IN THE SUPREME COURT OF THE STATE OF NEVADA Case Nos.

60464 and 60466 __________________________________________________________________ Electronically Filed Mar 22 2013 10:26 a.m. THE STATE OF NEVADA, Tracie K. Lindeman Appellants, Clerk of Supreme Court And NATHAN HAMILTON, Respondent LEONARD SCHWINGDORF, Respondent __________________________________________________________________ Appeal from Order Granting Respondents Motion to Dismiss in the Eighth Judicial District, Clark County Nevada Brief of Amicus Curiae American Civil Liberties Union of Nevada
Supporting Respondents Katrina M. Ross Staff Attorney ACLU of Nevada Nevada Bar No. 12635 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 ross@aclunv.org Allen Lichtenstein General Counsel ACLU of Nevada Nevada Bar No. 3992 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 lichtenstein@aclunv.org Attorneys for Amicus Curiae Staci J. Pratt Legal Director ACLU of Nevada Nevada Bar No. 12630 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 pratt@aclunv.org

Docket 60464 Document 2013-08579

STATEMENT OF IDENTITY AS AMICUS On March 8, 2013, the Nevada Supreme Court entered an order granting the ACLU of Nevadas Motion for Leave to File Amicus Brief and ordered the ACLU of Nevada to file said brief.1 As amicus to the above captioned case, the ACLU of Nevada submits this Brief of Amicus Curiae American Civil Liberties Union of Nevada Supporting Respondents.

State v. Schwingdorf consolidated case No. 60464/60466, Document Number 13-

07152, March 8, 2013

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TABLE OF CONTENTS STATEMENT OF IDENTITY AS AMICUS ............................................................i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ......................................................................... iii MEMORANDUM OF POINTS OF AUTHORITIES .............................................. 1 STATEMENT OF FACTS AND PROCEDURE ........................................... 1 SUMMARY OF ARGUMENT ....................................................................... 4 STANDARD OF REVIEW ............................................................................. 5 ARGUMENT ................................................................................................... 5 I. NRS 453A.200 and 453A.300 Unconstitutionally Conflict with the Constitution of the State of Nevada, Article IV, Sec. 38 ................................... 5 II. NRS 453A.200 and 453A.300, are Unconstitutionally Vague Because They Fail to Provide Ordinary People Sufficient Notice Regarding the Exercise of Their Constitutionally Protected Right to Access Medical Marijuana .................................. 8 III. NRS 453A.200 and 453A.300 are Unconstitutionally Vague Because they Authorize and/or Encourage Arbitrary and Discriminatory Enforcement ........................................................... 11 IV. There Cannot Be Justification for the Vagueness of NRS Chapter 453A Based on a Potential Conflict with Federalism ................................................................. 14 CONCLUSION.............................................................................................. 19

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CERTIFICATE OF SERVICE ...................................................................... 20

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TABLE OF AUTHORITIES CASES Flamingo Paradise Gaming LLC v. Chanos, 125 Nev. 502 (2009) ..................5, 8, 9 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941(2003)...17 Hodel v. Virginia Surface Min. and Reclamation Assn Inc. 452 U.S. 264 (1981)..18 J.E. Dunn Northwest, Inc. v. Cours Const. Venture, LLC, 249 P.3d 501 (2011) .7, 13 Kolender v. Lawson, 461 U.S. 352, 361 (1983) ..................................................... 12 Lanzetta v. New Jersey, 306 U.S. 451 (1939) ........................................................... 9 Nevadans for Nev. v. Beers, 122 Nev. 930 (2006). ................................................... 5 Nevadans for the Protection of Property Rights, Inc. v. Heller, 122 Nev. 894, 141 P.3d 1235 (2006) ........................................................................................................ 6 New York v. United States, 505 U.S. 144 (1992) ..16, 17 Papachristou v. City of Jacksonville. 405 U.S. 156 (1972) ...................................... 9 Printz v. United States, 117 S.Ct. 2365 (1997) ..16 Sheriff, Washoe County v. Burdg., 118 Nev 853, 59 P.3d 484 (2002). ............. 9, 11 Silvar v. Eighth Judicial Dist. Court Ex rel. County of Clark, 122 Nev. 289, 129 P.3d 682 (2006). ..........................................................................................8, 9, 11 United States v. Friel, 699 F.Supp.2d 328 (2010)...18 Wingard v. Exxon Co., 819 F.Supp. 497 (1992) .15 Winters v. New York, 333 U.S. 507, 515 (1948) .................................................. 9, 11 STATUTES A.B. 453. ................................................................................................................... 2 Nev. Const. art. IV 38 ................................................................1, 4, 5, 6, 8, 10, 15 Nev. Const. art. VI 2 .............................................................................................. 6 Nev. Const. art. XIX 2 ........................................................................................... 6

