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Barisone Report Hostile to Marijuana Initiative
At the July 25 City Council meeting, John Barisone will be presenting the following hostile report on the "tax and regulate" local marijuana initiative.
July 6, 2006
TO: Mayor Mathews; City Councilmembers
FROM: John G. Barisone, City Attorney
RE: Legality of Adult Marijuana Criminal Offenses – Lowest Law Enforcement Priority Policy Initiative
On May 23, 2006, the County Elections Department certified the Adult Marijuana Criminal Offenses – Lowest Law Enforcement Priority Initiative Petition as sufficient to qualify for the November 2006 ballot. At the June 13, 2006 City Council Meeting, the City Council, pursuant to Elections Code section 9212, referred the initiative to the City Attorney’s Office for a report on its legality.
To the extent the City Attorney’s Office determined any portions of the initiative were potentially invalid, the City Council directed staff to determine which provisions of the initiative may be retained as valid. The City Council also directed the City Attorney’s Office to present the Council with options for having a Court confirm the accuracy of the City Attorney’s opinion on these matters.
The initiative proposes an ordinance whereby the City declares that law enforcement activity relating to adult marijuana offenses in the City of Santa Cruz shall be the City’s lowest law enforcement priority, with the exception of: (a) distribution or sale of marijuana to minors; (b) distribution, sale, cultivation, or use of marijuana on public property; and (c) driving under the influence.
Apart from this provision of the initiative which specifies these crimes that are not within the ambit of "adult marijuana offenses," the term "adult marijuana offenses" is not otherwise defined, and therefore, presumably includes any other criminal activity related to the possession, use, cultivation, or transportation of marijuana for any purpose.
The initiative then directs all Santa Cruz law enforcement officers, including the City’s police officers, to give priority to all other law enforcement activity. Pursuant to Section 9.84.050 of the initiative, "law enforcement activities relating to adult marijuana offenses" includes, but is not limited to, "investigation, citation, arrest, seizure of property, or providing assistance to the prosecution of adult marijuana offenses."
Assuming that law enforcement activity (this term is not defined in the initiative) includes crime prevention activity such as patrolling the City, the initiative would arguably preclude all covered marijuana law enforcement activity in the City of Santa Cruz when that activity is undertaken by adults (defined in the ordinance as persons age 18 or older). A police officer while on duty will always be able to engage in some type of law enforcement activity other than the enforcement of marijuana-related laws and, hence, any such criminal marijuana enforcement would in all likelihood constitute a violation of the ordinance.
The initiative would also:
∑ Require the City to apply this lowest law enforcement policy to the Police Department’s cooperation with state or federal agents relative to activity that may entail arrests, citations, investigations, prosecutions, or property seizures in connection with covered adult marijuana offenses.
∑ Prohibit Santa Cruz law enforcement officers and other City employees from accepting or renewing formal deputization or commissioning by a federal law enforcement agency if such deputization or commissioning will include investigating, citing, arresting, or seizing property from adults for covered marijuana offenses.
∑ Prohibit the City from accepting any federal funding that would be used to investigate, cite, arrest, prosecute, or seize property form adults for any marijuana offenses.
∑ Create a Community Oversight Committee to oversee the proposed ordinance’s implementation. The Committee would be comprised of City residents appointed by the City Council. In addition, the Santa Cruz Police Department and the Santa Cruz County District Attorney’s Office would each be required to send a representative to the meetings as a non-voting liaison.
The Committee’s responsibilities would include timely implementation of the Lowest Law Enforcement Priority Policy; designing a supplemental report form for Santa Cruz law enforcement officers for use in reporting all adult marijuana arrests, citations, and property seizures, and all instances of officers assisting in state or federal arrests, citations, and property seizures for any adult marijuana offenses in the City; and reporting semi-annually to the City Council on the implementation of the ordinance.
∑ Declare that it is the policy of the City to support policies to tax and regulate marijuana for adults.
∑ Require the City Clerk to submit letters on an annual basis to the City’s Congressional representative, California’s U.S. Senators, the City’s California Senators and Assembly Members, the California Governor, and the President of the United States stating, "The citizens of the city of Santa Cruz have passed an initiative to deprioritize marijuana offenses and request that the federal and California state governments take immediate steps to tax and regulate marijuana use, cultivation, and distribution and to authorize state and local communities to do the same."
The remedy for violation of the proposed ordinance would be a writ of mandate to compel compliance with its requirements. Under the initiative, such an action could be brought by any registered voter in the City.
First and foremost, it must be borne in mind that the people’s ability to adopt an ordinance by way of initiative is co-extensive with that of the City Council. In other words, the people, by way of initiative, have no greater authority to legislate than does the City Council and therefore they must do so within the same legal constraints under which the City Council itself legislates.
