George Rebane

[This is the addended transcript of my regular KVMR commentary broadcast on 3 October 2014.]

The upcoming vote on Measure S, the medical marijuana initiative, is raising many questions about enforcement as they affect private property rights.  Measure S, if passed, would replace Nevada County’s existing Ordinance 2349 that prescribes how medical marijuana or MMJ may be grown and consumed in the county.   To be clear, proponents of S are made up almost entirely of the county’s Democrat voting, leftwing or progressive contingent, and the anti-S people are primarily conservative and vote Republican.

As the election nears we hear of all kinds of charges and counter charges claiming misrepresentation of this or that provision of S or the existing 2349.  In this brief commentary I’d like to focus on the county’s MMJ enforcement provisions as they affect property rights.  First, we must understand that according to county counsel Alison Barratt-Green, both S and the existing 2349 are subject to identical enforcement provisions.  In other words, enforcement policy and actions by the county will be affected by the outcome of the election only to the extent that their specific provisions prescribing MMJ grows and related nuisance factors differ.

Currently 2349 provides a number of civil protections to the cultivator and county that are not present in Measure S.  These include the service of a legal notice, the right to appeal, and the right to a hearing.  In turn the county is protected in so far as the county’s abatement costs may be recovered from the property owner/tenant if the violation is not brought into compliance by the MMJ cultivator. 

Overall, according to County Counsel, the sheriff is guided by the 4th Amendment, and the further interpretation that to the extent that a violation can be seen from a location of public access – like a street or the sidewalk – then an ordinance inspection officer may enter the property with the same permission as is extended to the US Postal Service, PG&E or the UPS driver.  If thereupon an ordinance violation is confirmed, then the inspection officer/sheriff is not precluded from making a full compliance check.  Depending on the subsequent findings, the inspector will then leave because the medical marijuana grow is ‘in compliance’, or he informs the resident that the grow is ‘not in compliance’, and must be remediated to bring it into compliance.  Such remediation may involve abatement or removing the marijuana plants.  In every such case of non-compliance, the property owner/tenant is issued a Notice to Abate Unlawful Marijuana Cultivation. 

When there is reason to believe that a violation of 2349 is taking place out of plain view, the inspection officer/sheriff must obtain an inspection order or warrant from the Court to permit a more intrusive compliance inspection.  We should also note that nothing in 2349 or S “affects or precludes the Sheriff from taking immediate abatement action without notice (regarding) any marijuana which is cultivated, possessed, or distributed in violation of state law.”

The pro-S advocates claim that after adoption of Measure S the BoS can subsequently sort out and write one or more new ordinances to indicate what recourse will be available for MMJ growers.  But this will import to our county all the MMJ litigation problems the state created with its initiative based law which then had to be spelled out by subsequent case laws resulting from litigation.  This has become another lawyers’ full employment opportunity.  Ordinance 2349 was adopted to provide an easily amendable clarification of the state’s MMJ law for Nevada County.  However, Measure S can only be amended through another initiative that must be accepted by the voters.

In sum, what voters should know is that the property rights issue between 2349 and S is moot – both will be subject to the same enforcement policy by the county inspectors and the Sheriff’s Department.  Some have tried to make this a property rights issue by claiming that there is a contradiction or hypocrisy involved if a voter favors 2349 over S or vice versa.  But the question of whether such government incursions onto private property should be legal or practiced is a completely different matter that can and should be debated in a free society.  Property rights and code enforcement should not be a factor in your choice of supporting or rejecting Measure S.

My name is Rebane, and I also expand on this and related themes on georgerebane.com where the expanded transcript of this commentary is posted with relevant links, and where an extended debate continues about growing and consuming medical marijuana in Nevada County.  However my views are not necessarily shared by KVMR.  Thank you for listening.

[Addendum]  Let’s take a couple of swings at the property rights aspect of growing MMJ.  A definition of property might be a good place to start.

Property is any asset of ascribed value that is owned by some individual, group, institution, or the state.  In a society the legal owner of a property owns it only to the extent that he/it can dispose of the property as he/it wills.  Absolute ownership – dispose of it without restriction – is seldom possible in an established social order.  The notion of absolute ownership is still important as an objective or goal of organizing society according to or under various governance ideologies (e.g. conservative, classical liberal, libertarian).   Often public policies are evaluated as to how close (conservative) or far (collectivist) from absolute ownership they place and maintain certain kinds of properties.

The Bastiat Triangle of Rights (q.v.) and most liberal constitutions (e.g. California’s) cite life, liberty, and property as ‘things’ that the state cannot deprive a legal entity (legal persons, business entities, or individual natural persons) without due process.  That is, structured and defended property ownership is an essential component of a liberal society without which the other two rights to securing one’s person (life) and freedom of action (liberty) cannot be sustained.  Or more specifically, "Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place."  Frederic Basitiat, The Law.

