Wednesday, July 01, 2009

County of Butte v. Superior Court (Cal. Ct. App. - July 1, 2009)

I've been thinking about this case since when it came out around lunchtime. And after much reflection, I've come to the reluctant conclusion that Justice Morrison's dissent is right.

It's a great case on many levels. The premise of which starts with the following: "Dude, you can't make me pull up my weed. I'll sue!" Which is exactly what happens.

Basically, a Butte County Sheriff's deputy comes to the plaintiff's house, takes a gander and both the large number of pot plants and the plaintiff's medical marijuana card, and orders him to destroy all but 12 of the 41 plants under penalty of arrest. Plaintiff does so, but then sues, asserting that as part of a collective, he should have been allowed to grow all 41. (We all assume, as we must given the procedural posture of the case, that he's right; that state law didn't limit the plaintiff to only 12 plants.)

Defendants then seek summary judgment on a stupid ground, which both the trial court and the Court of Appeal properly reject. You don't "waive" your right to object to the destruction of your property by "voluntarily" complying with a command under penalty of arrest. That's just silly.

But the tougher question, in my mind, is whether you can sue for the destruction of property -- here, marijuana -- that's illegal to possess under federal law. That's the central issue on appeal, and the one on which the majority and dissent disagree.

When I first read the majority opinion by Justice Raye, I was persuaded. Plus, it has an intuitive feel. The Compassionate Use Act lets you grow this stuff. If you're deprived of that right by an arrest-threatening police officer, you can sue. You lost property, after all -- property that state law expressly allowed you to have. There's got to be a remedy for that, and just like you can sue for any other deprivation of property, so too here.

There's a lot to that. A lot. It makes a great deal of sense to me. Moreover, as a policy matter, I think that's right.

But here's the problem. Notwithstanding the CUA, this stuff is still illegal. It's contraband. You can't sue for the loss of stuff you're not legally entitled to have. Sure, there's presently nothing in state law that says you can't possess the stuff. But federal law is quite clear. Moreover, as we all know from the Supremecy Clause, federal law trumps state law when the two conflict.

Justice Raye has a response to that, and it's a plausible one. He says that the contraband cases "all involve property characterized as such under the laws of the seizing jurisdiction" (which don't apply here since the seizing jurisdiction, California, doesn't make the property illegal) and argues that because "the deputy was acting under color of California law, not federal law . . . . the propriety of his conduct is measured by California law." This is a tolerable distinguishing feature, as indeed the typical contraband case is precisely as Justice Raye describes 'em.

But, in the end, I think that this distinction doesn't in fact matter. Contraband is contraband if it's illegal in the jurisdiction, regardless of whether that illegality generates from local, state, or federal law. You can't sue for its loss, since -- legally -- it's undisputed that you never should have had it. Plus, Justice Morrison makes a tangential point that even state officers take an oath to uphold the federal constitution as well, which doesn't really matter legally, but does show that we're not nearly as authority-specific as one might otherwise believe.

Here's the hypothetical -- actually, not a hypothetical, but the real world -- that ultimately flipped me. Suppose that state law imposes no penalty for X, but federal law does. Let's take something even more innocuous than marijuana; say, articles that depict the Great Seal of the United States. Federal law says they're illegal under a wide variety of settings. (Ditto for the Swiss Confederation Coat of Arms.) California law, by contrast, doesn't make such items illegal anywhere. Imagine that a state officer sees such property and destroys it. Liability?

Not in my view. It's illegal. Doesn't matter why; federal or state. Wouldn't even matter if a state passes a law that said it allowed the Great Seal or Swiss Coat of Arms everywhere. Still illegal. Still contraband. May still be destroyed without liability.

What's true for the Seal is true for Chronic. Sorry about that. Not protected.

So even as a matter of first doctrinal principles, I think that the dissent gets it right. Contraband is contraband. You can't sue for it. That alone properly disposes of the issue.

But with marijuana, there's even a secondary problem. Federal law expressly provides that with respect to marijuana and other controlled substances, "no property right shall exist." I'm sorry, but if that's what federal law indeed provides, then you've indeed got no property right in it, and can't sue for the deprivation of a property right that you failed to possess as a matter of law.

This again just follows as a matter of first principles. Let's imagine, for example, that the federal government has passed the following law: "The title to all marijuana located in the United States is hereby declared to be vested in the United States." If the property is thereby owned by the U.S., when you're deprived of it, you can't sue. And that's essentially what 21 U.S.C. 881(a) does by subjecting all such property to forfeiture and stating that no individual property right exists therefor. Same result. You can't sue for the loss of something to which, pursuant to the supreme law of the land, you have no rights.

Am I happy about this? No. Do I wish -- as does Justice Morrison -- that federal law provided otherwise? Darn toot'n.

But the law is what the law is. And I think, here, the law says that plaintiff has to lose. And that Justice Morrison is right and Justice Raye is wrong.

We'll see if this one stands. But, in my view, I reluctantly conclude that it should not.