Idaho, Hailey

[palmspringsbum]

<table class=posttable align=right width=200><tr><td class=postcell><img class=postimg src=bin/keirn_don.jpg></tr></td><tr><td class=postcell><span class=postbold>Hailey City Councilman Don Keirn questions whether the city should form an oversight committee to ensure implementation of approved marijuana initiatives. Hailey City Attorney Ned Williamson addresses the council. </span></td></tr></table>
Hailey delays decision on pot initiatives

The Idaho Mountain Express
by TERRY SMITH
December 26, 2007


The Hailey City Council will scratch its collective head a little longer over three sticky marijuana initiatives approved by voters in November.

"This is such a unique situation that I feel comfortable for you to take your time in dealing with it," Hailey City Attorney Ned Williamson told the council Thursday evening after discussing a report on the initiatives from the Idaho Attorney General's Office.

The report identifies three legal conflicts with the initiatives. One, marijuana is illegal in Idaho and cities do not have the authority to override state law; two, provisions of the initiatives that require city officials to lobby for reform of marijuana laws violate constitutional free speech rights; and three, the initiative that makes enforcement of marijuana laws the lowest police priority inappropriately meddles with administrative matters.

"The observations contained in this letter identify the clearly unlawful provisions of these initiatives," states the report, signed by Deputy Attorney General Mitchell E. Toryanski and dated Dec. 20. "In addition, there are other issues, some of a constitutional nature, that will be problematic if these initiatives are enforced."

Williamson told the council that he "literally just got this before the meeting."

"The bottom line is that they (the attorney general's office) conclude that major issues of the provisions are illegal," he said.

Hailey voters approved three controversial marijuana or hemp initiatives in the Nov. 6 city election. One would legalize medical use of marijuana, a second would legalize the production of industrial hemp and a third would make enforcement of marijuana laws the city's lowest police priority.

Based on the attorney general's report, Williamson told the council that it now has three choices. It can either start litigation over the initiatives, repeal them or amend them.

Williamson said that if the provisions the attorney general's office determined to be invalid are removed from the initiatives, then all that's left are some policy statements and the establishment of a Community Oversight Committee.

All three of the initiatives provided for the establishment of a Community Oversight Committee to iron out the details of implementation, but Williamson said the committee could also be used to make recommendations to the council or even to advocate stricter marijuana laws in the city.

Councilman Don Keirn said that establishing the committee didn't seem like a good idea.

"If everything else is illegal, what the hell are they going to talk about?" Keirn asked. "I don't think anybody's going to want to sit on a committee that's going nowhere. I go around and talk to people and they say, 'Why would I want to be on that stupid thing.'"

The council decided to table the issue until its next meeting, in early January 2008.

[palmspringsbum]

AG invalidates Hailey marijuana initiatives

SunValleyOnline
By Gary Stivers
Thursday, December 27, 2007

The Hailey City Council last Thursday decided to again put off deciding how to react to three voter-approved initiatives which ordered city officials to legalize doctor-prescribed marijuana use, cultivation of industrial hemp and to make enforcement of state and federal marijuana prohibition the lowest priority of the Hailey Police Department.

Council and mayor agreed to await the arrival of newly-elected Councilman Fritz Haemmerle in January before making a law which he'll have to live with.

City attorney Ned Williamson said Deputy Idaho Attorney General Mitchell Toryanski found three significant legal problems with the initiatives voters approved on November 6.

"None of this surprises me in the least," Williamson, a former Blaine County Prosecutor, began. "There are at least three issues, three problems with the initiatives."

Williamson reviewed Toryanski's three issues –legal conflict, free speech and the constitutional separation of cities' powers.


<span class=postbigbold>Free speech</span>

"The provision in the initiatives that require you guys to advocate for changes in law that violate your freedom of speech and freedom of political discretion," Williamson said, referring to the requirement imposed on city officials to attempt to persuade officials in other cities, the county and anyone else to promote legal use of marijuana.

