Judge says constitution protects right to grow tomato plants, why not cannabis?

[Dante]

I still haven't seen a response to my question. Where does the Constitution protect our right to grow tomatos? I see no reason the state government could not outlaw it, heck the commerce clause might give the Federal government power to do so, though I hope no one would be stupid enough to pass such a law on a state or federal level.

I have a feeling the Judge was speaking about an ordinance and the State Constitution, and the rights retained by the State and the people. This is why I asked for links. Context

 

[Dante]

This is too funny: Green Acres Episode 11

THE STORY
Oliver decides to plant all 160 acres of his farm with wheat in order to maximize his profits. However, according to The Crabwell Corners Conservation and Stabilization Committee since Mr. Haney only grew eight acres of wheat in the 1958/1959 season, Oliver can only grow eight acres of wheat this season. Mr. Douglas goes into one of his typical tirades. He calls a meeting, organizes a petition, and calls Washington to protest.

Mr. Haney in an unusually charitable gesture, sneaks in Mr. Douglas's wheat seeds and is prepared to take up arms against the National Guard in what he refers to as "The Seige of Green Acres." As it turns out, Oliver can grow as much wheat as he would like. It turns out that the "wheat penalties" law had been abolished in 1953, and the Conservation and Stabilization committee was just a little behind on reading their mail.

The show ends with Lisa explaining to Oliver how she is having a problem with the washing machine...It seems when she put in the table cloth, she forgot to take off the dishes!

 

[DNAprotection]

I still haven't seen a response to my question. Where does the Constitution protect our right to grow tomatos? I see no reason the state government could not outlaw it, heck the commerce clause might give the Federal government power to do so, though I hope no one would be stupid enough to pass such a law on a state or federal level.

I have a feeling the Judge was speaking about an ordinance and the State Constitution, and the rights retained by the State and the people. This is why I asked for links. Context

the judge was just speaking generally in response to an equal protection type argument i was making that cali's CUA meant to put patients growing their own medicine on the same footing of protection as any other gardener based on the qualification of their doctors recommendation as authorized by the CUA. moreover i was arguing that there was no statute protecting tomato growing specifically as there is with medical cannabis growing.

 

[Avatar4321]

Well I've been exposed to many interpretations of the 9th amen including a fed judges, but what is yours?

That the Constitution doesn't prevent there from being other rights. That it doesnt enumerate all rights we have.

That doesn't mean all rights are protected by the Constitution, in and of itself. There are some rights protected under statute. There are some rights that are not protected any law, but that we still exercise without thinking.

Some rights we can cede to the government even if it's not wise to.

 

[Dante]

This is why I argue for decriminalization before legalization and commerce shit with cannabis. I grow most any herb or spice in any amount without asking for authority and I may do what I want with it.

Dope advocates have erred in asking for doctor's permission. I understand people with illnesses doing so, but the general dope advocate should be trying to keep regulation and commerce OUT

 

[Dante]

Well I've been exposed to many interpretations of the 9th amen including a fed judges, but what is yours?

That the Constitution doesn't prevent there from being other rights. That it doesnt enumerate all rights we have.

That doesn't mean all rights are protected by the Constitution, in and of itself. There are some rights protected under statute. There are some rights that are not protected any law, but that we still exercise without thinking.

Some rights we can cede to the government even if it's not wise to.

very liberal argument here. hmmmm...

Avatar4321 posted

Youre presuming a right exists to begin with.

...
in ref to: How Is It Legal???? I'm still puzzled as to how, once it's signed into law by a Governor, that the people can then LEGALLY have someone's rights put to a vote. I mean, this concept tramples all over the Constitution.

 

[DNAprotection]

This is why I argue for decriminalization before legalization and commerce shit with cannabis. I grow most any herb or spice in any amount without asking for authority and I may do what I want with it.

Dope advocates have erred in asking for doctor's permission. I understand people with illnesses doing so, but the general dope advocate should be trying to keep regulation and commerce OUT

Ironically i agree with you and thats what this thread boils down to Donte, trying to get folks aware of the real issues at stake here

 

[Dante]

This is why I argue for decriminalization before legalization and commerce shit with cannabis. I grow most any herb or spice in any amount without asking for authority and I may do what I want with it.

Dope advocates have erred in asking for doctor's permission. I understand people with illnesses doing so, but the general dope advocate should be trying to keep regulation and commerce OUT

Ironically i agree with you and thats what this thread boils down to Donte, trying to get folks aware of the real issues at stake here

Nothing ironic there. What transpired in ref to context is irrelevant to this.