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Nev. Rev. Stat. 453A, 453A.200, 453.300 .......................................................passim U.S. Const. amend. XIV, 1 .................................................................................... 7 21 U.S.C. 812 (2007).....14, 15 21 U.S.C. 903 (2007) .15 SECONDARY SOURCES Susan R. Klein, Independent-Norm Federalism in Criminal Law, 90 Cal. L. Rev. 1541, 1564 (2002) ......15 Bureau of Alcohol, Tobacco, and Firearms, State Laws and Published Ordinances Firearms (28th ed. 2007)...17 http://politicalticker.blogs.cnn.com/2012/12/14/obama-enforcing-pot-laws-instates-that-have-legalized-it-not-a-toppriority/.................................................................................................................. 18

MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS AND PROCEDURE On two separate occasions in the last decade, Nevada voters endorsed access to medical marijuana. In 1998, a majority of Nevadans first voted on and approved a Constitutional amendment to provide access to medical marijuana. 2 This amendment to the constitution took effect after a second approval of voters in 2000, and amounts to a right guaranteed by Article IV, 38 of the Constitution of the State of Nevada. Section 38 reads as follows:

Sec. 38. Use of plant of genus Cannabis for medical purposes. 1. The legislature shall provide by law for: (a) The use by a patient, upon the advice of his physician, of a plant of the genus Cannabis for the treatment or alleviation of cancer, glaucoma, acquired immunodeficiency syndrome; severe, persistent nausea of cachexia resulting from these or other chronic or debilitating medical conditions; epilepsy and other disorders characterized by seizure; multiple sclerosis and other disorders characterized by muscular spasticity; or other conditions approved pursuant to law for such treatment. (b) Restriction of the medical use of the plant by a minor to require diagnosis and written authorization by a physician, parental consent, and parental control of the acquisition and use of the plant. (c) Protection of the plant and property related to its use from forfeiture except upon conviction or plea of guilty or nolo contendere for possession or use not authorized by or pursuant to this section. (d) A registry of patients, and their attendants, who are authorized to use the plant for a medical purpose, to which law enforcement officers

Ballot Initiative No. 9, November 3, 1998. Official Results at: http://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/1998.pdf

