Marijuana is flower and nursery seed

            

A marijuana seedling grown from "flower seed"

            In order to rule that homegrown marijuana is not protected by the Seed Bill, SB 863 (2013), Judge Wolke had to show that marijuana is not any of the seed crops listed in it.  We said that it fits in the categories of flower seed and nursery seed; the City and Judge Wolke said that it does not.

          The City’s attorney perhaps led Judge Wolke astray when he said at the hearing that the definition of flower seed was a “three-part test” and it did not fit all three parts.  Indeed, we were so taken aback by that argument that we did not even argue it, but moved on to nursery seed.  So in his ruling, Judge Wolke dismissed flower seed with this: 

          “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 seed.

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

But this is not a three-part test and Wolke does not say that it is; it has “or” between the last two parts, not “and.” Then comes the “and:” “and commonly sold in this state under the name of flower seed or wildflower seed.”

Marijuana is most certainly grown for its flowers, the most valuable part of the plant, with the most medicinal/recreational value.  “Blooms” in this definition is not modified by “ornamental” as “leaves” or “parts” are.  Petals are not necessary to the common definition of “bloom,” which is synonymous with “flower.”  And most flower and wildflower seed in this state are sold under their common names, not generic terms.

Perhaps Judge Wolke was misled by the term “buds,” commonly used to describe the flowers of marijuana because they have no petals and are packed tightly together the way immature flowers of broccoli and cauliflower are when harvested for vegetable use.  But saleable marijuana is mature flowers, even seeded in some cases. 

A big, fat clone (rooted cutting), newly planted.  I prefer smaller plants for best growth.

Most of Judge Wolke’s ruling is dedicated to showing that homegrown marijuana, in particular, is not “nursery seed.”  He starts right off admitting that the legislature defined marijuana as a “propagent” of nursery stock in medical marijuana regulations, but refuses to admit that homegrown is as well, though we are buying the same for our home gardens.

He starts with the legislative intent of the Seed Bill, which says that seed crops are of “substantial economic benefit” to the state and so the state seeks to protect those “industries” by reserving regulation of them to itself.  He plays down the economic benefit to homegrowers and does not recognize the benefit of homegrown production to the whole marijuana industry, other markets, or the legislature’s intent to suppress the black market, as homegrown would keep the price down.  Allowing local regulation of homegrown would work against all those benefits.

But his beliefs about the impropriety of excluding homegrown marijuana from most state and all local regulation (as is the case with all homegrown crops, except that the state actually regulates homegrown marijuana) is moot if it fits the actual definitions of either flower seed or nursery seed, so he tackles the definition of nursery stock:

“’Nursery stock includes all botanically classified plants or any part thereof, such as floral stock, herbaceous plants, bulbs, buds, corms, culms, 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 grow or kept for propagation or sale’ apply to all nursery stock or just to ‘...all trees, shrubs and vines plants collected in the wild...’”

          Judge Wolke immediately misquoted what he had just quoted, leaving out the “and” between “vines” and “plants.”  It is a very important “and,” as it separates “plants collected in the wild” from everything before it.  The final modifier, “that are grown or kept for propagation or sale” applies to “plants collected in the wild,” not to “all nursery stock” or non-wild “trees, shrubs and vines.”

         But he hangs his argument on that false question, and declares that the modifier must apply to all nursery stock, as otherwise, "virtually all botanically classified plants in Oregon would be nursery stock... to be regulated by the State Department of Agriculture,” raising the absurdity of a “nursery cop” knocking on his door because he is raising trees, vines, and shrubs in his yard.  Actually, the definition of nursery stock is followed by a list of major exceptions to it, but the Department of Agriculture does regulate most, if not all, plants grown commercially under other sections.  They don’t regulate home gardens; neither does the OLCC.

          Homegrowers can now legally propagate their own marijuana cuttings and are likely to as they have for decades, so homegrown marijuana would fit his faulty interpretation of the definition of nursery stock.  Regardless, it is obvious that homegrown marijuana is either flower seed or nursery seed, depending on whether it is propagated by seed or cuttings, and thus is protected by the Seed Bill from local regulations.  Therefore, Grants Pass Municipal Code 5.72.030, “Homegrown and Medical Marijuana,” is void in regard to homegrown marijuana. 

Medical growers will have to make their own case that the regulation in this code is not reasonable, but that is not difficult, with a definition of “indoors” that does not fit a house or any structure with windows and vague “signs of cultivation” that mostly have nothing to do with growing marijuana.  See “We are all living outdoors in Grants Pass.”

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html.