Toryanski says in a brief, "The Idaho Constitution guarantees that '[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty. The right to free speech includes the right not to speak.' "


<span class=postbigbold>Legislation and Administration</span>

Williamson also noted the Idaho Constitution makes clear distinctions between cities' authority in legislation and applying or administering legislation.

Toryanski said the Idaho Supreme Court held in City of Boise v. Keep the Commandments Coalition that "while subjects of a legislative nature were allowable for local initiatives, subjects of an administrative nature were not."

City police enforce or apply city laws, they don't make them.


<span class=postbigbold>Legal conflicts</span>

Williamson said Toryanski showed two ways a local regulation –like the initiatives voters passed last month- may make and enforce any law on any subject so long as it doesn't conflict with the general laws, i.e. the Constitution.

1. The local regulation may be in direct conflict by "expressly allowing what the state disallows and vice versa;" and

2. A conflict may be implied where the state has fully occupied or preempted a particular area of regulation to the exclusion of local governmental entities. The doctrine of implied preemption applies when "the state has acted in the area in such a pervasive manner that it must be assumed that it intended to occupy the entire field of regulation."

Toryanski said provisions of initiatives 1 and 2 –medical marijuana and legalization of hemp cultivation- immunize persons from prosecution and allows what the state disallows and is outside the power of any city to enact, so no matter what kind of initiative voters may approve, state law trumps local law every time.

"The bottom line is that major provisions of the initiatives are illegal and are invalid," Williamson said. "It coincides with what I said in the past, and we have to decide how to proceed."

Williamson said the city can choose between litigating, repealing or amending the initiatives. He found nothing illegal in creating the oversight committee, since nothing forbids it.

"It's my view that that's what's left of the ordinances when you remove the illegal provisions."


<span class=postbigbold>Council, mayor respond</span>

City leaders discussed the initiatives briefly, but without Councilwoman Carol Brown, who as a Forest Service employee, is forbidden to publicly discuss anything violating federal law.

Mayor Susan McBryant asked Williamson whether city leaders had any deadline for action. Williamson said the requirement to enact an oversight committee is all that survives of the ordinances, but added he wouldn't hurry.

"This is such a unique situation, I feel very comfortable with you guys taking your time trying to figure out how to deal with it," Williamson said.

McBryant said she'd rather not act with only half of her council at the table.

With Councilwoman Martha Burke away, the two councilors remaining –Don Keirn and Rick Davis – weren't in much of a hurry.

"I've got a question on that committee," Keirn said. "Since everything else is illegal, what the hell are they going to talk about?"

"They can talk about the various provisions and make recommendation to you whether we should… I guess they can advocate changes, if they like…"

"Everybody needs another committee going nowhere," Keirn mused darkly.

Councilman and Mayor-elect Rick Davis wondered about naming members to the committee.

"I'd want at least three out of the four council people present –those who can participate in the discussion- before a decision is made," Davis said.

McBryant noted incoming Councilman-elect Fritz Haemmerle will also be affected by the city's decision. Williamson offered to summarize the attorney general's decision for Haemmerle, though as a former Blaine County Prosecutor, he's likely to be aware of the AG's position on the matter.

For anyone interested in reading the full text of Deputy AG Toryanski's opinion, the file in .pdf form can be found here.

The upshot appears to be that the Liberty Lobby sold Hailey voters an erroneous bill of goods in initiative language which violates state law, something Idaho cities aren't allowed to do.

[palmspringsbum]

Attorney tells Hailey to slash marijuana reforms

<span class=postbigbold>Legality of drug would be diminished</span>

The Times-News
By Cassidy Friedman
Times-News writer
January 17, 2008


Strip the teeth from three Hailey marijuana reform initiatives - right down to the gums.

That's what Hailey City Attorney Ned Williamson proposed Monday night to a city council that has already voiced considerable reluctance about the initiatives passed by voters in November.