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may resort to verify a claim of authorization and which is otherwise confidential. (e) Authorization of appropriate methods for supply of the plant to patients authorized to use it. 2. This section does not: (a) Authorize the use or possession of the plant for a purpose other than medical or use for a medical purpose in public. (b) Require reimbursement by an insurer for medical use of the plant or accommodation of medical use in a place of employment. [Added in 2000. Proposed by initiative petition and approved and ratified by the people at the 1998 and 2000 general elections.] In 2001, the Nevada Legislature passed AB 453, which became codified as NRS 453A. Through this enactment, the legislature fundamentally constrained viable access to constitutionally approved medical marijuana. According to AB 453: this billestablishes a procedure for distribution of medical marijuana through a registry identification card system. The bill directs the State Department of Agriculture to establish and maintain a registry identification card system whereby cards are issued to persons who meet the requirements of having such medical conditions and submit an application to the department.3 The Legislation does not describe any other method by which citizens may access medical marijuana. Instead, through enacting NRS 453A.200, the legislature effectively constricted any real supply or distribution system from emerging. Even a person possessing a valid state registry identification card will face prosecution, if he or she collectively possesses, delivers or produces more Appellants Appendix (hereafter AA) at 139. This summary of Legislation was initially attached as Exhibit A of Defendants Reply to the States Opposition to Defendants Motion to Dismiss.
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than (1) one ounce of usable marijuana; (2) three mature marijuana plants; and four immature marijuana plants. NRS 453A.200 (3)(b). This scheme is further complicated by the statutory prohibition on the exchange of consideration for the delivery of medical marijuana, regardless of whether the recipient lawfully holds a registry identification card. NRS 453A.300(1)(f). One can hardly envision a production system that would satisfy these requirements and remain viable. Respondents Nathan Hamilton and Leonard Schwingdorf owned and operated a non-profit medical marijuana dispensary in Las Vegas, Nevada. The dispensary was registered with the Secretary of State and was funded by donations from its members. All members of the co-op dispensary had obtained medical authorization to receive medical marijuana and had also obtained State authorized medical marijuana cards. As part of a sting operation, an undercover detective became a member of the dispensary operated by Respondents. After Hamilton and Schwingdorf properly verified the detectives registration card, the undercover detective then obtained marijuana from the co-op. Hamilton and Schwingdorf were arrested and charged with multiple counts of sale, trafficking and possession of a controlled substance. Hamilton and Schwingdorf filed a motion to dismiss the charges on the grounds that the statute controlling the access and distribution of medical marijuana, NRS Chapter 453A was vague and overbroad. The District 3

Court ruled in favor of Respondents motion and held that NRS Chapter 453A falls shortin providing a realistic manner in which a qualified purchaser and a qualified distributor of marijuana may function, thus frustrating the clear intent of the Nevada Constitution Amendment, Article IV, Section 38.4 The Court also held that NRS Chapter 453A does not further but rather frustrates the constitutional mandate to reasonably provide a method for lawfully obtaining medical marijuana.5 There is no practical way to obtain medical marijuana in the State of Nevada. Respondents were prosecuted for behavior that is constitutionally protected. NRS Chapter 453A, and more specifically NRS 453A.200 and 453A.300, criminalize reasonable efforts to obtain medical marijuana. Further, the statutory scheme fails to explicitly warn of what is criminal, thereby rendering it unconstitutional. SUMMARY OF ARGUMENT (1.) NRS 453A.200 and 453A.300 frustrate the mandates of the Nevada State Constitution Article IV, Sec. 38. (2.) NRS 453A.200 and 453A.300 are unconstitutionally vague. These provisions fail to provide ordinary people sufficient notice regarding the

AA at 168 AA at 167 4

potential criminality of their exercise of the constitutionally protected right to access medical marijuana. (3.) NRS 453A.200 and 453A.300 are unconstitutional because they authorize and/or encourage arbitrary and discriminatory criminal enforcement. (4). The State Cannot Justify the Vagueness of NRS Chapter 453A, Based on an Alleged Conflict With Federal Mandates.

STANDARD OF REVIEW The determination of whether a statute is constitutional is a question of law, which this court reviews de novo. Flamingo Paradise Gaming LLC v. Chanos, 125 Nev. 502 (2009). Where a District Court deniesrelief in the absence of any factual dispute, the Supreme Court reviews this order de novo. Nevadans for Nev. V. Beers, 122 Nev. 930 (2006). ARGUMENT
I.

