STATE'S ATTORNEY AGREES: COUNTY MARIJUANA PRIORITY LAW VOID

State, Federal Jurisdiction Trump County Initiative

HILO -- County Prosecutor Jay Kimura says he has consulted with state
Attorney General Mark Bennett, and still views the Project Peaceful
Sky ordinance as "unenforceable."

The measure, which Big Island voters approved overwhelmingly Nov. 4,
would make the personal adult use of marijuana the county's lowest law
enforcement priority. It would leave the enforcement of marijuana laws
to each police officer's personal discretion, and would direct the
County Council not to accept state or federal funds for marijuana
eradication.

"On the face of the ordinance, it appears to violate the separation of
powers requirement under the (County) Charter, and as far as the state
marijuana laws, there is a pre-emption issue," Kimura told Stephens
Media last week. "Under the Constitution, the state Legislature can
pass laws, and in the areas where it passes laws, it prevents the
county from passing contrary laws.

advertisement"We prosecute under the authority of the Attorney
General, so these are state laws. So that would not change. As far as
how the county proceeds on it at the police level, they're also bound
by the Constitution to prosecute all laws, if they're valid laws, so
it really wouldn't change anything. They would still need to enforce
the law."

Police Chief Lawrence Mahuna, who is retiring Dec. 31, earlier called
the initiative, which passed muster with Hawaii County voters by a
margin of nearly 10,000 votes, a "resolution," not a law, and added
"there will be no change how we prioritize the enforcement of
marijuana. The resolution does not invalidate federal law. It doesn't
legalize marijuana. It's still a Schedule 1 controlled substance."

"We will continue in our efforts to reduce the availability of illegal
marijuana," Mahuna said in early November.

County Corporation Counsel Lincoln Ashida, who disagreed with Mahuna's
description of the ordinance as a resolution, said that Peaceful Sky
is an ordinance, as the County Charter allows for ballot initiatives
passed by voters to become law. Ashida does, however, have misgivings
about the measure, which he and Mayor Harry Kim both opposed, and
which was placed on the ballot by a 5-4 vote of the council, despite
County Clerk Casey Jarman's ruling that it had garnered only 2,214
valid signatures on petitions, far short of the 4,848 registered
voters needed to force a ballot initiative.

Kimura also maintained his stance that the amount of marijuana the
ordinance would allow for personal use -- up to 24 plants and 24
ounces of usable marijuana -- is too much.

"I would consider that pushing it -- and then again, it depends on how
big the plants are," he said. "One thing we've noted recently is that
where there's a limit on the number, the plants get bigger. So if
you're limited to four plants, they tend to have four large plants."

The state's medical marijuana law allows for up to seven plants, three
mature and four immature, and up to one ounce of usable marijuana per
mature plant for each permitted patient.

"The police have been careful to respect that portion of the law,"
Kimura said. "It seems to be working, but I guess some people want
more."

If Kimura is right, it's a lesson police may have learned the hard
way.

A Kona couple, John and Rhonda Robison, received a $30,000 settlement
from the county in 2004 for wrongful arrest. The Robisons and a
houseguest, Kealoha Wells, were arrested at their home on July 8,
2002, after showing police a greenhouse they used to grow marijuana.
Wells and John Robison were leukemia patients; Rhonda Robison had a
form of muscular dystrophy.

Although they had valid medical marijuana permits and were growing
fewer plants than the law allows, it was the third time the Robisons
were arrested and released without charge and their plants seized.

Adam Lehmann, Project Peaceful Sky's director, has said that police
have used taxpayer money to mistreat people.

"It seems to me they do check anyone who has a medical card. It gives
them a reason to fly their helicopters," he said. Lehmann did not
return a phone call to Stephens Media on Friday.

Kimura said the provision in the Peaceful Sky Initiative directing the
council to decline state and federal money for marijuana eradication
"appears to be a valid portion, so far."

"Practically speaking, it would have an effect, but it wouldn't
prevent the state or the federal agencies from enforcing existing
laws," he said. "For example, if the federal government decides to
conduct a marijuana raid or fly-overs, they would not have the same
restrictions that we currently have under state laws."

Ashida said he is mindful that the public voted for the initiative,
and that he wants to have a sit-down with stakeholders, such as
Lehmann and the new police chief, to "hammer out" an agreement. He
added that losing the state and federal funds would have other
unintended consequences.

"The county receives a considerable amount of money from the state and
federal government, not only for enforcement, but funds for
interdiction programs and drug education in the schools."