Posted by:  Edmund R. Folsom

October 14, 2016

Maine Attorney General Janet Mills says passage of upcoming referendum Question 1, the Marijuana Legalization Act, will make it legal for children to possess and use marijuana.  Will it?  Section 2 of the Marijuana legalization Act expressly calls for repeal of 22 M.R.S.A. section 2383(1), the statute that sets forth the current civil offense of possession of a useable amount of marijuana.  Section 2383(1) states “Except as provided in chapter 558-C [the medical marijuana law], a person may not possess marijuana.”  Possession of less than 2 /12 ounces of marijuana is defined as possession of a “useable amount” and is punishable by a civil fine only.  If 22 M.R.S.A. section 2383(1) is repealed, possession of up to 2 ½ ounces of marijuana will no longer be a civil infraction, for anyone.  That is to say, possession of up to 2 ½ ounces of marijuana will be legal for all, unless there is some other law, not in conflict with the Marijuana Legalization Act, that makes it illegal.  Because possession of marijuana is not defined as a criminal offense unless a person possesses more than 2 ½ ounces (per 17-A M.R.S.A. section 1107-A(1)(F)), if 22 M.R.S.A. section 2383(1) is repealed, there will be no prohibition under Maine law against anyone possessing up to 2 ½ ounces of marijuana.

Wouldn’t it still be a juvenile offense for kids under age 18 to possess less than 2 ½ ounces of marijuana?  Currently, 15 M.R.S.A. section 3103(1)(B) makes it a juvenile crime for anyone under age 18 to possess marijuana.  That section of the Juvenile Code defines as a juvenile crime “The possession of a useable amount of marijuana, as provided in Title 22, section 2383.”  If 22 M.R.S.A. section 2383(1) is repealed, there will no longer be any provision in section 2383 pertaining to possession of a useable amount of marijuana, and it will no longer be a juvenile crime to possess less than 2 ½ ounces.  Again, that which is not illegal is legal.  If the Marijuana Legalization Act passes, it will be legal for kids under age 18 to possess up to 2 ½ ounces.

The Marijuana Legalization Act itself, in proposed 7 M.R.S.A. section 2452(1), states:  “A person 21 years of age or older may: (A) Use, possess or transport marijuana accessories and up to 2 ½ ounces of prepared marijuana; (B) Transfer or furnish, without remuneration up to 2 ½ ounces of marijuana…; [and] (D) Purchase up to 2/1/2 ounces of retail marijuana and marijuana accessories from a retail marijuana store” (as well as grow and possess a certain number of marijuana plants).  As you can see, the quoted language of the Marijuana Legalization Act only expressly makes the possession of up to 2 ½ ounces of marijuana legal for a person 21 years of age or older.  But because the Act would repeal 22 M.R.S.A. section 2383(1), legalization would extend to everyone.  The Attorney General is right.  The Marijuana Legalization Act would legalize the use and the possession of up to 2 ½ ounces of marijuana for one and all, cradle to grave.  Party on, or vote no?

The bill’s text may be viewed on the page at the following link, by clicking “Legislation”  under Question 1:  https://www1.maine.gov/sos/cec/elec/upcoming/index.html   For some reason, the Maine State Legislature link has been taken down.  The provision repealing 22 M.R.S.A. section 2383(1) is on page 28, on the 8th and 9th lines of text (kind of easy to miss).


Additional Remarks, 10/16/16.

This could have been avoided by simply not including the repeal of 22 M.R.S.A. section 2383(1) in the Marijuana Legalization Act.  The Act already contains proposed 7 M.R.S.A. section 2443, which provides:  “Notwithstanding…any…provision of law to the contrary and except as provided in this chapter, the actions specified in this chapter are legal under the laws of this State and do not constitute a civil or criminal offense under the laws of this State” (see page 5 of the Act, beginning at line number 25).  Because the Marijuana Legalization Act specifies that those age 21 or over may possess and use up to 2 1/2 ounces of marijuana, if 22 M.R.S.A. section 2383(1) were left standing its provisions would no longer have any prohibiting effect on those age 21 or older.  On the other hand, because the Marijuana Legalization Act does not expressly address possession of marijuana by those under age 21, nothing in the Act would override 22 M.R.S.A. section 2383(1) with regard to those under age 21.  Section 2383(1) would continue to make it illegal for people under age 21 to possess up to 2 1/2 ounces of marijuana.   But the drafters of the Marijuana Legalization Act specifically chose to repeal 22 M.R.S.A. section 2383(1), thereby removing any prohibition in Maine law against anyone possessing up to 2 1/2 ounces of marijuana.  Why?