 

[DNAprotection]

links. links to facts in the case and the history .. context

Context is king. Knowing where the arguments comes from helps frame an argument. You started out using a real case and not some hypothetical argument. That opened it all up for a mind like mine who likes to know the facts

Dante somehow I doubt you are really that genuinely interested and in any event all I could post are my pleadings in that state civil case because the case simply isnt on line to post links to and somehow I doubt you really want me to post a lengthy pleading.

What is extremely interesting is the tomato analogy. That has to be good. The Judge thought so

I'm glad you picked up on that...in fact all my arguments bothered him deeply and so thats why he went on so long in his oral ruling, about ten pages worth, it seemed he was more trying to convince himself then trying to show me his reasoning.
if you are really interested i will dig out that part and post it.
for now though i gotta hit the hay for an early day tomorrow.
good chatting with yall, thnks

 

[Little-Acorn]

Obviously an ordinance which declares growing more than X number of tomato plants outdoors in plain view to be a nuisance would be unconstitutional, That’s certain.

Against which constitution? You said he was a "California judge". Does he mean, against the California state Constitution, or against the U.S. Constitution?

I don't know what the Calif const says on the subject.

The U.S. Constitution says nothing about planting anything. Meaning, the Fed govt is forbidden to make laws against the planting of tomatoes etc. (and yes, that includes marijuana).

But the 10th then says that such lawmaking is "reserved to the states, or the People". Meaning, those lower governments can make laws against such planting if they want to.

What does the Calif state constitution say about it? Anyone know? And was this judge referring to that constitution instead of the Fed constitution?

 

[DNAprotection]

Obviously an ordinance which declares growing more than X number of tomato plants outdoors in plain view to be a nuisance would be unconstitutional, That’s certain.

Against which constitution? You said he was a "California judge". Does he mean, against the California state Constitution, or against the U.S. Constitution?

I don't know what the Calif const says on the subject.

The U.S. Constitution says nothing about planting anything. Meaning, the Fed govt is forbidden to make laws against the planting of tomatoes etc. (and yes, that includes marijuana).

But the 10th then says that such lawmaking is "reserved to the states, or the People". Meaning, those lower governments can make laws against such planting if they want to.

What does the Calif state constitution say about it? Anyone know? And was this judge referring to that constitution instead of the Fed constitution?

Because the judge was never specific about what con he was depending on in that statement i can only guess that he was talking fed con, but with respect to this area the cal con and fed con are not that much different.

(for Dante et al)
Clearly i am not the best writer for the job but if i didn't write it it wasn't going to get written, so here is the bit the judge was responding to:

"GARDENING 'v' FARMING AND DISCRIMINATION"

"It should also be noted that the circumstance at issue here is a gardening issue, it's not a 'farming' issue, therefor this is not a 'regulate commercial crops' or 'livestock/farm animals' issue, this is a regulate private gardening issue, and as such this ordinance expressly discriminates against legal medical cannabis gardeners who are trying there best to supply their own needs as protected by the CUA.
The CUA, by virtue of its very existence seeks to end government discrimination against people who use cannabis for medicine and ensures that at least in California qualified legal patients are protected from such government codified and institutionalized discrimination in every way possible.
If the ordinance just dealt with gardening in general and applied equally to all gardening, not just to medical cannabis gardeners, it would have more breath to defend against a facial challenge. Even for example, in a scenario where an ordinance were to single out tomato plants and tomato gardeners it would be better equipped to survive a constitutional challenge due to the absence of a CUA type law expressly protecting that plant species and its host gardeners and fully occupying that specific area of law.
In other words people growing their own medical cannabis as recommended by their doctor should have the same ability to access and utilize their particular gardening space as any other home gardeners growing any other legal species of plants, (many of whom are actually growing other types of food/medicine plants as recommended by their homeopathic doctors), especially when such species specific gardening is expressly protected by an even higher shelf of law than one coming from any legislative body in the state such as the CUA does.
Further, defendants continually put forward the notion that all is well and fair and no patients are damaged because they could "hypothetically" easily grow whatever they need beyond the ordinances limits by growing indoors or in a greenhouse, not only does this hypothetical notion fail to remedy the gardening discrimination issue, it fails miserably to somehow 'fill the void' defendants ordinance creates with respect to a patients right to obtain what cannabis they need by way of growing it themselves under the auspices of the CUA.
As plaintiffs have previously tried to show the court in what was accepted by the (temporary substitute) Judge as a "court exhibit", the exorbitant cost of either indoor or greenhouse gardening is unreachable to most medical cannabis patients.
On top of the $8,000 to $40,000 (depending on size) just to cover the cost of an appropriate greenhouse, the county requires paying for a permit to build a greenhouse, and we can assure this court that every patient we know, including us, would gladly already have greenhouses if we could, but its just not doable for most of us.
On top of the $8,000 to $40,000 or more (depending on size) just to cover the cost of a proper as possible indoor garden, there is also the $1,000 per month electric bill generated when just growing 6 to 12 plants which annually reaches between $12,000 to double that number if growing double the number of plants and is not only for many reasons undesirable to most organic gardeners but is also completely unreachable for most cannabis patient gardeners.
Further, the indoor growing that is being promoted now by the defendants in effort to sustain their ordinance puts patients and their neighbors at great risk of fire by creating an unecessary and unjustifiable fire hazard where such didn't exist before.
From plaintiffs view though, even if a patient could somehow afford to have a greenhouse or could afford and chose to grow indoors, or even being able to afford and going so far as to buy or rent multiple dwellings, all of which defendants have suggested constitute 'reasonable remedy', such should be of no consequence because if it imposes on a patients ability whatsoever than it is in conflict with the letter and the intent of the CUA.
The CUA specifically does not provide for county governments to have authority to regulate the gardening of cannabis by qualified medical patients as recommended and regulated by their doctors in an effort to avoid patients having to endure the very type of ordinance the defendants have adopted and in effort to spare patients from the very type of prejudices the defendants have displayed and enticed in effort to adopt such.
The CUA specifically does not spell out any 'special' conditions like 'screening' or 'set backs' or any other type of conditions or restrictions like the defendants have created no matter how 'reasonable' they might appear because firstly they outwardly discriminate against legal cannabis gardeners by separating that private gardening activity from other general private gardening activity by imposing standards that no other gardeners are held to, and secondly thereby promoting the obviously existing prejudice rather than working against said prejudice by ensuring that legal cannabis gardeners are on the same legal footing as any other gardeners by intentionally rejecting such language as the CUA does.
It's not hard to imagine how organic gardeners in general would react if they were told they could only grow according to the standards set forth by defendants ordinance, and that if it was challenged and upheld, it's not hard to imagine the many folks who would then be precluded from gardening or being able to garden in any meaningful enough way to provide for their own needs for that year because they would be simply unable to meet said standards."

