet.” AOB at fn. 5. This suggestion would specifically violate 18 U.S.C. 841 (h). It is a federal crime to deliver, distribute, or dispense a controlled substance 26 by means of the internet. As noted in Respondents pleadings; “there is no legal method to obtain seeds in Nevada and land used to grow marijuana is not exempt from federal seizure or forfeiture. Patients that live on leased or rented 27 properties would be subject to eviction. The overwhelming percentages of sick and immobile citizens that have a constitutional right to access medical marijuana are simply incapable of producing pharmaceutical grade medical 28 marijuana. AA103.

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1 medical marijuana. 2 3 CONCLUSION 4 Based upon the foregoing, Respondent’s respectfully pray that the district

5 court’s decision dismissing their charges be affirmed. 6

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1 CERTIFICATE OF MAILING 2 3 I hereby certify and affirm that this document was filed electronically with the 4 Nevada Supreme Court on the 17th day of December, 2012. Electronic Service of the 5 foregoing document shall be made in accordance with the Master Service List as 6 7 follows:

8 9 STEVEN OWENS Clark County Chief Deputy District Attorney 10

11 CATHERINE CORTEZ MASTO Nevada Attorney General 12

13 14 /s/ Erika W. Magana 15 ______16 On behalf of TURCO & DRASKOVICH, LLP.

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1 CERTIFICATION OF COMPLIANCE 2 3 1. I hereby certify that this brief complies with the formatting requirements of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type 4 style requirements of NRAP 32(a)(6) because this brief has been prepared in 5 a proportionally spaced typeface using Microsoft Word 2003 in 14 point font of the Times New Roman style. 6 7 2. I further certify that this brief complies with the page or type-volume limitations of NRAP 32(a)(7) because, excluding the parts of the brief 8 exempted by NRAP 32(a)(7)(C), it is either proportionately spaced, has a 9 typeface of 14 points of more and contains 6,180 words or does not exceed 30 pages. 10

11 3. Finally, I hereby certify that I have read this appellant reply brief, and to the best of my knowledge, information and belief, it is not frivolous or 12 interposed for any improper purpose. I further certify that this brief 13 complies with all applicable Nevada Rules of Appellate Procedure, in 14 particular, NRAP 28(e)(1), which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page 15 and volume number, if any, of the transcript or appendix where the matter 16 relied on is to be found. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the 17 requirements of Nevada Rules of Appellate Procedure. 18 19 Dated this 17th day of December, 2012. 20 21 By /s/ Robert M. Draskovich ROBERT M. DRASKOVICH, ESQ. 22 Nevada Bar No. 6275 23 JOHN MILLION TURCO. ESQ. Nevada Bar No. 6152 24 815 S. Casino Center Blvd. 25 Las Vegas, Nevada 89101 26 Telephone: (702) 474-4222 Attorneys for Respondents 27 28

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