NRS 453A.200 and 453A.300 Unconstitutionally Conflict with the Constitution of the State of Nevada, Article IV, Sec. 38. On November 7, 2000, Nevada voters overwhelmingly endorsed a

constitutional amendment allowing for the medicinal use of marijuana and requiring the state legislature to provide for methods of supply for authorized

users. The legislature responded to the mandate by codifying NRS Chapter 453A, a statute that prohibited the delivery of marijuana for consideration and refused to establish any discernible or practical method of supply. NRS 453A.200 and 453A.300 fail to implement an appropriate method of supply for medical marijuana, and in fact criminalize any viable or practical means of supply. Thus, the district court was correct in finding that NRS Chapter 453A frustrat[ed] the clear intent of the Nevada Constitutional Amendment, Article IV, Section 38, and was therefore unconstitutional.6 NRS Chapter 453A was supposedly enacted to implement the constitutional amendment that st ates, The legislature shall provide for the use of medical marijuana by patients and the authorization of appropriate supply of the plant to patients auth orized to use it. Nev. Const. Art. IV, 38(1)(a),(e) [emphasis added]. However, not only did the statute fail to implement a viable method of supply for medical marijuana, which was its directive, it criminalized any practical means for a legally registered Nevadan to exercise their constitutional right.7 The Nevada Constitution, Article XIX, Section 2 gives the people the power to propose and enact amendments to the Nevada Constitution. Nev. Con.
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Appellants Appendix at 168. Judge Mosleys Finding of Fact. Conclusions of Law. And Order Declaring NRS 453A Unconstitutional and Granting Defendants Motion to Dismiss All Charges with Prejudice. 7 N.R.S. 453A.200(3)(b), 300(1)(f) (only allows for a patient to collectively possess, deliver or produce marijuana in an amount equal or less to 1. one ounce of usable marijuana; 2. 6

Art. XIX, 2. Additionally, the Nevada Supreme Court has recognized that voters have the right to change the states laws through ballot proposals. Nevadans for the Protection of Property Rights, Inc. v. Heller, 122 Nev. 894, 912, 141 P.3d 1235, 1247 (2006). The written Constitution, and in turn its accompanying

amendments, enjoy a status superior to legislative enactments that are akin to fundamental or organic law. Id. at 914-15, 1248-49. It follows that the supremacy of the Nevada Constitution over the state legislatures whims is analogous to the supremacy of the United States Constitution over federal statutes.8 By enacting NRS Chapter 453A in its current form, the Nevada Legislature unconstitutionally frustrated the will of the people and the Nevada Constitution. The legislature may not enact statutory provisions that effectively eviscerate constitutional rights. Courts seek to avoid interpretations that yield unreasonable or absurd results. J.E. Dunn Northwest, Inc. v. Cours Const. Venture, LLC, 249 P.3d 501, at 506 (2011). By criminalizing any practical means of delivery or supply, the legislature clearly counteracted the purpose of the Nevada Constitution and the will of the people of Nevada.
8

As a result, NRS 453A.200 and

U.S. Const. Art. VI cl. 2 (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding). 7

453A.300 are unconstitutional. However, 453A.200 and 453A.300 of the Nevada Revised Statutes are severable. These specific sections should be deemed unconstitutional and stricken from the statute so that the intent of the public in exercising its constitutional authority can be put in to effect.
II.

NRS 453A.200 and 453A.300 are Unconstitutionally Vague Because They Fail to Provide Ordinary People Sufficient Notice Regarding the Exercise of Their Constitutionally Protected Right to Access Medical Marijuana This Court should affirm the District Courts ruling that NRS Chapter 435A

is void for vagueness. The statute does not provide individuals with sufficient notice that an otherwise legal activity, distribution of marijuana to authorized individuals, is in fact a criminal offense. Nev. Const. art. IV, 38. The void-for-vagueness doctrine operates to eliminate statutes that are repugnant to the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Silvar v. Eighth Judicial Dist. Court Ex rel. County of Clark , 122 Nev. 289, 293, 129 P.3d 682, 684-85 (2006). A statute is deemed

unconstitutionally vague when 1) it fails to provide sufficient notice to a person of ordinary intelligence of what is prohibited, and 2) it lacks specificity, which encourages or fails to prevent arbitrary or discriminatory enforcement. Flamingo Paradise Gaming, LLC v. Chanos 124 Nev. 502, 510, 217 P.3d 546, 551-52 (2009). Though challenged statutes are presumed valid, statutes warrant higher

