Rapert and Friends Have The Unconstitutional Munchies

As Usual, the Republican controlled legislature has an addiction problem. Filing unconstitutional bills is a major high for them, and they just can’t kick the habit. Unfortunately, they are all surrounded by a large group of enablers who are junkies themselves. Committees keep advancing asinine unconstitutional bills to their respective chambers where legislators approve them like a group of junkies lining up at the methadone clinic, and the governor then signs them, thus restarting their vicious cycle of addiction.

In particular, friend and avid reader of BHR Stanley Jason Rapert (R – Hypocritopolis),1 along with Robin Lundstrum and Gary Stubblefield decided to go against the will of the people and attack the Medical Marijuana Act which voters approved in the November election. Between the three of them, they are running 4 bills: SB357 to ban smoking of marijuana (failed in the Senate yesterday), SB333 to ban edibles, and HB14002 to ban smoking marijuana anywhere in the State of Arkansas, and HB1989 also to ban smoking marijuana anywhere in the State of Arkansas.3 So…with three bills filed, it is clear they are big on people not being able to smoke it, and though Lunstrum filed her bill first, Rapert’s bill led the charge in the Senate (and failed by a wide margin).

Stanjay and Lundstrum, in all of their infinite wisdom, added this text to a list of things a person cannot do:

“smoke marijuana in any location in Arkansas.”

The quotes from Rapert in the media have been…priceless.4

“People that voted for the Arkansas Medical Marijuana Amendment, I think they actually thought they were going to be voting on medical marijuana, which we all know is available in the form of Marinol before this amendment ever passed whatsoever. You could get marijuana in pill form before this amendment ever came forward.”

Hey…Captain Jackass, I have a secret for you – the word “cultivation” was in the ballot title.  Do you think pharmaceutical companies cultivate pills?  Marinol is not medical marijuana.  It is a synthetic compound.

Rapert said other delivery mechanisms would still be allowed, including vaporizing.

Well that’s handy. Since people have to vape, that means vaporizers would be durable medical equipment and therefore tax free. But he clearly has no concept of how all the “delivery systems” work:

“Let’s just not wrap up snake oil in a joint and smoke it,”

Bro, you roll a joint, you don’t wrap one, and you can’t roll oil into a joint, dumbass. Maybe he meant “Let’s just not fill the vape pen with snake oil and vape it.”?

But wait! There’s more!5

According to the Arkansas Times he also claimed that people who voted in favor of the medical marijuana amendment in November did not envision patients smoking the drug.6  No, really – that’s what he said. He also had some strikeout language in the very same bill:

(5) A landlord to permit a qualifying patient to smoke marijuana on or in leased property, except that a landlord may not prohibit the medical use of marijuana through means other than smoking on leased property by a qualifying patient.

AND, Section 6 of the act has this line:

Possess, smoke, or otherwise engage in the use of marijuana

So, if the voters didn’t envision people smoking the drug, why dearest Stanley, does the text of the act reference smoking? Hmmm…  Maybe we are looking at this the wrong way, because you know, when it comes to the law, words matter. Since he didn’t bother to define what “smoke” means, there are some other possibilities.  I mean, they are banning edibles as well, so perhaps the three chefs are opposed to people smoking their marijuana before using it.  I mean, who doesn’t like a good hickory smoked bud? Which reminds me, Matt is still trying to sell Thurgood, his professional smoker and grill for $5,000.7

But getting back to the main point, what they have all proposed is unconstitutional by the text the the voters approved when they passed the constitutional amendment (emphasis added):

§ 23. Amendment by General Assembly.

(a) Except as provided in subsection (b) of this section, the General Assembly, in the same manner as required for amendment of laws initiated by the people, may amend the sections of this amendment so long as the amendments are germane to this section and consistent with its policy and purposes.

(b) The General Assembly shall not amend the following provisions of this amendment:

(1) Subsections (a), (b), and (c) of § 3;

(2) Subsection (h), (i), and (j) of § 8; and

(3) Section 23

 

Let’s hash that out: “So long as amendments are germane to this section…” well, the bills they have filed do indeed relate to the act, so they are safe there;  “and consistent with its policy and purposes.” Oops.  It looks like somebody spilled the bong water and made a nasty mess that has to be cleaned up!

What is this “policy and purpose” thing you ask?8 Case law says that a state’s public policy is found in its statutes, so banning the eating or smoking of marijuana is at odds with the purposes of the amendment. The ballot title and subsections (a), (b), and (c) of Section 3 (which are specifically cited in Section 23 (b)(1) of the amendment as subsections that may not be amended by the general assembly) are the best indication of the policy and purposes of the amendment. They do not limit the manner in which the medical use of marijuana may be accomplished. Additionally, the definitions of “medical use” (“marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate” – seems to contemplate smoking) and “usable marijuana” (“the marijuana plant and any mixture or preparation thereof”) seem to be written intentionally broad to encompass any method of use.

As such, all of their bills violate the policies and purposes of the amendment under section 23(a), and they violate the express prohibition of section 23 (b)(1) by, in essence, amending Section 3 of the act to ban forms of authorized medical marijuana use.

One has to wonder – does the Bureau of Legislative Research not tell legislators when their bills are unconstitutional, or do the legislators just not listen?