9th Circuit Court

[archenemy]

What does this mean:

 

In some sense, the necessity defense allows us to act as individual legislaters, amending a particular criminal projevision or crafting a one time exception to it, subject to court review, when a real legislature would formally do the same under those circumstances.

 

Then they give an example of a prisoner escaping a burning jail and that is an exception.

 

Does this apply to the 9th circuit or are they talking about individual people? I am not experienced reading stuff like this and it is a little teensy bit hard to get the gist. (I'm good at white papers though--go figure.)

[ivan]

Winter -

 

I would like to hear other cc.comers opinions on this.

i don't get into bible quoting contests w/ nuns nor do i argue the law w/ matlocks

[Stonehead]

The 9th originally ruled in favor of medical marijuana users and ruled that the feds can't enforce against those users. The Supremes overruled the 9th on that legal issue, claiming the feds were within their discretion to consider marijuana a controlled substance despite the states' decision to consider it medication.

 

Didn't the Supremes base their decision on something to do with regulating interstate commerce? What terminology did they use? Commerce Clause? In reference to the Controlled Substances Act?

[Jim]

The issue before the 9th circut was narrowed down to the "right to life" by the plantiff because the previous Supreme Court decision regarding CA drug laws forced them into this; it was only hand they had to play given the earlier rulings.

 

It is unfortunate we're so uptight about minor drug use for those who need it medically.

[Stonehead]

I wonder if changing the federal status of marijuana use to illegal except in certain medical instances would also be used as a precedent of sorts to review other drugs such as XTC in similar context? You tell me. In other words, wouldn't it open up a can of worms?

 

If I recall there were medical uses of such drugs as LSD and MDMA to treat things such as alcoholism before these drugs were outlawed.

 

So, she shouldn't look to the courts for relief but hold hope that Congress would look at the issue?

Edited March 14, 2007 by Stonehead

[Madcap]

It is worth noting that the decision reviewed a district court denial of a motion for preliminary injunction. Review of a district court's discretionary rulings are limited and there are particular requirements for imposing injunctive relief. The court declined to order injunctive relief.

 

The court did not foreclose a necessity defense:

 

"Here, although we ultimately conclude that Raich is not entitled to injunctive relief on the basis of her common law necessity claim, we briefly note that, in light of the compelling facts before the district court, Raich appears to satisfy the threshold requirements for asserting a necessity defense under our case law." Raich Op.@3039.

 

"Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court's decision in (U.S. v. Oakland Cannibis) forecloses a necessity defense...Raich's necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer [it] here." Id. @3041

 

Raich brought her case prospectively, and with tremedous courage.

She has not been arrested or charged by the federal goverment and essentially the 9th Cir. is saying a necessity defense has to be ruled on in the context of an actual prosecution as opposed to an advisory ruling.

 

 

Madcap

[Winter]

Peter -

 

First, you have no factual basis for asserting that the Ninth Circuit is composed of "activist judges." That's nothing more than political rhetoric and you have offered no data or facts to support your position whatsoever.

 

Second, if you don't like the law, the solution is not to ask a court to waive that law but to go to Congress and ask them to rewrite the law. That's how the democratic process of checks and balances is supposed to function. I'm sure many of us agree that the medical use of marijuana should not be punished or outlawed as a policy matter. Congress, however, does not agree. Get your politicians to change the law.

 

Third, if you read the opinion you will learn that she basically made your "inconscionable injustice" argument - the legal term is the doctrine of necessity - she had to break the law in order to survive. Necessity is a defense to criminal liability in the context of a criminal prosecution (ie you lose and you go to jail).

 

This case was not raised in the context of a criminal prosecution. The DEA agents seized and destroyed her pot, but the federal government did not bring criminal charges against her or attempt to throw her in jail. After DEA seized her pot, she then filed a civil suit in federal court seeking an order against any further enforcement of the Controlled Substances Act (ie please tell the DEA not to break down the door and burn my pot in the future).