scrutiny when they result in criminal penalties as opposed to civil penalties. Id. at 512, 553. The first prong of the void-for-vagueness doctrine is met when a statute does not provide adequate notice as to what is forbidden. Silvar, 122 Nev. at 293, 685. The Supreme Court has held that individuals seeking to operate within the law are entitled to be informed as to what the State commands or forbids. Lanzetta v. New Jersey, 306 U.S. 451, 53 (1939), quoted in Papachristou v. City of Jacksonville. 405 U.S. 156, 162 (1972). Likewise, the Nevada Supreme Court has held that a statute may be held unconstitutionally vague if it imposes criminal sanctions on otherwise non-criminal activity. Sheriff, Washoe County v. Burdg., 118 Nev 853, 857, 59 P.3d 484, 486-87 (2002). Essentially, individuals should not be frustrated in their attempts to conform their conduct to the contours of the statute. Silvar, 122 Nev. at 293, 685. People should not be expected to guess at the meaning of a statute. Winters v. New York, 333 U.S. 507, 515 (1948) The district court was correct in finding NRS Chapter 453A

unconstitutionally vague. Since NRS 453A.200 and 453A.300 carry criminal penalties, the statute warrants high scrutiny in a vagueness analysis. Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502 (2009) Analyzed under the first Flamingo prong, NRS 453A.200 and 453A.300 fail to provide a person of ordinary intelligence sufficient notice as to whether an 9

act violates the statute.

NRS Chapter 453A deems the use of marijuana

appropriate for several medical conditions, provides for a state regulated registry system, which includes registration fees and registration cards, and allows for the possession, delivery, and production of medical marijuana. Despite this elaborate regulatory scheme and apparent legalization of medical marijuana use, the statute prohibits the delivery of marijuana for consideration. NRS 453A.300(1)(F). The otherwise non-criminal act of possession, delivery, and production of marijuana to validly registered individuals results in criminal sanctions, simply because the product is not given away for free. To further complicate the statute, the term that results in the potential for criminal prosecution, consideration, is left undefined. A person of ordinary intelligence would likely be unaware of how medical marijuana could be guaranteed by the Constitution,9 recommended by a physician, regulated by the State Department of Agriculture, and recognized to have a medicinal purpose, but is not made available without some form of exchange, fee, or donation. The statute itself recognizes that those given registry cards likely suffer from debilitating

Nevada Constitutional Amendment Article IV, Sec. 38 (states The legislature shall provide by law the authorization of the use medical marijuana with proper registration and appropriate methods of supply). 10

diseases. 10 In many cases, the individuals medical condition prevents selfcultivation of marijuana. A person of ordinary intelligence would not be able to ascertain a viable method to comply with the conflicting statutory and constitutional provisions. Furthermore, failing to define the term consideration leaves a person of ordinary intelligence and training without an idea of what can or cannot be exchanged for medicinal marijuana. The statute does not give direction as to what is expected of growers and distributors. If a person of ordinary intelligence satisfies the entire statutorily defined process of obtaining a marijuana id card, procuring medical authorization and seeking medical marijuana from a legally licensed and operated dispensary, the person will readily assume that some form of payment or donation needs to be made to receive a product. By failing to define consideration, the Legislature left access to medical marijuana in a regulatory quagmire. A person of ordinary intelligence cannot follow the mandates of the statutory scheme and still exercise their constitutionally protected legal right in any practical fashion. Therefore NRS 453A.200 and 453A.300 are unconstitutionally vague.

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See NRS 453A.050 (defining the Chronic or debilitating medical conditions that warrant medical marijuana usage, such as acquired immune deficiency syndrome, cancer, glaucoma, among others). 11

III.

NRS 453A.200 and 453A.300 are Unconstitutionally Vague Because they Authorize and/or Encourage Arbitrary and Discriminatory Enforcement.

