Friday, May 6, 2016

"POT LAW DIVIDES ATTORNEYS"

When I worked for the State Attorney's Office we had a saying that went something like this: "Your day is off to a good start if you pick up the morning paper and your name isn't on the front page." I picked up the Lake City Reporter yesterday morning and by golly, not only my name but my picture was on the front page. My first thought was "Oh, [organic fertilizer]!" The headline made it look like State Attorney Jeff Siegmeister and I were about to square off and come to blows over the issue of a proposed ordinance to decriminalize small amounts of marijuana in Columbia County. We aren't. We've never discussed the matter, and our views are not as far apart as the headline would lead the casual reader to believe.

If you read the article carefully, you see that the disagreement between Mr. Siegmeister and me is more apparent than real. Such an ordinance is most likely unconstitutional and would be struck down if challenged. Until challenged and invalidated it could be enforced. Mr. Siegmeister says they can't pass such an ordinance, meaning if they pass it the ordinance would be unconstitutional. I say they can pass it, but it will likely be struck down as unconstitutional if challenged. Two lawyers saying basically the same thing but sounding like they disagree.

A county ordinance in derogation of statewide criminal law is prima facie unconstitutional and vulnerable to being struck down. I remember a situation years ago where some county passed an ordinance for issuing concealed weapons permits. That ordinance sought to decriminalize carrying concealed weapons, and it was struck down as unconstitutional. I foresee the same fate for a county ordinance decriminalizing possession of marijuana IF it is challenged.

If the State Attorney agreed not to challenge the ordinance, then such an ordinance could fly, unless some other representative of the state (the Attorney General maybe) decided to step in and challenge it. 

Nobody asked me about the wisdom of a local ordinance decriminalizing possession of small amounts of marijuana, but I'll put in my two cents' worth anyway. For all practical purposes the possession of small FELONY amounts of marijuana has been decriminalized ever since the Florida Legislature enacted the Sentencing Guidelines back in 1983. Break out a Florida Punishment Code score sheet and figure out how many times you'd have to be convicted of FELONY possession of marijuana before you would score incarceration. If possession of marijuana is going to be further decriminalized, it ought to be decriminalized by the Florida Legislature, not individual Boards of County Commissioners.

There was one thing that Mr. Siegmeister and I seem to have a genuine disagreement about, and that is the effect that a decriminalization ordinance would have on search and seizure law. According to the paper, he argued to the Board of County Commissioners that a decriminalization ordinance would make it difficult to establish probable cause for searches based on the smell of cannabis. I contend that it would have no effect. State law trumps County Ordinance. Search and seizure law would be unaffected by a decriminalization ordinance.