 

[DNAprotection]

Dante you might also find this bit interesting, i was questioning the Cred of the L.C. B.O.S...

(3)
"CREDIBILITY"

"The people of the state of California have made clear with passing the CUA that the government has an irreparable credibility problem concerning its position with regard to medical cannabis, and it should be clear by now that to this day government still does not represent 'the will of the people' when it speaks to this issue, and therefor nothing defendants say in this case should be considered as truth on its face and at the very least should be intensely scrutinized.
The defendants DEMURRER..., and MOTION TO STRIKE..., both count on the court overlooking the self evident facts of this matter as well as the existing systemic prejudice concerning cannabis that is clearly fueling the circumstances that have created the need for this case.
The ordinance in question expressly singles out qualified legal medical cannabis patients to be restricted and or punished in the county's effort to "among other things" control what they say are "strong odors which are offensive to many residents of the county", even if that conclusion could be accepted at face value, the defendants are apparently claiming that by some standard of judicial measure the rights of some people to claim an odor is an "offensive odor", with no claim of health risks or negative health effects from said odor, somehow out ways the rights of patients and their doctor patient relationships that seek to address the needs of the sick and to which the people of the state have expressly protected by passing a law that unequivocally seeks to ensure that patients could grow what cannabis they need for their own medical use as recommended by their doctor.
All of the other issues that the defendants include in the "among other things" category are issues that existing law other than their 'urgency' ordinance clearly and plainly has the ability to reach and remedy, therefore said ordinance must have a deeper and more broad purpose or intent. The defendants own words as well as the words of their lawyer point to possibly an intent to attempt a sort of 'cultural cleansing' of the county in effort to be rid of what they characterize as the 'pot culture' and the people they call 'stoners' and 'pot heads' and 'druggies' and 'hippies' etc.
The county's ordinance was fueled and justified by view points exampled in this quote from Supervisor Jim Comstolck when he was summing up why he was in favor of the 'urgency ordinance' during the hearing held to adopt said ordinance stating:

"I feel its very very important to deal with the grows on the rural residential properties that are occupied also, cause those are impacting lots of citizens around them… and if someone needs it for their medical purposes god bless’em, but more then 3 plants is not for anything except illegal drug sales use and profitability and anybody saying anything else is gonna have a difficult time, because its just flat out illegal and its for illegal purposes and its bringing nothing but problems to our communities and its time to deal with it."