The second prong of the void-for-vagueness doctrine is met when a statute fails to provide law enforcement with enough specificity or minimal guidelines, which leads to arbitrary or discriminatory enforcement. See Winters v. New York, 333 U.S. 507 at 515-16; Sheriff, Washoe County v. Burdg., 118 Nev. at 857; Silvar, 122 Nev. at 293. For example, when statutory language fails to specify circumstances in which a person can be arrested, a statute may be held unconstitutionally vague. Silvar v. Eighth Judicial Dist. Court, 122 Nev. at 295. Under such circumstances, law enforcement has too much discretion to define its own guidelines for arrest, which can potentially lead to absurd results. Id. Though the Court does not impart impossible standards for statutory language, the Court mandates that statutes employ linguistic precision when possible or practical. Kolender v. Lawson, 461 U.S. 352, 361 (1983). NRS 453A.200 and 453A.300 meet both prongs of the void-for-vagueness test. The statute meets the second prong of the void-for-vagueness doctrine by lacking specificity, which encourages or fails to prevent arbitrary or discriminatory enforcement. The statute leaves a key term, consideration,

undefined which could lead to potential prosecution, and in the case of

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Respondents, actual prosecution. Blacks Law Dictionary defines consideration as: consideration, n. (16c) 1. Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. Furthermore, there are 47 other entries in Blacks Law Dictionary that expand and/or narrow the definition of consideration based on different legal contexts the term may be used in. It is unrealistic and absurd to expect a person of normal intelligence to know the complex definitions and uses of the term consideration. As such, the term consideration carries with it several meanings, and law enforcement is given the power to define the term as it sees fit with no standard to follow. This power becomes especially problematic when the ambiguous term is preceded by the qualifier, any, resulting in an even greater potential for discriminatory or arbitrary enforcement. Law enforcement could potentially target an individual that exchanges medicinal marijuana for the cost of growing the plant, obtaining seeds, providing a storage container, driving to obtain or deliver the product, or other related expenses, and deem the otherwise legal, state regulated transaction as criminal. Essentially, an individual may be prohibited from breaking even by accepting donations for costs. This ambiguity and lack of

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specificity permits law enforcement officials to make arbitrary or discriminatory judgments on arresting individuals who are seemingly complying with the law. This leads to impermissibly absurd results. J.E. Dunn v. Corus Const. 249 P.3d at 506. Furthermore, without a standardized definition, there is the potential for even more arbitrary enforcement because each officer is left to determine on their own what the definition of consideration is. Allowing individual officers to define what a criminal act is without any further guidance from the law is absurd and leads to completely discriminatory enforcement. As a result, NRS 453A.200 and 453A.300 are unconstitutionally vague and the District Courts ruling should be upheld.
IV.

The State Cannot Justify the Vagueness of NRS 453A.200 and 453A.300, based on an Alleged Conflict with Federal Mandates. The State asserts that the vagueness surrounding NRS 453A.200 and

453A.300 stemmed from the Legislatures desire to avoid invalidation of the statute on the grounds of federal preemption. The State argued Defendant fails to appreciate the tight rope the law makers had to walk in drafting this legislation. The referendumdirected the elected officials to draft legislation in direct opposition of federal law.11 As discussed below, it is clear that the referendum did no such thing. The Nevada legislators acted within proper boundaries of both state and federal laws.
11

AA78. 14

The possibility of federal preemption does not provide justification for the passage and enforcement of an unconstitutionally vague criminal statute. Under current Federal law, marijuana is classified as a Schedule 1 substance under Title 21 of the United States Code Controlled Substances Act. Controlled Substances Act 812(c)(c)(10), 21 U.S.C. 812 (2007). As such, any possession of marijuana is ostensibly a federal crime. Nonetheless, one must stress that the CSA and the NRS Chapter 453A set different standards of conduct under federal and state law. In fact, the preemptive reach of all federal prohibitions is necessarily limited by the sovereignty retained by the states in our federalist system of government. As it stands, NRS Chapter 453A does not conflict or raise any issues with federal law. NRS 453A merely creates an exception from state prosecution for individuals who are properly prescribed access to medical marijuana. 12 Federal preemption begins with an examination of congressional intent, and there is a strong presumption against preemption. Wingard v. Exxon Co., 819 F.Supp. 497 at 501 (1992). The federal Controlled Substances Acts (CSA) antipreemption clause demonstrates Congresss intent not to preempt state drug laws
12