There is another other odd (sloppy?) aspect of the Marijuana Legalization Act that bears mentioning in connection with the use (as opposed to possession of up to 2 1/2 ounces) of marijuana by those under age 21.  Proposed 7 M.R.S.A. section 2452 (beginning at p. 25, line 29 of the Act) is captioned “Personal Use of Marijuana.”  Subsection 1 of section 2452 is quoted in part above, specifically stating that persons age 21 or over may purchase, transport, use, transfer without remuneration, etc., up to 2 /12 ounces of marijuana.   This subsection specifies that it applies only to those age 21 or older.   Later, in subsection 5 of section 2452,  the issue of “Use” is addressed (see page 25 of the Act, beginning at line 20).   Subsection 5 states simply that “A person may consume marijuana in a nonpublic place, including a private residence.”  When it comes to the issue of consumption (as distinct from possession, transport, purchase of retail marijuana, etc.), the Act gives permission for “a person” to consume in any nonpublic place, without placing any limitation on the age of such “person.”  Careful draftsmanship would have required this passage instead to state “A person 21 years of age or older may consume marijuana in a nonpublic place, including a private residence,” to make clear that the Act does not grant permission (any other provision of Maine law to the contrary notwithstanding) for people under age 21 to consume marijuana as long as they do it in a “nonpublic” place.  In fact, it would have been even clearer if this subsection had been written in terms prohibiting everyone from legally consuming marijuana in certain places, instead of granting permission to all to consume in any nonpublic place and then carving place-specific exceptions from that general rule.

Subsections 5(A) and 5(B) of section 2452 go on to make clear that it will violate the law for any person to smoke marijuana in a public place or any place where it is unlawful to smoke tobacco.  Then, section 2452 contains two subsections that address potential conflicts with federal law.  Subsection 5(C) of 2452 states “This subsection may not be construed to shield any adult from federal prosecution.”  Subsection 5(D) states “This subsection may not be construed to allow any adult to possess or consume marijuana on federal property.”  Why use the term “adult” here, as opposed to “person?” When a term is used that describes a specific, rather than a more general category, that is usually done because the drafter intends to distinguish those in the specific category from those in the more general category.  Did the drafters here mean to allow that section 2452 might be construed to shield a juvenile from federal prosecution, or allow a juvenile to consume marijuana on federal property?  I can’t help but think, as messy as the legislative process is, that the legislative process would have caught and corrected the flaws in this referendum proposal.

As clear as it is that the Marijuana Legalization Act’s repeal of 22 M.R.S.A. section 2383(1) removes the sole existing legal prohibition against anyone, of any age, possessing marijuana in Maine, many proponents of Question 1 still claim it does not have that effect.  Here’s what I say to that:   Point out to me the specific Maine statutes that will still make it illegal for those under the age of 21 to possess or use up to 2 1/2 ounces of marijuana if the Marijuana Legalization Act, with its express repeal of 22 M.R.S.A. section 2383(1), is enacted.  I am waiting…


October 19, 2016- More Reaction to Continuing Dishonesty from the Yes on 1 camp:

Don’t be fooled by those who suggest that a law’s effects are determined by the stated intentions of its proponents, or by whatever label those proponents have placed on it. That just isn’t how legislation works.  That is, however, what Greg Kesich suggests in his snarky and dismissive little piece on the editorial pages of today’s Portland Press Herald, “Question 1 reveals the real dangers of marijuana.”*  Kesich pooh-poohs the idea  that the Marijuana Legalization Act’s express repeal of the only Maine statute that makes it illegal for anyone to possess or use up to 2 ½ ounces of marijuana could possibly provide rational grounds to vote against Question 1.  He tells us that the problem with the proposed legislation that was recently pointed out by Attorney General Janet Mills can’t actually be a problem because “First of all [Question 1] is being pushed by the Campaign to Regulate Marijuana Like Alcohol” and “last time we checked, alcohol was pretty strictly regulated to prevent children from buying it.”  Not to rain on Mr. Kesich’s cocksuredness or anything, but that’s a non sequitur.