 

The Ninth Circuit essentially followed the opinion of the Supreme Court that the federal government has the authority to enforce the controlled substances act despite CA's medical marijuana law. The court also held that the necessity argument doesn't apply unless she is actually charged with criminal conduct. She cannot rely on the necessity argument to seek an injunction against all future enforcement of the Controlled Substances Act - she has to wait until she is actually charged with a crime before relying on an extraordinary legal argument that was created by courts specifically in the context of criminal liability or the threat of going to jail. She has to wait until charged with a crime, because between now and then, the facts that underlie her necessity defense could change. Her medical condition could improve, there could be a new alternative drug on the market, etc etc - perhaps the federal government will never charge her with a crime (which still hasn't happened yet).

 

So until she is actually charged with a crime, she can't use the necessity argument as a means to get a court to do something that the law does not otherwise sanction.

 

The Ninth Circuit was being quite restrained and refrained from taking action that directly contradicts the Supreme Court's declaration of the law of the land. Furthermore, she is free to continue smoking pot until the federal government tries to incarcerate her, at which time she can raise her necessity defense or your inconscionable justice argument.

 

Blah blah blah. There will be a quiz tomorrow morning. Now please go write a 2000 word essay on marijuana and pursuit of happiness and the American dream.

 

 

BTW, yeah what Madcap said.

Edited March 14, 2007 by Winter

[Stonehead]

She has not been arrested or charged by the federal goverment and essentially the 9th Cir. is saying a necessity defense has to be ruled on in the context of an actual prosecution as opposed to an advisory ruling.

 

 

Madcap

 

I'm way out of my realm here but it's an interesting subject nevertheless so I have an opinion however offbase it might be.

 

The feds are definitely sending a message here. Hasn't it been somewhat similar with regards to Oregon's Death with Dignity Act? I mean the feds have to act consistent with federal law when there are inconsistencies introduced by states through the initiative process?

 

 

[Jim]

I think is has something to do with "government should keep off the backs of citezens - unless dealing with minor drugs, abortion, religion, or the moral issue de jour.

[Stonehead]

"Federalism promotes innovation by allowing for the possibility that "“a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

 

--from Justice O'Connor's dissenting opinion but quoting Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann

 

Edited March 14, 2007 by Stonehead

[mattp]

Second, if you don't like the law, the solution is not to ask a court to waive that law but to go to Congress and ask them to rewrite the law. That's how the democratic process of checks and balances is supposed to function. I'm sure many of us agree that the medical use of marijuana should not be punished or outlawed as a policy matter. Congress, however, does not agree. Get your politicians to change the law.

 

Peter won't do this because that would be "Nazi like." We were talking about birkenstock wearing idealists intervening in Mexican politics, but in the "poor love Walmart" thread he argued strenuously that it was elitist and Nazi of me to suggest that people who care about an issue - and I was using U.S. automobile safety and air pollution control as examples - should study that issue, reach a conclusion, and try to influence politics to bring about a change in a law that affects others.

[tvashtarkatena]

There isn't enough bud in all of BC to get me stoned enough to grok the point of any of PP's posts.

 

What if a prisoner failed to escape a burning jail...full of medicinal marijuana?

[archenemy]

I think PP is a liberal who uses the language of a conservative.

[Peter_Puget]

Moments after my last hasty post here I ran off to the airport. Now after catching up on emal I thought I’d revive this slumbering thread.

 

Indirect as always the point of my post was to suggest that an activist court doesn’t lead to a more just system but rather just the imposition of a court’s particular version of justice and personal preferences. I never challenged the legal reasoning of the court with regarding to the Raich case. In fact I said the whole problem was that the 9th court while easily given to activism did not do so in this case. Given this Winter’s questions to me regarding the 9th’s reasoning in this case are off topic. I never suggested that there was a poor legal reasoning in this case.

 

I do claim that it is simply unjust for her not to be able to smoke pot and the fact that the court has in the past been so willing to step over the line for the cause of the day was unwilling to do so in this case just exposes the flaws of judicial activism.

 

Winter does say my criticisms of the 9th are unsupported. True enough I wrote a short inflammatory post in spray. Here is one example of the 9th going off:

 

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-932#opinion1

 

Breyer (Clinton appointee?)

wrote the opinion and all the other justices agreed.

