By Judge Mary Celeste
As of today, 10 states have passed recreational marijuana laws along with 33 states that have some form of medical marijuana laws. Over 95% of the U.S. population now has access to marijuana.[i] With each passing of these laws comes the same debates and concerns. Will their passage increase youth marijuana use? Will the roadways become more dangerous with an increase in driver marijuana? Will the courts see an increase in marijuana-related cases? Can an employee be fired for medical marijuana use? The changes in science, data, statistics and laws are happening at a rapid pace.
All the while, some states and cities decriminalize marijuana; some states move from CBD only to full blown medical marijuana; some states go from medical marijuana to recreational marijuana; and some states continuously modify their existing marijuana laws as new information comes forward. Those who follow the legal issues resulting from these swiftly changing laws need available resources and information — especially if they are attorneys with a focus in the field.
The “field” of marijuana law is enormous and growing every day. As more marijuana laws pass, more prospects for business rise. The growers, distributors, transporters, retailers and leaseholders all need legal advice and legal documents.
Enter the attorneys who must abide by their attorney state rules, regulations and ethical considerations as they go forward and assist these business entrepreneurs with an understanding of marijuana rules and regulations. Although contract law flourishes with these ventures, it has its nuances. For example, provisions in leases must be carefully crafted to protect the lessor against things like water damage, mold and strains on electrical systems. Another caveat is whether an insurance policy on the leasehold covers events related to damages caused by a marijuana business.
On the tort front, there are potential civil RICO actions against cultivators, along with private and public nuisance actions. Domestic relations cases are also growing in the courts. Dependency and neglect cases are addressing whether the use of medical marijuana by parents endangers or harms their children and whether marijuana use can impact parental custody and visitation. Although there is a movement to decriminalize small amounts of possession of marijuana, there still remains criminal actions for larger amounts of possession with intent to distribute, as well as criminal RICO actions, driving under the influence of marijuana, child abuse for use in front of children, money laundering actions, criminal and civil forfeiture actions, and, growing fourth amendment search and seizure issues.
The fourth amendment is but one constitutional implication. Due to the schism between the states and the federal government on the legalities of marijuana, the supremacy clause, the commerce clause and the tenth amendment are also implicated. It does not stop there. The first amendment free speech, freedom of religion, right to bear arms, right to travel, fifth amendment self-incrimination, eight amendment cruel and unusual punishment and even double jeopardy are also involved.
Employment law is one of the areas most impacted. Statutory schemes, medical marijuana law and developing caselaw are creating a mishmash of positions on whether employers may test for marijuana. That is includes when and how they can test, whether an employee may be terminated for medical marijuana use and whether the qualifying medical conditions that warrant the use of medical marijuana may serve as a disability under the American with Disabilities Act. Whether an employee may collect unemployment or worker’s compensation related to marijuana use also comes into question. The answers to these questions depend upon the state and, in some instances, the city. By way of example, New York City Council recently enacted a bill banning pre-employment testing for marijuana use.[ii]
Then there are the percolating issues for judges and the courts. May a medical marijuana user use marijuana while on probation, parole or pretrial release? May medical marijuana users be eligible for drug and dui courts? There are plenty of issues to keep attorneys busy, but where do these attorneys go to educate themselves in order to safely practice law in this field? A few suggestions include: continuing legal education classes and seminars; seek out the marijuana boutiques’ law firms for mentorship; take webinars and webcasts. You may also wonder, do professional liability insurance policies cover the attorney as they are on the learning curve?
The good news is that law schools, universities and colleges are aware of this growing field and are offering classes. “Accredited schools including University of Vermont and Ohio State University have started offering courses on the biology and use of marijuana as well as legal issues around it. Credit and non-credit course available…”[iii] Six colleges offer an MBA in marijuana business management or law.[iv] This topic is of growing interest in law schools, as it should be. Vanderbilt University Law School course titled “Marijuana Law and Policy” is among a growing number of law school classes to take on the subject. At University of Denver Sturm College of Law, a professor will teach “Representing the Marijuana Client.” and at Santa Clara University School of Law there will be a “mini think tank” about the legal matters California will face as the state legalizes marijuana for recreational use.
This spring, I had the privilege of teaching the first Marijuana
and the Law class at my Alma-Ata California Western School of law to upper
division, enthusiastic law students. With more law school courses popping up
and legislation constantly evolving, it’s clear marijuana law is indeed a new
body of law.
[i] https://newfrontierdata.com/wp-content/uploads/2015/11/MJ-by-the-numbers-FINAL.pdf
[ii] https://www.wilsonelser.com/news_and_insights/insights/3402-new_york_city_council_passes_bill_banning
[iii] https://www.forbes.com/sites/julieweed/2017/09/02/physicians-and-budtenders-taking-cannabis-classes-this-fall/#515214574429
[iv] https://www.inquisitr.com/1842805/mba-in-marijuana-six-colleges-now-offer-courses/