In her article Independent-Norm Federalism in Criminal Law Professor Susan Klien argues that the courts must rein in federal power when Congress passes a law that bans an activity that some states allow, such as the use of medical marijuana. Professor Klien further reasons that without the Courts protection, independent state norms would disappear. Susan R. Klein, Independent-Norm Federalism in Criminal Law, 90 Cal. L. Rev. 1541, 1564 (2002) (When a state chooses to pursue an independent moral norm and makes that choice clearif this behavior is criminalized federallythe behavior will be chilled.) 15

unless there is a positive conflict between the CSA and the state la w such that they cannot stand together. 21 U.S.C. 903. Nevada law, through NRS Chapter 453A, legally exempts individuals from state prosecution. Removing state prosecution for an activity does not conflict with federal behavior or requirements. It is clear that Congress intended to leave regulation of controlled substances in the hands of the states. Article IV, 38 of the Constitution of the State of Nevada permissibly allows for possession and use of medical marijuana, codified through NRS Chapter 453A. These Nevada laws simply create an exemption from state prosecution for individuals with medical marijuana. Nothing in these statutes elicit a positive conflict between state law and the federal CSA. Since the NRS Chapter 453A and the Controlled Substances Act can stand together, it is clear that the Nevada medical marijuana laws would not be preempted by federal laws. Since Nevada legislators did not need to worry about federal preemption when drafting NRS Chapter 453A, the State cannot argue that there is an excuse for the unconstitutional provisions, NRS 453A.200 and 453A.300. The Supreme Court has recognized that even in areas where Congress has the authority to pass federal laws prohibiting or requiring certain acts, the anticommandeering principle of the Tenth Amendment prohibits Congress from compelling the states to use their own laws and officials to enforce federal law or implement federal policy objectives. New York v. United States, 505 U.S. 144 16

(1992)13 Printz v. United States, 117 S.Ct. 2365 at 2373 (1997) (state legislatures are not subject to federal direction). The Supreme Court has held time and time again, that the Tenth Amendment anti-commandeering principle mandates that Congress cannot direct states themselves to act. In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. New York at 166. Internal citations omitted. The Federal Government cannot direct the State of Nevada to criminalize medical marijuana users, much as the federal government cannot criminalize other controversial practices that the United States Congress has sought to restrict or ban. For example, several states now recognize same-sex marriages and allow possession of firearms that Congress has sought to

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Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders. Id. at 188 17

ban or restrict.14 The States argument in support of NRS 453A.200 and 453A.300 regarding the narrow actions taken by the Nevada State Legislature are illogical and should not be given weight. NRS Chapter 453A exempts individuals from state prosecution for the possession of marijuana; it does not, and could not, address federal prosecution for marijuana possession or use. State and federal criminal laws, penalties and schemes, occupy different spheres. The Nevada Legislature need not consider the possibility of federal prosecution when creating a regulation to govern the constitutionally allowed practice of the usage of medical marijuana. If the Federal Government attempts to directly regulate the States, the Tenth Amendment requires recognition that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner. Hodel v. Virginia Surface Min. and Reclamation Assn Inc. 452 U.S. 264, 287 (1981). The federal government could not have directed or threatened the Nevada legislature to
14

