Wednesday, December 1, 2004

Court delivers blow against pot initiative

Judge says district court can hear constitutionality issue

Express Staff Writer

A 5th District Court judge this week delivered two significant blows to the efforts of a Bellevue-based group trying to legalize marijuana in three Wood River Valley cities.

Presiding in Hailey Monday, Nov. 29, Judge Robert Elgee rejected two motions by the Liberty Lobby of Idaho designed to diminish a lawsuit brought against the organization by the city of Sun Valley.

The two rulings were clearly a victory for the city. However, the case is far from being settled and the proceedings this week could be setting the stage for additional litigation over the legalization of cannabis in Idaho.

At issue Monday were two competing lawsuits.

In September, the Liberty Lobby filed suit against Sun Valley City Clerk Janis Wright because she had declined to process the organization's petition to have citizens vote on whether it should be legal to grow, possess, use and distribute marijuana in the city, under certain restrictions.

The Liberty Lobby filed an initiative petition Aug. 25, the same day it filed similar petitions in the cities of Ketchum and Hailey.

In its suit, the Liberty Lobby alleges that the city did not follow procedures for processing citizen-led ballot initiatives.

Soon after, Sun Valley City Attorney Rand Peebles filed a lawsuit against the Liberty Lobby. The city's complaint contends that the Liberty Lobby's proposal to legalize and regulate the sale of marijuana is "unconstitutional" and to hold an election on the issue "would be in excess of the city's jurisdiction."

"A city does not have the right to regulate marijuana laws in the state of Idaho," Peebles said after the suit was filed.

Currently, state law declares that possession of three ounces or more of marijuana is a felony that can bring five years in prison and a $10,000 fine.

Eventually, the 5th District Court decided to consolidate the two competing lawsuits.

This week, Ryan Davidson, chairman of the Liberty Lobby, asked the court to reconsider the decision to consolidate the cases.

Davidson argued that the court must first determine whether the city followed mandated procedures for handling proposed initiatives, before it seeks to determine whether it is unconstitutional for a city to put the pot-legalization question on a ballot.

"This is a problem that has to be solved," Davidson said.

Adam King, an attorney representing the city for Peebles, argued that the two cases are "intertwined" and the city must be allowed to determine if an initiative is constitutional before allowing it to proceed.

Ultimately, Elgee ruled that cities should have "discretion" over whether to challenge citizen petitions.

Then, Davidson argued that the city's lawsuit should effectively be dismissed, primarily because the state Supreme Court, not the city or the district court, has the authority to handle matters of constitutionality.

King objected, saying the city's lawsuit could be heard in 5th District Court and alleging that Davidson's argument was "built on a house of cards."

Again, Elgee sided with the city, dismissing Davidson's motion. The judge ruled that the state Supreme Court does not have "original, exclusive jurisdiction" over issues of constitutionality.

In theory, if the city can establish that the initiative is unconstitutional, the Liberty Lobby's argument that the city failed to follow initiative procedures could fall by the wayside.

Davidson, who previously served as chairman of the Libertarian Party of Idaho, said Tuesday that he will likely appeal Elgee's ruling that the constitutionality debate should be handled in 5th District Court, not the state Supreme Court.

"He's flat out wrong in his ruling," Davidson said.

Davidson noted that he is also preparing to take action against the city governments of Ketchum and Hailey, both of which followed Sun Valley's lead in deciding not to allow the cannabis-legalization initiatives to proceed beyond the first step.

The Liberty Lobby will likely file a lawsuit against the city of Hailey "within a week," he said.

At the same time, Davidson is preparing to file a petition to recall Ketchum Mayor Ed Simon, in part because the mayor expressed "contempt" for the initiative process and has "restricted free speech."

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