Appeals court sides with marijuana enforcement ruling


An appeals court has sided with a lower court’s ruling that the county’s voter-approved initiative making adult personal use of marijuana on private property the lowest law enforcement priority is unenforceable.

The ruling opinion issued Friday by the state Intermediate Court of Appeals affirms the Jan. 28, 2013, ruling by Hilo Circuit Judge Greg Nakamura, who dismissed a civil lawsuit against the numerous county officials, which alleged they failed to implement and enforce the initiative passed in 2008 by a vote of 35,689 to 25,940.

The suit was filed March 24, 2011, by a group of marijuana activists led by Michael Doyle Ruggles. Defendants in the suit included all county council members at the time plus those who were members when the initiative passed, Mayor Billy Kenoi, Police Chief Harry Kubojiri, then-Prosecutor Jay Kimura and two deputies, Charlene Iboshi and Mitch Roth, who both later became county prosecutor.

Ruggles said Saturday that he and his fellow plaintiffs, which include fellow activists Nancy Waite Harris, Kenneth V. Miyamoto-Slaughter, Wendy Tatum, Robert S. Murray, George Herman “Greywolf” Klare and Barbara Jean Lang, are “definitely gonna appeal it” to the state Supreme Court.

“We really weren’t expecting much out satisfaction out of the appellate court, because these are the same guys who upheld” the conviction of medical marijuana patient Geoffrey Woodhall for possessing a small amount of pot at the Kona airport. Woodhall’s conviction was later overturned by the state Supreme Court.

“They ruled that we didn’t have the right to transport (amounts of marijuana legal under medical marijuana law) in the public domain at the intermediate level, but then the Supreme Court ruled it was absurd and overturned it.”

The Lowest Law Enforcement Priority of Cannabis Ordinance or LLEP, defined an “adult” as any individual age 21 or over and “adult personal use” as use of cannabis on private property by adults and applied to possession or cultivation of 24 or fewer marijuana plants or its dried equivalent, presumed to be 24 or fewer ounces of cannabis.

Nakamura ruled that the provisions of LLEP “are preempted by the provisions of Title 37” of Hawaii Revised Statutes and “are thus unenforceable.”

Writing for the panel of three judges, who ruled unanimously, Associate Judge Daniel R. Foley wrote: “The County derives its powers to enact and enforce ordinances from the general laws of the state of Hawaii. … The County’s authority to enact and enforce ordinances, however, is limited by the legislature’s power to enact laws of ‘statewide concern.’”

Foley wrote that state laws that criminalize and regulate the adult use of cannabis “provide further evidence of legislative intent to preempt the LLEP.”

“The circuit court found the LLEP would prevent the investigation and prosecution of” marijuana possession cases, including possession of more than a pound of marijuana, Foley wrote, concluding “that the LLEP conflicts with, and is thus preempted by state laws governing the investigation and prosecution of alleged violations of the Hawaii Penal Code concerning the adult personal use of cannabis.”

Roth, who was elected county prosecutor in 2012, called the ICA ruling “the right decision for the court to make.”

“We’ve been operating under that assumption for the last year or so, that that was the way they were gonna rule,” he said. “I believe the reasoning was sound. I don’t think it’s gonna be overturned.”

County Deputy Corporation Counsel Michael Udovic, who represented the county both in the original suit and in the appeal, called the ICA opinion “an appropriate decision” and “pretty straightforward.”

“Once you have a state law that covers a specific area, the county council really doesn’t have any authority to make any laws which are in conflict with the state law,” he said. “That’s what the whole thing was all about.”

” I know Mr. Ruggles and his group are very sincere in their beliefs about marijuana, but unfortunately, the law’s the law and we have to support it,” Udovic added.

Colorado and Washington have both legalized possession of small amounts of marijuana for recreational use by adults.

Asked if he thought Hawaii would legalize recreational use of pot by adults in the foreseeable future, Ruggles said it was doubtful because “every year there are 20 bills about medical marijuana introduced and every year they all get shot down because nobody can agree on anything.” He said it was likely the federal government would legalize it first and “make the whole situation moot.”

Roth said other states, Hawaii included, are in a “wait-and-see” mode to gauge the effects of the Washington and Colorado laws.

“I don’t think you’ll see it this year and probably not next year,” he said. “Once you legalize it, you open Pandora’s box. Some of the issues you’re seeing in Colorado and Washington are increases of kids using it in schools, lawsuits. I was reading an article recently that said that traffic fatalities due to marijuana nationwide have significantly gone up, especially where marijuana and alcohol are used together.”

Roth was referring to a study by researchers from Columbia University’s Mallman School of Public Health, analyzing toxicology data in six states — California, Hawaii, Illinois, New Hampshire, Rhode Island and West Virginia — on more than 23,500 drivers that died within an hour of a crash between 1999 and 2010.

The study, published online in the American Journal of Epidemiology, concluded that traffic fatalities due to drugged driving are on the rise, with drugged driving a factor in more than 28 percent of traffic deaths in 2010, 16 percent more than in 1999.

The main drug involved in the spike was marijuana, according to the research, contributing to 12 percent of the fatal crashes in 2010, compared to only four percent in 1999.

Dr. Guohua Li, director of the Center for Injury Epidemiology and Prevention at Columbia, the study’s co-author, told HealthDay News that “currently, one in nine drivers involved in fatal crashes would test positive for marijuana.”

“If a driver is under the influence of alcohol, their risk of a fatal crash is 13 times higher than the risk of a driver who is not under the influence of alcohol,” Li said. “But if a driver is under the influence of both alcohol and marijuana, their risk increased to 24 times that of a sober person.”

Email John Burnett at jburnett@hawaiitribune-herald.com.