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html.
Read the Seed Bill at http://gardengrantspass.blogspot.com/2015/12/senate-bill-863-2013-is-two-statutes.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

The Core of Judge Wolke’s Ruling

          The core of Judge Wolke’s argument in ruling against us seems to be that he cannot believe that the state left homegrown cannabis unregulated by Oregon Liquor Control Commission (OLCC) and instead would have it regulated by the Department Of Agriculture, with no local regulation allowed.  But homegrown is not regulated by the Department of Agriculture; it is protected by it, through ORS 633.738, the Seed Bill, as with any other seed crop, like tomatoes or lettuce. 

Under Measure 91 and unchanged by the legislature, the homegrown exception to the OLCC licensing rules is regulated by the police, the DA, and the OLCC to the extent that, if one has too much cannabis or cannabis products to fall within the homegrown exception from OLCC regulation, one is subject to OLCC’s licensing regulations, starting with one’s lack of a license and the penalty for violating the rules by not having one.

This is exactly the same situation as with the other product that the Oregon Liquor Control Commission regulates, alcohol.  OLCC is a licensing and regulating agency for businesses; it does not regulate home brewing, winemaking, or liquor distilling, as long as a household stays within the 200 gallon household possession limit.  Nor does it permit local regulation of home production of alcohol.  Why should the state allow either for cannabis?

The state has good reason not to.  Judge Wolke dismisses the benefit that people get out of growing their own cannabis outdoors as a “slight” savings of money, offset by a drop in tax revenue, and puts it up against possible loss of property value for neighbours.  But he fails to see why the homegrown exception was allowed and even expanded by the legislature: because its competition keeps the price of cannabis and its products in the stores down, and thereby discourages the black market, which requires a restricted supply creating higher prices.  Homegrown cannabis thus benefits every consumer of cannabis.  Lower prices for cannabis and not having to buy it in stores also benefits producers and sellers of other consumer products because people aren’t spending as much money on it.  It even benefits legal sellers of cannabis, by making illegal selling not worth the risk.

But Judge Wolke’s reluctance to accept the state’s ban on local regulation of homegrown cannabis does not matter if it fits within the definition of seed crops in the Seed Bill that protects it, so he tries to define it as other than flower seed or nursery seed.  In our next article, we will refute his attempts to do so.

March 12, 2016 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  
Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Judge Wolke ruled; we will appeal

  

          Judge Wolke ruled against us, in favor of the City of Grants Pass.  We will appeal. 

          This plaintiff does not bring suit to go only halfway.  We knew from the start than any local judge is likely to find a way to rule for the city, having seen it happen too many times in the past.  

It is frustrating to see someone sue the city or the county and then drop it when a local judge obviously rules against state law.  This happened in the case of ex-Mayor Murphy appointing a quorum of our City Council after we recalled 5 of them, using a law that allowed him to appoint a single election official in order to call a special election if that official’s seat is vacant.  The previous Mayor Holzinger sued, and then pointed out Judge Baker’s conflict of interest after she ruled against him.  She was upheld by a Jackson County judge, and he dropped the case.

The interesting thing in that case was that she did not use the law Murphy cited for his authority; she just said that “exigent circumstances” allowed it, because we could not hold a special election for 6 months.  But another, authorized remedy lay within section 2 of that law.  It allowed the Board of County Commissioners to appoint a quorum if there were no councillors.  She could have ruled against Mayor Murphy, suggesting the remaining councilors resign and allow the Commissioners to appoint a quorum.

But Holzinger’s attorney did not see that remedy nor understand the reason for the law that Murphy was using, which appeared to be the possibility of a natural disaster killing a quorum of a City Council.  So Judge Baker did not have that remedy presented to her and did not have to consider it.  That was the same attorney I fired in my case before I hired a truly competent attorney out of Portland, who has won at least one appeal, Andrew DeWeese.

Mr. DeWeese works without a retainer, so I didn’t have to borrow more money to get him working on my case.  On February 22^nd, I paid him the $1925.00 raised at that point on GoFundMe and in person; I still owe him $2000 before the appeal.  We both believe that we will win on appeal and get those fees paid by the city, in which case the net funds over what I previously borrowed will be held for future homegrown defense. 

But we might not win, and neither of us wants me to be paying him and the city for their costs for the rest of my life, so please donate at GoFundMe.com/HomegrownDefense, or contact me below to donate by mail or in person.

March 12, 2016 protest leaflet.  Published on GardenGrantsPass.blogspot.com. 