One of the legal constraints that must be observed by both the City Council and citizens who would enact ordinances by way of initiative is the prohibition against enacting ordinances which conflict with the City Charter or which are preempted by state and/or federal law. Here, the initiative provides mandatory direction to the City’s Police Department with regard to that Department’s daily administrative, and most common, functions i.e. the performance of law enforcement duties which are imposed by state law. Specifically Section 9.84.050 states:
"Santa Cruz law enforcement officers shall make law enforcement activity relating to adult marijuana offenses their lowest law enforcement priority. Law enforcement activities relating to adult marijuana offenses include, but are not limited to, investigation, citation, arrest, seizure of property, or providing assistance to the prosecution of adult marijuana offenses."
The City Charter, at Section 809, specifies that:
"Except for the purpose of inquiry, the Council and its members shall deal with administrative services solely through the City Manager, and neither the Council nor any member thereof shall give orders to any City officer, either publicly or privately. Any Councilmember who violates this provision, or votes for a resolution or ordinance in violation hereof, shall be guilty of a misdemeanor and upon conviction thereof shall cease to be a Councilmember."
Given the foregoing, the proposed ordinance (Section 9.84.050 in particular), if adopted, would most likely violate the City’s Charter.
In addition, several provisions of the ordinance, if adopted, would most likely be preempted by state law. The City, including the City’s electorate, cannot adopt or enforce ordinances that conflict with laws relating to matters of statewide concern. The California Uniform Controlled Substances Act (the "Act") prohibits non-medical use, possession, cultivation and distribution of cannabis.
This Act and the statutes of which it is comprised have statewide application. The ordinance, by requiring Santa Cruz Police Officers to give priority to all other law enforcement activities before enforcing marijuana-related laws [Section 9.84.050(1)], appears to conflict with the Act: it effectively purports to partially nullify the provisions of the Act pertaining to marijuana offenses.
Moreover, police officers, as guardians of the peace and security of the community, are obligated to enforce all laws until and unless the laws are declared unconstitutional. Accordingly, they are duty bound to prevent the commission of crime, assist in its detection, and disclose all information known to them which may lead to the apprehension and punishment of those who have transgressed the law, including the California Uniform Controlled Substances Act.
To enable police officers to fulfill their duties, the California Penal Code confers upon peace officers throughout the State of California, including Santa Cruz police officers, the discretion to enforce all criminal statutes enacted by the State legislature and does not purport to limit that discretion by dictating with what priority a police officer must conduct his or her law enforcement activity when presented with two or more enforcement options at or near the same point in time.
In contrast, for example, this ordinance, applied literally, would require a Santa Cruz police officer on Pacific Avenue foot patrol to confront someone littering, rather than an adult he or she sees at or about the same time offering packages of marijuana for sale to other adults on a nearby privately owned parking lot. If challenged, a judge would most likely conclude on the basis of examples such as this that the ordinance is preempted by state law and accordingly void.
In addition, preemption principles apply to federal statutes. Accordingly, to the extent that the initiative purports to authorize activity that is proscribed by the Federal Controlled Substances Act 21 U.S.C. §§801 et seq., it is similarly subject to a preemption challenge on this basis.
A review of the ordinance reveals some additional legal problems briefly summarized as follows:
∑ The ordinance prohibits police officers from cooperating with state or federal agents relative to the arrest, citation, investigation, prosecution, or enforcement of marijuana-related crimes if they can be devoting their time to other law enforcement activity. (See Initiative at Section 9.84.050(3)).
However, California Penal Code section 830.65 authorizes the California Attorney General to appoint regularly employed City police officers to assist with regional criminal marijuana-related investigations and tactical operations. A police officer would therefore violate the ordinance by complying with an Attorney General order for assistance or a similar order by any other state or federal official statutorily entitled to enlist the assistance of police officers for operations of this type.
Similarly, the Santa Cruz County District Attorney’s Office is authorized to utilize the subpoena process to compel witness (including Santa Cruz police officer) cooperation in criminal prosecutions, including adult marijuana offenses. A police officer would violate the ordinance by complying with a subpoena relating to adult marijuana-related crimes. (See Initiative at Sections 9.84.050(3), and 9.84.080). However, the officer, if subpoenaed to do so by the Santa Cruz County District Attorney’s Office, would violate state law if, in order to obey the ordinance, he or she disobeys the subpoena.
∑ Section 9.84.060(1) of the ordinance calls for the creation of a voluntary "Community Oversight Committee" to be comprised of Councilmember-appointed City residents and directs that "...the Santa Cruz County District Attorney’s office shall ... send a representative as a non-voting liaison to the [Community Oversight Committee] meetings." The City has no authority to give direction to the Santa Cruz County District Attorney.
∑ Section 9.84.060(3) of the ordinance mandates that Santa Cruz law enforcement officers shall submit to the Community Oversight Committee "supplemental reports," on forms promulgated by the Committee, "...within seven calendar days after each adult marijuana arrest, citation, or property seizure, or instance of assisting in a state or federal arrest, citation, or property seizure for any adult marijuana offense in the City of Santa Cruz." Per Section 9.84.080 of the ordinance, "All sections of this Chapter are mandatory."