In his presentation that ran late into the night, Williamson outlined his dramatic changes. He cut out making marijuana legal. He rendered impotent a committee charged with making marijuana Hailey police's lowest priority. That left policy statements and a committee.

"I kind of figured something like that was coming," said Ryan Davidson, who petitioned voters to sign his initiatives. "I think it's completely inappropriate. They didn't even try to make any of the initiatives work. Their claims of a lot of them (the initiatives' components) being invalid are, from a legal standpoint, just untrue."

The council has yet to fully respond and plans to discuss the recommended changes on Jan. 28.

But council members have already voiced significant concern that the initiatives would embroil the city in costly legal battles with the state, might violate their own First Amendment rights and force a city council woman to choose between her day job with the U.S. Forest Service and her elected post.

The three initiatives would legalize industrial hemp, decriminalize medicinal marijuana, and make enforcing marijuana laws the city's lowest priority. Davidson said he hoped the city government would wage a stronger fight on behalf of voters. He notes voters in both Denver and Missoula, Mont., recently passed similar initiatives making enforcing marijuana their cities' lowest police priority.

This November in Hailey, only 40 percent of voters went to the polls. Williamson said no law requires Hailey council to accept voter initiatives.

"There is nothing in the state Constitution or state statutes that would prohibit the City Council from amending or appealing initiative ordinances," Williamson said.

The Hailey Medical Marijuana Act would create an ordinance legalizing use and possession of 35 grams for medicinal purposes. Williamson suggested deleting a provision that would legalize medical marijuana and institute the process through a community oversight commission.

The Hailey Lowest Police Priority Act would create a Community Oversight Committee capable of making Hailey police officers ease up on pot offenses. Williamson's draft steals any power the committee might have to control law enforcement crack downs on marijuana offenses.

He recommended deleting requirements in both of those acts and a third act, the Hailey Industrial Hemp Act, for government officials to advocate changing marijuana or hemp laws.

Williamson said his redactions still leave two primary components of the initiatives standing.

"I think all three initiatives would still contain … a policy statement," he said. "This is my recommendation on provisions that I feel are illegal. I am not making any recommendations on policy matters. I am just making recommendations on legal language that I feel needs to be corrected.

"The other thing that is left over is the establishment of the oversight committee, which can meet and make recommendations to the city council."

<hr class=postrule><center><small>Cassidy Friedman can be reached at 735-3241 or cfriedman@magicvalley.com</small</center>

[palmspringsbum]

Hailey will sue Hailey over pot initiatives

Sun Valley Online
By Gary Stivers, Heather Dawson and Ned Williamson
Tuesday, January 29, 2008


The Hailey City Council's discussion of the voter-adopted initiatives, the Hailey Industrial Hemp Act, the Hailey Lowest Police Priority Act and the Hailey Medical Marijuana Act, took a new turn following a discussion during the regular meeting of the Hailey City Council on Monday, January 28. The Hailey City Council has been discussing the voter-adopted initiatives across the last several meetings. Several legal issues with the initiatives have been identified by the Hailey city attorney Ned Williamson and the Idaho Attorney General’s Office. To be compliant with state and federal law, City Attorney Ned Williamson advised the city council that the initiatives could be amended, repealed or litigated.

At the conclusion of Monday's meeting, Mayor Rick Davis announced that he intends to file a complaint with Idaho's Fifth District Court.

"In regard to the marijuana issues, I have decided to sue the City of Hailey as the plaintiff, so we can get a legal court determination on the marijuana issues," Davis announced after a 24-minute executive session called at Williamson's request. "If [the voter-approved ordinances] are legal, we'll enforce them. If they're not, we'll move on. At least we'll have a court of law showing us the path we need to follow."

The lawsuit would seek court review of the ordinances and a judgment relative to their legality in whole and in part. Davis said that the resulting declaratory judgment complaint would be the document by which Hailey would guide its implementation or potential future amendment of the ordinances.