Read the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Judge Wolke’s ruling in my lawsuit

Judge Wolke sent his ruling letter in gray print:  https://drive.google.com/file/d/0BwG6RgIEsBngSUZfM3hxdEU2Qjg/view?usp=sharing, 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

Senate Bill 863 (2013) is Two Statutes

A few months ago, before filing my lawsuit, an attorney gave me what I thought was the whole of Senate Bill 863, the Seed Bill, in ORS 633.738.  The City’s attorney, in answer to my complaint, is saying that the Seed Bill is only about GMOs, and doesn’t apply to marijuana.  But I found that there is another statute just before it, ORS 633.733, which is part of the same bill, and states their real intent: to stop local governments from interfering in the production and use of seed crops:

 633.733 Legislative findings regarding seed regulation. (1) As used in this section, “nursery seed” means any propagant of nursery stock as defined in ORS 571.005.

      (2) 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 and products of agricultural seed, flower seed, nursery seed and vegetable seed to the state; and

      (c) The agricultural seed, flower seed, nursery seed and vegetable seed and seed product industries in this state will be adversely affected if those industries are subject to a patchwork of local regulations. [2013 s.s.1 c.4 §2]

 633.738 Prohibition of local laws to inhibit or prevent production or use of seeds or products of seeds. (1) As used in this section:

      (a) “Local government” has the meaning given that term in ORS 174.116.

      (b) “Nursery seed” means any propagant of nursery stock as defined in ORS 571.005.

      (2) Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area or quarantine, to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed. The prohibition imposed by this subsection includes, but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.

      (3) Subsection (2) of this section does not prohibit a local government from enacting or enforcing a local law or measure to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed on property owned by the local government. [2013 s.s.1 c.4 §3]

       Note: Section 4, chapter 4, Oregon Laws 2013 (first special session), provides:

      Sec. 4. Section 3 of this 2013 special session Act [633.738] does not apply to any local measure that was:

      (1) Proposed by initiative petition and, on or before January 31, 2013, qualified for placement on the ballot in a county; and

      (2) Approved by the electors of the county at an election held on May 20, 2014. [2013 s.s.1 c.4 §4]

December 5, 2015 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Support the lawsuit at www.GoFundMe.com/HomegrownDefense 

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Fired a bad attorney; hired a good one

This is a tale of three attorneys:  one who wrote a poorly written complaint; one who failed to appreciate the crisis and opportunity this presented; and one who saw what needed to be done and took immediate action.

Just before Thanksgiving, I reread the complaint filed on my behalf, in the harsh light of the City’s response to it in their Answer and Counterclaim and their Motion for Summary Judgment and Oral Argument.  I now could see that it was lacking in research and statements of law, and was so broadly and loosely written as to be partly false.

When I know I’ve made a mistake, I stop making it.  I didn’t want this man to file another piece of paper on my behalf, not even a motion to withdraw, much less the answers to the City’s filings, both of which were due within days, by my calculations.

So I fired off an email with the three filings attached, to the attorney whom I figured I should have hired in the first place, asking if he could save my case.  He was probably already gone for Thanksgiving and would likely be out of contact until Monday.  So I spent much of Thanksgiving weekend reading rules of court and trying to figure out how to withdraw my attorney and go pro se (represent myself) in time to write and file those answers by Thursday and Friday. 

On a site called OregonCivPro.com, where they have searchable and easily readable rules, I saw an ad for the Oregon Cannabis Law Group and Andrew Deweese, the owner/builder of the site.  I sent him an email, asking for assistance in finding such rules, and saying I was interested in retaining him.

My first choice for new attorney replied late Monday morning that he’d have to read the filings I sent and would get back to me.  I sent him copies of the filings I’d done that day, withdrawing counsel and asking for a continuance.  Mr. Deweese sent an email late Monday afternoon and a text a few hours later, asking me to call him.  I arranged by text to call 11:00 AM Tuesday.

We had a good 25-minute interview, going over the case and his experience.  He said that he would contact the City’s attorney, say I was thinking about retaining him, and ask for an extension on the Answer to the 28-page Motion for Summary Judgment.  He would also send me his contract by email.

When I got home that night, I found: an exchange between him and the City’s Attorney, negotiating an extension until January 21^st; his “Engagement Letter,” which was both thorough and readable; and a reminder to file the answer to the Counterclaim by Friday, so as not to default.  I signed the contract 24 hours later, Wednesday night, and asked him to write the answer for me.

While my first choice for replacement attorney was reading my paperwork, Andrew Deweese saved my sanity and my case, before he was hired, for free.  He also trusts his clients to pay him, and so doesn’t ask for a retainer deposit.  He has earned my trust and the money he will make off my case.

December 5, 2015 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Support the lawsuit at www.GoFundMe.com/HomegrownDefense 

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com