There are hundreds of quotes like Supervisor Comstolck's available on cd that go back over the last three years of hearings the B.O.S. has held on this subject, much of which are even more prejudicial in their attitude towards the plant and the people who legally use it. Supervisor Comstolck's quote and many others like it can seemingly only possibly be viewed in three ways, either he (hasn't even read) is so ignorant of the CUA that he sees this area of law as wide open for regulation, or on about the same level of plausibility he has read the one page CUA and simply doesn't understand it and then comes to the same conclusion as the previous scenario, but more likely it would appear that he has read the one page CUA and doesn't understand it yet simply doesn't really care what it says anyway and has decided that his opinion trumps such in this county, either way the sentiment seems ultimately rooted in a systemic prejudice.
The Sheriff, defendant Rivero, on his by weekly radio show has what appears to be a 'normal' practice of frightening and intimidating whomever patients might be listening through his misinformation campaign which is probably best exampled by his continuous and insistent claim that we patients grow "8 pounds" per plant, while in court though where such numbers are subject to judicial scrutiny defendants have modified their number to 2-4lbs per plant which is only exaggerating what most patients get per plant by a little more than double and which be it on radio or in court appears intended to unduly prejudice any people who are listening, and whether intended or not the affect remains.
The Sheriffs misinformation campaign is not limited to the radio though, as with Rick Coel, he has been central to the creation, adoption and enforcement of the county's 'urgency' ordinance and his influence has clearly been felt at every hearing the B.O.S. has had on this subject sense he was elected, including the hearings that led to the 'dispensary' ordinance.
Many of the aforementioned hearings were about an ordinance to 'deal' with dispensaries and the end result was an ordinance that effectively bans dispensaries from the unincorporated areas of the county leaving many patients in hardship for lack of local availability, yet regardless of patients needs and even State Supreme Court rulings in the LA dispensary cases the defendants have done nothing to amend their dispensary ordinance to instead 'reasonably regulate' dispensaries and many patients who cannot grow their own for whatever reason are still in hardship because of such, meanwhile the defendants continually cite the same LA cases in effort to transpose the legal premise of 'reasonably regulate' based on SB420 over into this completely non-similar set of facts and circumstances where it starts and ends with the CUA and simply has no application in an area of law that is entirely occupied by the CUA which has the built in regulative device of the doctor patient relationship which the voters of this state said is the only 'reasonable regulation' said patient gardeners should be subject to in terms of numbers of plants a patient can grow directly relating to a patients individual needs.
Plaintiffs also believe that defendants move to circumvent the referendum process should be another area of component in weighing the defendants overall credibility in this matter. The county referendum process is in some ways comparable to the state ballot initiative process in that the voice and will of the people can override that of the legislators.
Supervisor Rushings quote from the 'urgency' ordinance hearing should be enough to speak for itself with regard to this matter, the referendum process and the reason the word "urgency" appears on this ordinance, the Supervisor's quote goes as follows:
" I don’t think that there is any disagreement that this board of supervisors has tried and has passed an ordinance, um, the issue, if I could just frame it, is that whatever we do here there is substantial disagreement within the community enough that signatures can be gathered and can stop an ordinance that we pass, and so the trick is how do we come up with something that will deal with these ridiculous and horrible situations without triggering the initiative process that stops it. That’s the problem." "

 

[DNAprotection]

First you need to provide a link to what you supposedly cut and pasted here.


Second, your profound ignorance on legals issues and what is and is not constitutional is appalling. You do dope?

Maybe my "profound ignorance" comes from spending so much time in court throughout my life?
Far more likely though is that your own "profound ignorance" likely comes from a total lack of experience arguing a constitutional case of any kind in court which probably also accounts for your arrogance

Losing cases and asking leading questions and fundamentally using unsound arguments. Your ignorant questions about what is and is not constitutional is even more appalling than I first thought if you are going to claim to be a lawyer or some kind of a legal aide.

You remind me of a handyman who has lots of experience on lots of jobs -- lots of jobs that he fucks up

As i said before, no doubt you are correct that practically anyone could do a better job, but no one i know of is asking these fundamental questions in court so i can only try the best i can Dante.
Actually D i did technically 'win' 1 for the 'Gipper' out of those 3 cases referenced in this thread, it was the only one of the three that actually made it all the way to trial.
'Winning' though is all a matter of perspective imo.
When fighting a 'war' against a 'war' there are many battles and from my view the best one can do is attempt to survive and emerge from each battle with the spoils/treasures of knowledge/learning from each battle enough to live and fight another day with that knowledge, and its a lifetime adventure so the notion of 'winning' and 'losing' becomes for the most part a mute point.
At the end of the day bro aren't we all just trying to stay human?

[ame=http://www.youtube.com/watch?v=kGa5O1e7HVk]michael franti stay human earthdance - YouTube[/ame]