High court hears medical marijuana case
September 10, 2013
Members of Nevada's Supreme Court seemed to agree Monday that the constitutional amendment permitting medical marijuana requires Nevada to provide a way for patients to get the drug legally.
But they questioned whether the answer is to toss a case or give prosecutors the go-ahead to try the operator of the now-closed Sin City co-op on multiple counts of selling pot.
Nathan Hamilton and Leonard Schwingdorf were indicted on drug charges, and the co-op shut down. But Clark County District Judge Donald Mosley threw out the charges this year, saying the old medical marijuana law "frustrates the constitutional mandate to reasonably provide a method for lawfully obtaining medical marijuana."
Clark County prosecutors appealed, asking the high court to reinstate the charges and let them take the case to trial.
Chief Criminal Deputy Christopher Laurent argued the voter-approved medical marijuana provision "does not provide for a constitutional right to sell a controlled substance.
"It seems to me citizens have been forced into, you can have it but there's no way to get it," said Chief Justice Kris Pickering.
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She was joined by Justice Jim Hardesty, who said, "I must be naïve here, but doesn't the Constitution compel the Legislature to address the supply question?"
"The answer seems to be get it off the street or get it from Mexico," he said, answering his own question.
The Sin City and similar cases helped persuade the 2013 Legislature to pass a bill creating a legal system of growers and stores where legitimate medical marijuana cardholders can purchase the drug. In addition, the federal Justice Department has since announced the government has no intention to go after Washington and Colorado, which have decriminalized use of pot, let alone the increasing number of states with medical marijuana laws.
Hardesty said a key question arresting officers failed to answer was whether the money they gave Schwingdorf was a voluntary donation or payment for the drug. He asked what would have happened if they had walked out without giving Sin City that "donation."
Laurent said he views the donation as the price of the drug, but Gary Modafferi and Joseph Lowe, representing Schwingdorf, said that's not true. They said officers simply failed to ask whether they had to pay. Modafferi said they would have been allowed to leave without doing so: "You didn't have to pay for it."
The court asked for a copy of the co-op membership agreement to help answer that question.
Modafferi said the minutes of the legislative hearing on the new law allowing licensing of pot growers and dispensaries clearly states that the reason for it is that the law in effect when Schwingdorf was arrested doesn't provide a legal way to get marijuana.
"This is the closest the Legislature will ever get to saying it's our fault," he told the court.
He added that Schwingdorf and his partner, Nathan Hamilton, now deceased, never intended to violate any laws. He pointed out that they registered as a nonprofit with the state and got a city business license before opening the co-op.
"They were trying to do everything they can to be within the letter of the law," he said.
The court took the case under submission.