JUDGE NEUTERS HAILEY POT INITIATIVES

City Still Required To Advocate For Marijuana Reform

A judge's ruling this week took the teeth out of two controversial
marijuana initiatives that were approved by Hailey voters, but left
intact a requirement that the city advocate for reform of marijuana
and industrial hemp laws.

Blaine County 5th District Court Judge Robert J. Elgee, in a decision
filed Tuesday, voided portions of the initiatives that would have
legalized medical marijuana use in the city and would have made
enforcement of marijuana laws the lowest priority for Hailey police.
The judge also voided language in the initiatives that would have
required individual city officials to advocate for marijuana reform.

However, provisions of the initiatives that require the city as an
entity to advocate for marijuana reform were left intact, as were
provisions that require the city to establish community committees
regarding marijuana and hemp issues.

Hailey voters approved three marijuana and industrial hemp initiatives
in 2007 and again in 2008. The initiatives were titled the Hailey
Medical Marijuana Act, the Hailey Lowest Police Priority Act and the
Hailey Industrial Hemp Act.

The city delayed implementing the initiatives into law, and instead
Mayor Rick Davis, City Councilman Don Keirn and Hailey Police Chief
Jeff Gunter filed a lawsuit last May against the city seeking a
judicial review of the legality of the initiatives. Arguments were
presented to Elgee at a court hearing in February.

Davis, Keirn and Gunter were represented by Hailey attorney Keith
Roark, while City Attorney Ned Williamson found himself in the unusual
position of arguing for the initiatives.

Ryan Davidson, the Garden City man who got the initiatives on the
Hailey ballot, said the city should have appointed an outside attorney
to handle the case.

"It's just so incestuous," Davidson said.

"I'll take issue with that," Williamson said, "but at least now we can
move on."

Contrary to state law

Elgee ruled as contrary to Idaho law a provision in the Medical
Marijuana Act that would have allowed doctors to prescribe the drug
for medicinal use and would have allowed individuals to possess up to
35 grams of the substance, the equivalent of about 1.3 ounces.

The judge ruled that a provision of the Lowest Police Priority Act
that put restraints on enforcement of marijuana laws is illegal
because it addresses an administrative function and is "not an
appropriate subject for a ballot initiative."

Elgee voided out language in all three initiatives that would have
required individual city officials to advocate for reform of marijuana
laws, ruling that the provisions violate "free speech" guarantees of
the U.S. Constitution.

Gunter said Wednesday that he is pleased with the judge's
ruling.

"If I want to advocate something, that should be my right and not
something I'm directed to do," the police chief said. "I'm also
pleased he voided the lowest police priority requirement because that
would have affected our relationships with other agencies as we battle
illegal drug use and would have affected drugs other than just marijuana."

Elgee left the Industrial Hemp Act almost intact; however, the act is
basically an advocacy statement and does not provide for growing or
using hemp in the city. Industrial hemp and marijuana are varieties of
the same plant species, Cannabis sativa L, but hemp is grown for its
stem fibers and seeds and is low in THC, the chemical that produces a
high.

Councilman Keirn said he's not sure how the city is going to implement
remaining provisions of the initiatives that require Hailey to
advocate for reform of marijuana laws and to establish community committees.

"A city as an entity has no voice unless we give it one." Keirn said.
"If we don't have to support it as individuals, I don't see how we can
do it as a city. We'll probably leave it up to the city attorney. We
can pass that one back and forth for a while."

Keirn said he is basically pleased with Elgee's ruling, but wishes the
judge had killed the initiatives outright.

"This one didn't quite put it to bed," he said.

Mayor Davis declined to comment on the judge's ruling, other than to
say, "From what I can tell, I got what I wanted."

Appeal Unlikely

"I am not going to recommend that we appeal this decision," Williamson
said.

Davidson said he may file as a third party intervener and seek to
appeal Elgee's decision on his own.

"I think on technical grounds, the decision can be overturned because
the city wasn't injured, nor did it claim to be injured, and that's a
requirement for a lawsuit," he said. "The city from day on has been in
violation of the law because they wouldn't enforce it, whereas they
should have been required to enforce it until it was ruled
unconstitutional."

"I'm glad he left some parts of the initiatives intact," Davidson
added.

Williamson said he's pleased that the city has received the judicial
clarification it needed regarding the initiatives.

"The people spoke when they voted for this, but just like with the
Legislature, laws have to be subjected to legal scrutiny," he said.