See, e.g., Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 959 (Mass. 2003) (recognizing state constitutional right to same-sex marriage and noting the Massachusetts Constitution is more protective of personal freedoms than is the federal Constitution); Bureau of Alcohol, Tobacco, and Firearms, State Laws and Published Ordinances Firearms (28th ed. 2007) (composition of state laws pertaining to firearms, including state laws that allow the possession and transfer of certain firearms proscribed by federal law). 18

criminalize the use of medical marijuana and the State cannot argue to the contrary. The argument that the Nevada Legislature allowed for discriminatory enforcement of a vague statute that criminalizes unspecified actions based on an unfounded fear of federal prosecution is absurd. In fact, in November of 2012, both Colorado and Washington legalized the use of recreational marijuana. 15 President Obama has since stated that the prosecution of marijuana cases is not a top priority, and has directed federal attorneys to not prosecute possession cases under Federal law. Id. In fact, the Obama Justice Department announced thatthe Department may no longer prosecute medical marijuana usersin states where the medical use and sale of marijuana is lawful as a matter of state law. United States v. Friel, 699 F.Supp.2d 328 (2010) (discussing Memorandum from David W. Ogden, Deputy Attorney Gen. U.S. Dept of Justice, 2009) The States argument should not be given weight and the District Courts ruling should stand. CONCLUSION The sovereignty of the people demands that there should not be a disconnect between constitutional mandates and statutory efforts at implementation. It is fundamental that when a constitutional provision and a statute are in conflict, the constitutional provision prevails. For the reasons stated
15

http://politicalticker.blogs.cnn.com/2012/12/14/obama-enforcing-pot-laws-instates-that-have-legalized-it-not-a-top-priority/ 19

above, the District Court decision must be upheld, NRS 453A.200 and 453A.300 should be stricken, and the relief sought by Appellants should be denied. Dated this 18th day of March, 2013.

By: /s/ Katrina Ross Katrina M. Ross Staff Attorney ACLU of Nevada Nevada Bar No. 12635 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 ross@aclunv.org

By: /s/ Allen Lichtenstein Allen Lichtenstein General Counsel ACLU of Nevada Nevada Bar No. 3992 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 lichtenstein@aclunv.org

By: /s/ Staci Pratt Staci J. Pratt Legal Director ACLU of Nevada Nevada Bar No. 12630 601 S. Rancho Dr. Suite B-11 Las Vegas, NV 89106 Phone (702) 366-1536 Fax (702) 366-1331 pratt@aclunv.org

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the formatting requirements of NRAP 32(a)(4), the typeface requirement of NRAP(a)(5) and style requirements of 20

NRAP 32(a)(6) because this brief was prepared in a proportionally spaced typeface using Microsoft Word in 14 font Times New Roman type style. I further certify that this brief is currently subject to the page limitations of NRAP 29(e) and NRAP 32(a)(7). I understand that this brief exceeds the page limitation, however we currently have a motion to extend the page size pending before the court. Finally, I hereby certify that I have read this brief, and to the best of my knowledge, information and belief, it is not frivolous or interposed for any improper purpose. I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page number, if any, of the transcript or appendix where the matter relied on is to be found. I understand that I may be subject to sanctions in the event that accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure. Dated this 18th day of March, 2013

/s/ Katrina Ross, NV Bar 12635 ACLU of Nevada

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CERTIFICATE OF SERVICE I hereby certify that on the 18th day of March, 2013, I caused to be served a true and correct copy of the Brief of Amicus Curiae American Civil Liberties Union of Nevada Supporting Respondents through the Nevada Supreme Courts electronic filing system to all of the parties listed below:

/s/ Tamika Shauntee General Counsel ACLU of Nevada

Steven Owens Clark County Chief Deputy District Attorney 500 S Grand Central Pkwy 5th Floor Las Vegas, NV 89155 Catherine Cortez Masto Nevada Attorney General 100 North Carson Street Carson City, NV 89701 Attorneys for Appellants

Robert M. Draskovich John Million Turco Gary A. Modafferi Turco & Draskovich, LLP. 815 S Casino Center Boulevard Las Vegas, NV 89101 Attorneys for Respondents

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