"The five elected officials all have duties underneath all three [of the voters' ordinances] ordinances to do things," Williamson began. "The Chief of Police has duties, the city prosecutor has duties under the ordinances, so they have status to question the legality of the ordinances."

Davis announced that he will be joined as a plaintiff by Hailey City Councilman Don Keirn and Hailey Police Chief Jeff Gunter. The mayor, city council members and the chief of police are required by the ordinances to administer and implement the initiatives.

City Councilwoman Carol Brown, a federal employee with the Sawtooth National Forest, stepped down from the entire discussion as it could associate her with marijuana, a violation of federal law which could cost Brown her career. Thus Brown will also not be able to participate in the lawsuit.


<span class=postbigbold>The main points of consideration</span>

The issues with the initiatives identified in city leaders' discussions include:

(1) The Idaho Constitution provides that cities can enact and enforce laws that are not in conflict with the general laws of the State of Idaho. The Hailey Medical Marijuana Act purports to legalize the use and possession of 35 grams of marijuana for medicinal purposes. This act conflicts with state and federal law and in such a circumstance, the courts have held that a local ordinance is invalid.

(2) All three laws require the City of Hailey and its officers to advocate for changes in marijuana laws, which potentially impacts an individual’s first amendment rights of freedom of speech and political expression.

(3) Idaho prohibits adoption of legislation that is administrative in nature. The Hailey Lowest Police Priority Act potentially legislates the administration of the Hailey Police Department. For example, this act requires the creation of a Community Oversight Committee which is empowered to address grievances about police officers, to discipline police officers, and to request police reports and other information that would be confidential under the public records law. In addition, this act impacts the ability of Hailey police officers to be deputized under federal law and reduces the ability of the Hailey Police Department to receive federal funds for drug enforcement purposes.

(4) Under the Hailey Medical Marijuana Act, the law constrains the city prosecutor’s ability to prosecute marijuana offences.
The requirement to advocate for changes in marijuana laws creates a potential conflict issue for any federal employee who is also an elected official. One city council member, Carol Brown, is a federal employee. Council Member Brown will have to recuse herself from any discussion of these laws in order to retain her federal position. However, these initiatives mandate that Ms Brown advocate changes in marijuana laws and appoint one member of the oversight committee. To comply with initiatives, Council Member Brown may have to resign from the Hailey City Council.

(5) Questions have been raised about the special status provided to the Liberty Lobby. The initiatives grant the Liberty Lobby automatic membership on the oversight committee. Providing an entitlement to a specific group may not be appropriate.

Mayor Davis, Council Member Keirn and Chief Gunter will be represented by an attorney of their choice. City attorney (and former Blaine County Prosecutor) Ned Williamson will represent the balance of the council and the city at large.


<span class=postbigbold>Davidson is back!</span>

Last January 22, 2008, the Liberty Lobby led by Ryan Davidson filed four initiative petitions with the Hailey City Clerk’s office. The submitted initiatives are identical to the initiatives voted upon by Hailey voters on November 6, 2007. These initiatives, if complete, are subject to a May 27, 2008 election.

How those will fare with the judgment of the Fifth District Court remains to be seen and it will be interesting to see how the Hailey electorate will decide in May. Stay tuned!

[palmspringsbum]

Hailey changes course on pot initiatives

<span class=postbigbold>Council decides to litigate rather than amend policies</span>

The Idaho Mountain Express
by TERRY SMITH
January 30, 2008

Hailey city officials have decided to go to court over three controversial marijuana initiatives approved by the electorate in November.

The decision, announced by Mayor Rick Davis at the conclusion of Monday's City Council meeting, is a change of course from a council decision of only two weeks earlier when it voted to amend the illegalities out of the three initiatives.