Let’s take a look at the regulation of alcohol in relation to those under age 21. Back in the ’70’s the legal drinking age was lowered to 18, and then raised back to age 21.  If enough people favor returning to a legal drinking age of 18, they could place an initiative proposal on the ballot.  To accomplish its purpose, the proposed bill would have to (1) eliminate the civil penalties that currently exist for using, possessing and transporting alcohol between ages 18 and 21, and (2) eliminate the current penalties for selling or furnishing alcohol to people who are at least 18 years old but not yet 21.  We could call the proposal “An Act to Lower the Legal Age of Alcohol Consumption to 18.”  Suppose the people we hire to draft the bill are not particularly good at drafting legislation.  They write a bill that amends all the laws pertaining to selling and furnishing alcohol, changing the legal age of those to whom alcohol may be sold and furnished from 21 to 18, but their bill also expressly repeals the statutes that make it illegal for all minors to possess, use or transport alcohol.  The drafters should merely have amended the statutes pertaining to minors possessing, using or transporting alcohol, to allow those who are at least age 18 to engage in those acts.  Instead, by use of a couple of lines of text buried deep within the bill, the drafters outright repealed those statutes. Therefore, if the bill passes it will be legal for anyone to possess, use or transport alcohol, regardless of age. Because the Maine Juvenile Code makes it a juvenile offense to possess, use or transport alcohol expressly in violation of the statutes that our proposed bill will repeal, if our bill passes it will no longer be a juvenile crime for anyone under age 18 to possess, use or transport alcohol.  Do you see the parallels to the Marijuana Legalization Act?

Now let’s suppose that, as voting day nears, the problem with our proposed bill is discovered. If the bill’s proponents are dishonest, they might tell the electorate that the bill won’t make it legal for people under age 18 to use, possess or transport alcohol, because:  (A) the bill is called “An Act to Lower the Legal Age of Alcohol Consumption to 18,” so it can’t be intended to let people under age 18 drink, and voters should dismiss out of hand any fear mongering from irrational, prohibitionist nannies trying to scare them into voting “no;” (B) The bill’s express references to age all refer to lowering the drinking age only to age 18, so the bill can’t possibly have the effect of legalizing drinking for those under age 18; (C) The law will not allow anyone to sell or transfer alcohol to those under age 18, so even if it is legal for those under 18 to drink, that can’t possibly be a problem because people under 18 won’t be able to buy alcohol from a legal seller; so (D) Let’s not get swept up in paranoid fantasies of 2-year-olds drinking whiskey at the playground, or vendors setting up beer carts on grade school playgrounds– that won’t happen, so there is no problem.  On the other hand, if the bill’s proponents were to hold the truth in slightly higher esteem, they might merely advocate irresponsibility and assure the electorate that, even if the irrational, prohibitionist nannies are in fact right, a “yes” vote is the right vote, because any problems can easily be fixed after the bill passes. Would anyone buy into that crock?  I’m pretty sure the response of the voters would be something like “What are you, nuts?  Go back to the drawing board and fix the problems!”   Why is it different for the Marijuana Legalization Act?

* http://www.pressherald.com/2016/10/19/greg-kesich-question-1-on-maine-ballot-reveals-the-real-dangers-of-marijuana/


10/22/16 Attorney General Janet Mills Dishes It up Straight, in the link below:

Back on the topic of Question 1, I swear to anyone willing to listen that there are serious problems with this bill. It will legalize the possession of marijuana for everyone, regardless of age. That’s just crazy, but that’s clearly what it does. It should not go without mention that your State Attorney General is dishing it to you straight, and there is no good reason to doubt her credibility on the issue.  Attorney General Mills is a life-long Democrat who broke a gender barrier by becoming the first female District Attorney in this State. “Oh, well, that just makes her a law enforcement shill,” some of you might say.  Wrong, el wrongo, skeptical peeps.  She has also been the president of the Maine Association of Criminal Defense Attorneys, and she is a lawyer who has served in the Maine State Legislature.  So, unlike those in the “She’s just scare-mongering crowd,” she actually knows quite a lot about legislation and the interpretation of statutory law.  She’s no more a right-wing moralist, scare-mongering in behalf of law enforcement on this issue than she is someone with a financial stake in it or someone with a burning desire to spark up her first legal doob in the State of Maine. She knows whereof she speaks, and she speaks as below.  Don’t be stupid.

To shore up the point, nobody has yet met my challenge to point to the remaining law that will make it illegal for anyone under age 21 to possess marijuana if the Marijuana Legalization Act passes. They have not met that challenge because it is impossible to meet.


Update January 28, 2017.  The referendum question passed. Then the Legislature passed a bill to repair the one approved by the voters.  The Legislature, of course, had to do that, to avoid the legal use of marijuana by those under age 21 that the voter-approved bill would otherwise have allowed. It amuses me that this had to be done, given the nearly uniform denial by those in favor of the ballot initiative that it would have that effect. I wonder if any of those truth deniers were among those shouting yesterday that Governor LePage was irresponsible when he threatened not to immediately sign the corrective bill into law. LePage’s critics complained that his failure to sign would have made it legal for those under 21 to use marijuana for 10 days until the corrective bill would automatically take effect. Some people will say anything to get their way; truth be damned and with no sense of irony or shame.