Therefore, a police officer’s failure to submit timely reports to the Community Oversight Committee as called for by the ordinance (a legally questionable mandate given the City Charter’s "no interference" clause discussed above) would subject the officer to civil liability pursuant to Section 9.84.080 of the proposed ordinance. In addition, under the same section, Santa Cruz police officers would be subject to citizen lawsuits should they exercise their authority granted by state law to enforce California statutes pertaining to the possession, use, cultivation or transportation of marijuana or should they assist other law enforcement agencies in connection with crimes in this category.
Valid Provisions and Suggestions
The ordinance contains a number of provisions which, if severed from the defective provisions discussed above, would result in an ordinance which would most likely pose no legal difficulties. For example, the City Council, and hence the people by way of initiative, could make the factual findings set forth in Section 9.84.030, which serve as the basis for the ordinance. These include such findings as "The federal government’s war on drugs has failed" and "Otherwise law-abiding adults are being arrested and imprisoned for non-violent marijuana offenses, which is clogging courts and jails in California."
Section 9.84.050, in part, provides that "The City of Santa Cruz shall not accept any federal funding that would be used to investigate, cite, arrest, prosecute, or seize property from adults for marijuana offenses." Similarly, Section 9.84.070 states that it shall be the policy of the City of Santa Cruz to support measures to tax and regulate marijuana for adults. Because it is within the province of the City Council to make fiscal policy decisions of this type, an initiative which legislates the same policy would be permissible.
Other jurisdictions have endeavored to address the substantive concerns relative to the expenditure of law enforcement resources on marijuana law enforcement that prompted this initiative. For example, the City of West Hollywood adopted a formal resolution, which reflects the law enforcement policies that prompted the initiative, but which did not legislate mandates that make the initiative legally suspect. The West Hollywood resolution (a) declares that the city does not target private adult marijuana offenses and (b) directs the Public Safety Commission to review narcotics-related law enforcement statistics annually to ascertain compliance with the city policy and to inform policy makers of enforcement efforts regarding enforcement of all narcotics offenses in order to assure that enforcement is consistent with the city’s policy goals in this area. A copy of the resolution adopted by the West Hollywood City Council is attached.
Verifying City Attorney’s Opinion
The City Council has the following options to confirm or refute the City Attorney’s opinion as to the legality of the initiative’s provisions:
1) If the initiative is believed to be unconstitutional, the City Attorney may refuse to prepare the ballot and summary and then seek a declaration as to the constitutionality of the proposed initiative. See Jahr v. Casebeer (1999) 70 Cal. App. 4th 1250. Inasmuch as our office has already prepared the Ballot Title and Summary for the initiative, this option is not available at this time.
2) The City Council may refuse to place the measure on the ballot. The initiative proponents may then file a mandamus action, and the City defends the action. The court may uphold the refusal, [see Citizens for Responsible Behavior v. Sup. Ct. (1991) 1 Cal. App. 4th 1013; City of Irvine v. Irvine Citizens Against Development (1994) 25 Cal. App. 4th 868], or order the measure placed on the ballot, subject to a later (separate) suit after the election if the measure is adopted. However, this method was repudiated in Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal. App. 4th 141.
3) The City Council may place the measure on the ballot and direct the City Attorney to file an action to remove the measure from the ballot and seek a declaration as to the validity of the proposed initiative. See Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal. App. 4th 141; City of Atascadero v. Daly (1982) 135 Cal. App. 3d 466; Yost v. Thomas (1984) 36 Cal. 3d 561.
4) The City may file a post-election action seeking a judicial determination of the validity of the measure. In City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal. App. 4th 465. "Court challenges both preelection and postadoption have been held to be appropriate." Id. at 482 (citing City of Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 874, 30 Cal.Rptr.2d 797).
5) The City Council may decide not to test the City Attorney’s opinion regarding the legality of the initiative. If the City Council does not direct the City Attorney to file a pre- or post-election action testing the legality of the initiative and the measure is adopted, the City (and the City Attorney) may be required to defend the validity of the measure (or retain counsel to do so). See Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal. 3d 511, 514 n.3. Please note however, that the notion that the City has a duty to defend the validity of an initiative measure passed by its electorate has been questioned. See City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 al. App. 4th 465.
6) We had initially speculated that a validation lawsuit might be appropriate to obtain a judicial determination as to the legality of the initiative; however, our research has now revealed that a validation action does not appear to be available in this context. A validation action is an action, brought by a public agency, to determine whether its financing commitments are valid, legal, and binding. Friedland v. City of Long Beach (1998) 62 Cal. App. 4th 835, 838. Since this initiative does not implicate City financial commitments, a validation lawsuit is not an option in this instance.
I trust the foregoing is responsive to the City Council’s June 13, 2006 request. If the Mayor or Councilmembers have questions, please call.
John G. Barisone