In Washington, a person with proper documentation from a physician can legally possess marijuana, right?  It isn’t that simple.   The State Supreme Court essentially said this month that even if you possess the valid certificate from a doctor, the police can still search your house and still arrest you.  The certificate can only be brought up later in court to defend you.  See decision.  In a case out of  Stevens County, Washington, the sheriffs deputies approached the home of Jason and Tina Fry and smelled marijuana from the front porch.   Tina Fry presented proof of medical authorization, but the police obtained a warrant anyway.  As you would expect, marijuana was found in the home.  The Frys’ criminal defense lawyer filed a motion to dismiss and to have the search thrown out of court.  The Stevens County judge denied the lawyer’s motion to suppress the evidence.   The Frys’ defense lawyer appealed all the way up to the State Supreme Court.  There the court explained:

A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

The ruling essentially says that medical marijuana is not legal; rather it is illegal until you go to court and present a defense.  Is that clear?  Unfortunately not.  Another similar area of the law was fought out in December in King County Superior Court.  Aaron Pelley, a Seattle criminal defense lawyer, won a legal challenge on behalf of Scott Verner, a medical marijuana patient.   During a routine traffic stop, a state trooper smelled the marijuana in Verner’s car and searched it even though Verner produced a doctor’s authorization.  Attorney Aaron Pelley took the State to court and won a groundbreaking case that forced the police to return the marijuana.  I am sure the police considered that quite an indignity.  But, it is probably also  an indignity for sick medical marijuana patients to stand by the side of the road when their cars are searched.  The article made news nationally, and is available here.

Are marijuana patients and criminal defense lawyers the only ones who are fed up with the confusion in the law?  Mason County Prosecuting Attorney Gary Burleson also seems fed up.  “I don’t have a problem with marijuana being legal, and I don’t have a problem with it being illegal,” Burleson said. “But right now, I have a big problem understanding what’s legal and what’s not.”  See story.

See prior post on medical marijuana.

What do you think?  Was the Supreme Court’s ruling correct?  The court seemed to take a narrow view of the law and a literal reading of the earlier initiative authorizing medical use.  Is the new initiative more clear?  What can we look forward to from the courts in the future?  Doesn’t it seem like the police are reluctant to fully respect the medical marijuana law?  What will their reaction be to the legalization or decriminalization of marijuana?

You are NOT taking my gavel

The State Constitution provides: A judge of the supreme court or the superior court shall retire from judicial office at the end of the calendar year in which he attains the age of seventy-five years. The legislature may, from time to time, fix a lesser age for mandatory retirement, not earlier than the end of the calendar year in which any such judge attains the age of seventy years, as the legislature deems proper.

Is that fair?

In June, I was in Chelan for some training, and State Supreme Court Justice Gerry Alexander was one of the speakers.  He mentioned to us that he would be unable to serve much longer because he would turn 75 before his term expired.  He did not seem too happy about that fact, but he did not solicit the help of the attorneys in trying to amend the Constitution.   Nevertheless, I have seen opinion pieces popping up suggesting that the law be changed to allow judges to serve longer.   There is a blog I read called  Supreme Court of Washington Blog, that brought to my attention an editorial in the Vancouver Columbian that strongly criticizes this mandatory retirement age for judges.  The Columbian points out that this rule was created in 1952, and that people are living longer.  I agree that this age limit of 75 should be changed.  Seeing Justice Alexander give his presentation in June, he certainly seemed like he was on top of his game.  When I represented Ferry County in front of the Supreme Court on a Growth Management Act case, he certainly seemed like a very thoughtful justice.   However, the Columbian editorial took the position that there should be no upper limit to judicial retirement age at all.  I am not sure I agree with that.  On one hand it makes sense to let the voters make up their own minds.  But on the other hand, it is a historical fact that sometimes judge in our society have not always known when to hang up their black robe.   In his book, The Psychology of the Supreme Court, Lawrence Wrightsman, writes:  Some Justices become physically disabled or even senile, but refuse to retire.  Justice William O. Douglas had a stroke on the last day of 1974 that left him partially paralyzed.  His speech was impaired, and one arm and one leg did not function.  he missed much of the 1974-75 term, returned in the Fall of 1975, and was not at full strength.  In fact, he was often confused and would refer to people by the wrong names, or not be able to respond at all.

But it is not just stubbornness that sometimes leads judges to hang on past their prime.  Wrightsman explains that several justices refused to retire until they could be assured that someone with similar views would replace them.

The Columbian takes the position that the answer to judicial retirement is simple – it should be left to the voters and that there should be no mandatory retirement age at all.  That would worry me.   Is it really dignified to have the possible senility of judges to be discussed in the public realm?  What attorney in his or her right mind would want to level that sort of accusation against a judge?  Is it left to the fellow justices on the court?   When William Douglas grew incapacitated while still on the bench, all the other judges agreed to simply continue to the following year any cases in which he was the deciding vote.  But none of those judges at the time publicly criticized the judge, or suggested his impeachment.  So is it left to the newspapers to ferret out judges that are too old for the job?  Does the Columbian really want to discuss the senility of justices in their election-year editorials?

What does everyone else think?  Should the upper limit be increased to 78 or 80?  Maybe the law should be changed so that any judge elected before age 75 could at least serve out the rest of his or her term.  What advantages are there to having a judge that is over 75?