Las Vegas Sun

September 29, 2023

Attorneys hope Supreme Court clears smoke on medical marijuana law

Local district judges make opposite rulings regarding medical marijuana dispensaries

Schwingdorf Bail Hearing

Steve Marcus

Judge Donald Mosley asks a question to attorneys during a bail hearing for Leonard Schwingdorf in District Court Wednesday, Sept. 28, 2011. Schwingdorf is among defendants facing charges in connection with distributing medical marijuana.

Medical marijuana law ruled unconstitutional

KSNV coverage of judge's ruling that state's medical marijuana law is unconstitutional, March 3, 2012.

Attorneys representing medical marijuana providers say they hope the Nevada Supreme Court will confirm last week's lower-court ruling that the state law effectively banning pot dispensaries is unconstitutional.

The attorneys, Robert Draskovich and John Turco, say the high court’s action could finally bring clarity on the law, which allows Nevadans to possess marijuana for medicinal reasons but provides no means to legally obtain it.

Judge Donald Mosley’s decision Friday contrasts with a ruling on a similar case before the Supreme Court. The ruling by Judge Douglas Smith allowed an indictment of six people arrested in a police raid of a dispensary to stand.

“We have one district court saying that medicinal marijuana is unconstitutional. We have another that’s saying the exact opposite. We’re hoping the Nevada Supreme Court addresses this split in the District (Court) as soon as possible,” Draskovich told reporters at a news conference this morning.

Draskovich said attorneys are hoping the Supreme Court will issue a stay of similar prosecutions while it deliberates on the matter.

Draskovich also said he hoped that new District Attorney Steve Wolfson “would be far more reasonable” about prosecuting such cases in the future. Tess Driver, Wolfson's executive assistant, said Wolfson has not yet seen Mosley's ruling from Friday and has so far declined interviews on the matter.

On Friday, his last day on the bench before retiring, Clark County District Judge Donald Mosley declared the state’s medical marijuana law to be unconstitutional. Mosley also dismissed drug trafficking and other charges against two people — Leonard Schwingdorf and Nathan Hamilton.

Schwingdorf and Hamilton operated Sin City Co-op, where those with state-issued medical cards believed they could legally buy marijuana to ease pain related to their ailments, much the same way they would go to a pharmacy. Their co-op was among several shut down last year by a Metro Police task force working with the Clark County District Attorney’s office.

Although Nevada voters changed the state’s constitution in 2000 to allow people who need marijuana for medicinal purposes to possess seeds and grow their own plants and to possess marijuana, the law allows no legal way for them to buy the seeds or to purchase marijuana if they can’t grow it themselves. The dispensaries were similar to some in California, where medical marijuana has gained wider acceptance.

The co-op organizers accepted donations to provide members with marijuana. However, prosecutors say the donation constituted a sale, which violates state and federal laws.

In his order on Friday Mosely said the state law was “poorly contemplated or purposefully constructed to frustrate the implementation of constitutionally mandated access to the substance.”

Turco and Draskovich said Mosley’s order conflicts with Smith's ruling, which they have appealed to the Supreme Court. In that case, Smith allowed an indictment to stand against six people arrested in a police raid of a dispensary called Jolly Green Meds, and also hinted at the difficulty he had reaching a decision following oral arguments Sept. 16.

The state's medical marijuana laws aren't too vague to allow charges to stand against six people arrested in a police raid of the Jolly Green Meds dispensary last November, Smith said. But he noted that state law fails to provide a way for patients with a doctor's prescription to legally obtain marijuana.

Draskovich and Turco said the laws have been vague since voters approved a change in the constitution in 2000 that would allow the medicinal use, possession and distribution of marijuana.

“In the intervening 12 years, that constitutional mandate has been frustrated,” Draskovich said. “The Nevada Legislature has passed a patchwork law concerning who can possess it and who can distribute it.”

“To add prosecutorial insult to statutory injury, Metro got together a task force and began charging people who were attempting to comply with this constitutional mandate,” he said. “The district attorneys office began to initiate prosecutions, seeking life sentences from those who were trying to distribute this marijuana to those who were suffering from chronic and debilitating disease.”

Draskovich said Mosley’s rulings declare that the prosecutions “violate the will of the people and violate the Nevada Constitution.”

“It’s our hope that the Nevada Legislature will pass laws now to comply with the Nevada constitutional mandate,” he said. “And on behalf of our clients, and on behalf of all those who need medicinal marijuana, we hope that occurs sooner versus later.”

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