Sunday, March 6, 2016

Judge Wolke’s ruling in my lawsuit

Judge Wolke sent his ruling letter in gray print:, so I transcribed it below for easier reading. I put "(sic)" after errors of spelling, quoting, or citation; but not after misplaced punctuation.          

Under the letterhead of the Oregon Judicial Department, Josephine County Circuit Court, addressed to attorneys Eric B. Mitton, attorney for defendant, and Andrew DeWeese, Attorney for plaintiff:

Re: Rycke Brown vs. The City of Grants Pass, Josephine County Circuit Court Case No. 15CV26821

Dear Counsel:

Each party has made motions for summary judgment.
Plaintiff’s argument is that the City’s outdoor regulation of marijuana plants is pre-empted by the “Seed Bill” and specifically ORS 633.738(2), in that marijuana is either a nursery seed or flower seed.

Flower seed is defined in ORS 633.511(6) as follows:

“Flower seed” means seeds of herbaceous plants grown for their blooms, ornamental foliage or other ornamental parts, and commonly known and sold in this state under the name of flower or wildflower seeds.

Homegrown marijuana is not grown for its blooms or ornamental value, and therefore is not covered by this definition.

Next, plaintiff argues that, if not a flower seed, homegrown marijuana is a “nursery seed.”

Although the legislature defined marijuana as a “propagent” (sic) of nursery stock for the purposes of ORS 475.300-475.346, now ORS 475B.400-475B.520 (i.e. medical marijuana), that is all they have done.

The question for this case is whether ORS 633.738(2) pre-empts the City’s regulation of up to 4 homegrown marijuana plants (hereinafter referred to as “home grows”) as allowed by ORS 475B.245 et Seq.

ORS 475B.245 begins with a long list of state regulations that do not apply to home grows, which the Court believes is inconsistent with the notion that the state desires to be the sole regulator in this area.  For example, the power of the OLCC to police marijuana does not apply to home grows (ORS 475B.040, et seq.).

In order for home grows to be included within the pre-emptive effect of ORS 633.738(2), their inclusion would have to be consistent with the express legislative intent of the “Seed Bill” contained in ORS 633.733(2), to wit:

           “The Legislative Assembly finds and declares that:
(a) The production and use of agricultural seed, flower seed, nursery seed, and vegetable seed and products of agricultural seed, flower seed, nursery seed, and vegetable seed are of substantial economic benefit to this state.
(b) The economic benefits resulting from agricultural seed, flower seed, nursery seed, and vegetable seed and seed product industries in this state make the protection, preservation, and promotion of those industries a matter of statewide interest that warrants reserving exclusive regulatory power over agricultural seed, flower seed, nursery seed, and vegetable seed to the state...”  (Emphasis added)

The first question, is whether or not home grows constitute a “substantial economic benefit to the state”?  Economic benefits, or detriments, may be internal or external.  There may be a very slight internal benefit to the home grower, because his/her net growing costs may be less than the purchase price of comparable marijuana (though the government is deprived of their tax revenue as a result).  The Court believes that there may be significant external detriments related to outdoor home grows.  The most apparent negative externality is the effect of home grows on neighbors in close proximity, who rightfully regard their home equity as their most important investment.  This Court believes that some neighbors would regard a healthy outdoor grow, in close proximity to their backyard, as decreasing the value of their own property.  Judging by the language of the City’s ordinance, that concern appears to be part of the rationale for GPMC 5.72.030.
Likewise, home grows, by definition, are not “industries”.  ORS 475B.015(8) defines homegrown and homemade as follows:

“Homegrown or homemade means grown or made by a person 21 years of age or older for non-commercial purposes.” (Emphasis added)

Next, this court does not find support in ORS 571.005(5) for the proposition that four marijuana plants allowed by ORS 475B.245(1) are included in the definition of “nursery stock”  Again, the legislative intent for this statutory scheme is found in ORS 571.015[:]

“The Legislative Assembly finds and declares that the propagation and raising of nursey (sic) stock is an agricultural pursuit that should be regulated and assisted by the State Department of Agriculture” (Emphasis added)

The Court does not believe that raising four marijuana plants is an agricultural pursuit and that the State desires to regulate such grows with its Department of Agriculture.

An agricultural pursuit can be a narrow as growing a plant; or as broad as growing or raising plants or animal for a living.  In the context of the remainder of the remainder of ORS 571.005 et seq., the Court believes that an agricultural pursuit is one with the hope of an economic reward.  Since the home growers have already been excluded from regulation by the OLCC (while other types of marijuana enterprises are regulated by the OLCC), it would be puzzling if this narrow and small slice of regulation has been assigned to the Oregon Department of Agriculture.

ORS 471.015(2) (sic—571.015(2)), goes on to list the extensive powers granted to the Oregon Department of Agriculture to regulate nursery stock (e.g. to inspect, to certify, to investigate and enforce).

Notably, these are some of the same types of powers that ORS 475B.245 expressly excludes from application to home growers.  To follow plaintiff’s argument, the Legislature has excluded home grows from license and enforcement by the OLCC; but has reinstated such licensing enforcement to the Department of Agriculture.

The definition of nursery stock is set forth in ORS 571.005(5) as follows:

“Nursery stock includes all botanically classified plants or any part thereof, such as floral stock, herbaceous plants, bulbs, buds, corms, roots, scions, grafts, cuttings, fruit pits, seeds of fruits, forest and ornamental trees and shrubs, berry plants, and all trees, shrubs and vines and plants collected in the wild that are grown or kept for propagation or sale.” (Emphasis added)
The question becomes, does the final modifier: “...that are grown or kept for propagation or sale” apply to all nursery stock, or just to: “...all trees, shrubs and vines plants collected in the wild...” (sic-"vines and plants")

This Court believes that this modifying phrase must apply to all nursery stock because to read the statute otherwise would mean that virtually all botanically classified plants in Oregon would be nursery stock, and by definition an agricultural pursuit, to be regulated by the State Department of Agriculture.  That is so because a grower of nursery stock is defined by ORS 471.005(4) (sic—571.015(4)), as: “Any person who grows nursery stock.”  That could lead to the unsettling scenario wherein a “nursery cop” might knock on this Court’s front door and demand to inspect the random madrone and oak trees; poison oak and blackberry bushes in my overgrown backyard, because I am a grower of nursery stock.

Clearly, citizens who have control over overgrown backyards are not engaged in an agricultural pursuit such as mentioned in ORS 571.015.  Therefore, this Court believes that the modifier: “...that are grown for propagation and (sic--or) sale”, applies to all nursery stock, and therefore excludes four home grown marijuana plants.

In summary, home grows are not included in the pre-emptive effect of ORS 633.738(2), because they are covered by the “Seed Bill”.  It is clear that the Legislature considers such grows as de minimus; not tax generating; not an agricultural pursuit (as mentioned in ORS 571.015); not grown for a commercial purpose (as mentioned in ORS 475B.015(8)); not grown for propagation or sale (as mentioned in ORS 571.005(5)); and therefore not included in the “Seed Bill”.

The City’s motion for summary judgment is granted; and the plaintiff’s motion for summary judgment is denied.  Mr. Mitton should draw up a consistent order.

Very truly yours,

Pat Wolke

Circuit Court Judge