 

My takeaways –

 

1) The Court’s argument is not logical.

For one thing, as a matter of pure logic, at the moment the transaction takes place, the plaintiff has suffered no loss; the inflated purchase payment is offset by ownership of a share that at that instant possesses equivalent value. Moreover, the logical link between the inflated share purchase price and any later economic loss is not invariably strong.

 

2) The court’s argument is unsupported by precedent.

For another thing, the Ninth Circuit's holding lacks support in precedent

 

3) Other appeals court’s have all concluded differently

We cannot reconcile the Ninth Circuit's "inflated purchase price" approach with these views of other courts.

 

4) The Court erroneously changes the clear meaning of statute into an insurance system

Finally, the Ninth Circuit's approach overlooks an important securities law objective. The securities statutes seek to maintain public confidence in the marketplace. See United States v. O'Hagan, 521 U. S. 642, 658 (1997). They do so by deterring fraud, in part, through the availability of private securities fraud actions. Randall v. Loftsgaarden, 478 U. S. 647, 664 (1986). But the statutes make these latter actions available, not to provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause.

 

I am sure that arguments can be made against any of the points I have made and I have no interest in a deep research project but it seems clear that reasonable people can and do have a different view of the 9th than our friend Winter. I have had about 15 minutes to remember and look up this case -at the time it recieved a lot of publicity. In google I did click on a link in which a USC Law Profw wrote about this case (if interested look for something titled "encourges CEO to continue tellign falsehoods" ) The prof called the Supreme Court's tone "disdainful" towards the 9th Circuit Court.

 

 

 

 

 

 

 

Edited March 21, 2007 by Peter_Puget

[joblo7]

the war is on ;unprofitable non-addictive drugs, waged by profit seeking corps. nothing else.

 

profit-generating, addictive drugs are 'prescribed' under the law and promoted.

[Stonehead]

Just seems to me that judicial activism has faded from the limelight. More appropriately, look to the Executive Branch for actions pursuing far reaching change.

 

So you're bothered that they (the 9th) don't consistently stick to what you see as their modus operandi?

 

Here's the example of one person who did almost a 180. It's one person mind you but I don't view it as flipflopping rather it's a natural evolution of thought in a mature thinker.

An Early Environmentalist, Embracing New ‘Heresies’ --New York Times

[Winter]

Peter, you first presuppose that the 9th issues bad opinions and then find a single example that allegedly supports your politically-motivated hypothesis. You could easily find several cases in which the Supreme Court has overturned every single Circuit in the country. Based on your reasoning, one could persuasively argue that all of our federal appeals courts are equally flawed.

 

You have, once again, proven nothing apart from the facts: 1) that you don't like the 9th Circuit because of your political predisposiiton, and 2) that you are willing to stretch the bondaries of logic to support your position. You imply that the Supreme Court shares your view of the 9th Circuit as a biased judicial body simply because the Supreme Court disagreed with the 9th and overruled its reasoning in a single case - nothing more than empty political rhetoric. The Supreme Court has never even come close to making such a general condemning statement on the 9th Circuit and the second hand opinion of some USC law professor taken out of context doesn't change that fact.

 

Come back and play when you acually have a colorable argument that the 9th Circuit is biased in its decisionmaking.

[tvashtarkatena]

Subpoenas approved for Karl Rove and others today regarding the firings. Better get front row seats for this one.

Edited March 21, 2007 by tvashtarkatena

[Alex]

Now it seems to me that if we as citizens cannot offer valid opinions on such things in non-legal language we have a fundamentally flawed democracy.

 

You live in the USA. It's not a democracy, and its run by lawyers. Didn't you get the memo?

[joblo7]

simply put. i concur

[cj001f]

Now it seems to me that if we as citizens cannot offer valid opinions on such things in non-legal language we have a fundamentally flawed democracy.

 

Do you include non-English speakers in this desire for the vernacular? How about the illiterate? Or are you merely worried about WASP disenfranchisement?