Adam Smith: taught that the expectation of profit from “improving one's stock of capital” rests on private property rights.  Capitalism expanded on this idea holding that property rights motivate its owners to develop their property, generate wealth, and efficiently allocate resources based on the operation of markets wherein prices communicate value.  But Smith also observed, "Wherever there is great property, there is great inequality … Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all."  Here we focus on private real property – land and domicile – and specifically how the state can prescribe its disposition and enjoy access to it.

If we define absolute freedom of behavior to consist of all the things a lone human being can do as the solo inhabitant of one of Jupiter’s moons, then it should be clear to those who can think that as soon as two humans come together or even know that they each are within the other’s reach, then their behavior becomes constrained – they no longer have absolute freedom since they insert the other into their considerations.  And even more behaviors are proscribed should two or more people want to work together to accomplish something of mutual benefit.  As more people join to live and work in each other’s company/proximity more and more freedoms of action must be surrendered by everyone concerned.

The same arguments reflect on the ownership of property.  Anything of which one claims ownership, that ownership will be diminished as soon as the thing owned is brought into and used in a society.  In short, you no longer have the freedom to dispose of it as you will (or would have on that Jupiter’s moon).

The upshot of all this that humans have always put a finite and negotiable price on their liberties when dealing with others in order to get something that they value more than the relinquished freedoms.  So we know that absolute freedoms don’t work in a society.  Both conservatives and collectivists know this (however for some pernicious reason their progressive brethren keep blowing the smoke that conservatives would have no limits on their freedoms). Now how do we bookend the other extreme in which every sensible person subjected to such deprivation of freedoms will seek to either revolt or flee?

That limit – let’s call it the ‘slavery limit’ – is the crux of the grand debate between collectivists and classical liberals.  The former believe man will happily live a compliant life with many fewer freedoms than do the latter.  That is one reason why it would be better to live in separate jurisdictions when there is a huge difference between the slavery limits of each – in this case a compromise would satisfy neither, and perennial strife would replace harmony.  (In America we have already entered that epoch.)

To proceed, in society any given level of liberties – e.g. property rights – are to be enjoyed only by those who have agreed to the society’s social contract, which includes living within the law.  Part of any such contract is for individuals to surrender certain freedoms of action to a mutually commissioned constabulary that is supposed to enforce the formal aspects of the social contract equally and with no bias across society’s members.  Such constabularies relate to the people through established protocols which we may view as rules of engagement.  A seminal part of such rules is that they provide more latitude in access, arrest, and use of force the more apparent it is to them that the social contract has been violated.  And again the degrees and limits of such latitudes vary greatly between autocratic and liberal societies.

In this regard a telltale sign of a liberal society is that its constabularies must jump through hoops – satisfy more constraints – as they escalate their prerogatives for enforcing the law.  These niceties are dispensed with in autocracies where the police are free to escalate to deadly force at will or with few prerequisites.  But common to all such social contracts is that such escalation will take place when incoming evidence points a more unwavering finger of guilt at the presumed perpetrator.

So here we have been concerned with the property rights of the MMJ grower.  That some inspector or sheriff’s deputy will come and violate the grower's home and castle without due process and for no cause.  Or on the slim excuse of a neighbor complaining about the smell or even about some unseemly visitors who come and go.  But that raises the point that has been overlooked in this debate.

The complaining neighbors too have property rights.  They bought their house or established their business in a neighborhood that didn’t have a MMJ grow until a renter came or the owner decided for whatever legitimate reason to start raising medical marijuana.  These neighbors then have two concerns about the presence of the new grow – reduction of the quality of life, and a very real possibility that their property values will decline.  After all, who wants to buy into a neighborhood with an obvious MMJ grower in obvious residence.

The situation in these times may even be worse for such neighbors.  When a buyer makes an offer, must they declare the presence of the MMJ grower?  If they don’t, are they and/or their real estate agents liable for a suit from buyers claiming that critical information about the house was purposely withheld – another full employment opportunity for lawyers.  In short, when an MMJ grower establishes himself in a neighborhood, it can raise property rights concerns all around.

And it is this multi-party scenario that any MMJ ordinance and its enforcement policy will have to carefully tread so as to somehow be fair and balanced to all parties concerned.  I don’t think that anyone has really cracked the code yet on what a proper ordinance is, but in Nevada County the sheriff receives around 150 complaints a year.  Sheriff Royal stated that these resulted in around 50 citations and less than ten turned out to require abatement.  For all the MMJ grows in this county, these numbers speak very well of how all parties concerned deal with each other.  On the face of this evidence, I would say that 2349 has served the county well with regard to maintaining that hazy boundary of contending property rights between the growers and their neighbors.

And I’m sure that there is more to be said about this issue, but to date I’m not aware of any gross violation of anyone’s property rights under 2349, and Measure S gives us no confidence that the present livable compromise will be improved under its auspices.