Landmark decision by the California Court of Appeals confirms that purchasing medicine by a member of a collective is enough participation in the collective, as long as the collective is operated in a not-for-profit capacity.
By Lauren Payne | November 8, 2012
Joe Elford (center) speaking at a press conference in Washington D.C. after arguing for the Rescheduling of cannabis at the federal level, saw a big win on the West Coast later in the week.
During Tuesday’s election returns, it became clear that the United States is ready to start taking the social and medical use of cannabis seriously.
Massachusetts overwhelmingly passed medical protections, Colorado & Washington both passed social use laws, and Arkansas narrowly missed passing medical protections.
Meanwhile, a recent California Appellate decision only received limited press, despite its wide implications. The case was brought by powerhouse Joe Elford, Chief Counsel of Americans for Safe Access.
Jovan Jackson was the manager of Answerdam Alternative Care Collective in Kearny Mesa, near San Diego.
In 2009, he was arrested, tried, and acquitted of charges related to the possession and sale of marijuana. Law enforcement continued to harass Mr. Jackson, and in 2010 he was again arrested on three felony counts of possession of marijuana and possession for sale.
During pre-trial hearings, the trial judge decided that Mr. Jackson was not entitled to use the defense provided for by the Medical Marijuana Program Act. The judge stated that the Answerdam Collective was too big to establish its main purpose as a cultivation collective. The judge said that Mr. Jackson was instead operating a retail business designed to simply distribute marijuana, which would mean the collective was not following state law. No evidence about the purpose of the collective, or sick patients were allowed into evidence. Unsurprisingly, Mr. Jackson was convicted on all three counts, and sentenced to 6 months in county jail and 3 years formal probation.
On October 24, the California Court of Appeal, 4th District overturned the conviction, stating that the trial court must allow Mr. Jackson to present evidence that the Answerdam Collective was operating within state law, and that the jury should be allowed to decide whether or not the Collective was, in fact, following the law. The decision discusses the types of evidence the jury should consider in making their decision.
The Appellate Court held that patient members are not required to actively participate in cultivation of marijuana; “financial support by way of marijuana purchases” is enough for membership. This does away with the argument made by many law enforcement officials that each patient must “till the soil” in order to participate in a cultivation collective.
The Court specifically stated that collectives must not engage in profit-making, and that the size of the collective is not definitive of whether the collective is aimed at turning a profit.
Instead, when a jury decides whether a collective is a profit-making enterprise, they can look at whether the collective operated at a profit or loss, the members’ participation in governance & operation of the collective, the size of the collective, and the volume of purchase made.
The Court also said that the lack of fairly complete records and/or lack of accountability to members would look bad, “especially when combined with a large number of members and evidence of a high volume of business.”
What does this mean for collectives in California? It means that collectives should keep detailed records, and share that information with the membership of the collective. It also means it’s important to develop ways to involve members in decisions about who runs the collective and how it’s run.
The Court also mentions California business law that allows for the creation of consumer cooperatives “which are ‘democratically controlled’.” This mention is further evidence that including patient members in the general oversight of the operation of the collective may help protect managers and others from criminal liability.
California collectives with further questions about this case are urged to have their attorney contact Americans for Safe Access.
Tags: Americans for Safe Access, ASA, California, cannabis, Colorado, controlled substances act, court of appeals, dea, dispensaries, Joe Elford, Jovan Jackson, Marijuana, medical cannabis, medical efficacy, Medical Marijuana, pot, San Diego, scheduling, Washington, Washington D.C., weed
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