The reason for the change of direction? Pro-marijuana advocate Ryan Davidson filed four new initiative petitions with the city clerk's office on Jan. 22. The proposed initiatives are identical to the ones put before the voters on Nov. 6.

Hailey voters approved three of the four, rejecting one that would have paved the way for outright legalization of marijuana in the city of Hailey. Approved were initiatives to legalize medical use of marijuana, legalize industrial hemp and make enforcement of marijuana laws the lowest priority of the city's police department.

Davis' announcement Monday night followed an executive session requested by City Attorney Ned Williamson. Davidson's new initiative petition filings were the primary topic when council met in private.

A press release issued by the city states that a complaint will be filed in 5th District Court seeking a declaratory judgment as to the legality of the voter-approved initiatives.

"We need some closure on this," Davis said Tuesday. "If we get this declaratory judgment then Davidson can be reading off the same page.

"It's going to tell us what we can enforce legally and what we cannot. I just want to get if from the court."

Provisions of all three of the initiatives are obviously contrary to both state and federal law.

Davidson once lived in Bellevue but now lives in Garden City. He is director of The Liberty Lobby of Idaho and was the initiator of the four initiatives put to the voters in November.

Davidson's efforts in Hailey are part of a larger grassroots agenda to have marijuana laws reformed statewide and nationally.

The title of a 1948 Louis Prima jazz hit seems applicable to post-election efforts of Hailey-area marijuana advocates as city officials seeks to undo their November victory: "Heap big smoke but no fire."

Marijuana advocates have made a fuss on various Web sites, but have been strangely absent at City Council meetings where the issue has been discussed repeatedly during the last several months.

The lone exception occurred Monday night when Hailey resident John Caccia addressed the council. But Caccia's only issue is legalization of industrial hemp and he said he voted against the other pro-pot initiatives.

"Industrial hemp is altogether different," Caccia said, explaining that hemp is used worldwide in industrial applications but is against the law in the United States.

"I think the public is not being served by lumping industrial hemp with the marijuana issue," he said.

Industrial hemp and marijuana for smoking purposes are derived from the same species of cannabis plant but are of different varieties. Industrial hemp is extremely low in THC, the chemical that produces a high.

In terms of THC, Caccia described industrial hemp as "herbal tea" and marijuana as "bourbon."

Worldwide, industrial hemp's uses include production of rope, clothing, paper products, food and lotions.

Federal and state law put hemp and marijuana in the same category as illegal substances.

[palmspringsbum]

Hailey will repot vote to legalize marijuana


The Idaho Mountain Express and Guide
By :TERRY SMITH
February 11, 2008

Voters in Hailey will likely get to vote on four new initiatives to legalize or reform marijuana laws. City Clerk Heather Dawson has certified four initiative petitions filed by pro-marijuana advocate Ryan Davidson and scheduled them to be put to the voters at the May 27 primary election.

"I don't intend on stopping it," said Hailey City Attorney Ned Williamson.

The initiatives are not exactly new. They are identical to four marijuana initiatives that were placed before the electorate on Nov. 6. Three were approved and one failed.

Approved were initiatives to legalize medical use of marijuana, to legalize industrial use of hemp and to make enforcement of marijuana laws the lowest priority for the Hailey Police Department.

Rejected was an initiative to give the city the authority to tax and regulate sales and use of marijuana within the city limits.

Davidson filed his new petitions on Jan. 22 after learning that city officials planned to file a lawsuit in 5th District Court seeking a declaratory judgement on the three initiatives approved on Nov. 6. All three have provisions that appear in conflict with state and federal law.

"I kind of assumed that the council would do something like this," Davidson said.

He said a declaratory judgement against the three approved initiatives cannot keep the four new initiatives off the ballot.

The Idaho Supreme Court ruled in September 2006 that voters have the right to vote on citizen-driven initiatives regardless of the appearance of illegality. That lawsuit was brought to the high court by Davidson against the city of Sun Valley.