by David Downs
Oakland civil law attorney Jim Wheaton writes laws for lay-people. Over the last couple of decades, he's written a handful of so-called "ballot initiatives" — contentious laws the the public votes on directly, doing a wildcat end-run around the entire legislative process. Most of them fail, but when they pass, oh boy. Prop. 13 locked in property taxes, thereby destroying California's tax base. Prop. 215 made marijuana medicine. And Prop. 8 told gays where they could shove marriage. (Not a happy place.) Although Wheaton didn't write any of those props, his latest work — the legal text of the Tax Cannabis 2010 initiative — promises to change the face of California law just as much as they did. Everyone has their take on this November's ballot initiative, but let's cut the crap and talk to the guy who wrote it.
Legalization Nation: So, who wrote the law?
James Wheaton: Richard [Lee] hired the law office to do legal drafting, which I did and do. We went through more than a dozen drafts. ... but they were vetted by many people.
LN: In the 20th Century, 102 propositions made it to the ballot, 8 percent passed. Has any of your initiatives won?
JW: In '86 I was on a committee that helped draft Prop 65, the toxics right to know law. In '88 Prop 103 insurance reform passed ... when I was at Common Cause in 1990 we did a constitutional ethics measure that passed.
LN: Prop 8 banned gay marriage with one line. That's kind of impressive. Did length ever come into the discussion? People seem to want a country where the laws are written like a cookbook recipe.
JW: Length is not that determinate. Brevity is a good thing, because it feels less daunting to the voters, although most of us sincerely doubt that any voter actually reads a full text of any initiative measure.
LN: Let's get down the issues of the initiative. It limits personal possession to one ounce. No one under 21. No public consumption. No amnesty for convicted cannabis users in jail?
JW: Yes, Lee said, 'See if you can draw me up an initiative that basically does for marijuana what we have for alcohol.' It's not a perfect parallel. There's no limitation on how much alcohol you can own. He thought that was important because he wanted to stress that the issue here is controlling it. The whole theme of this initiative is controlling marijuana distribution and possession, because criminalizing it has led to no control.
LN: What's the commercial section?
JM: There's two parts: the first part says personal possession. The second section, the commercial part: empowers local governments, cities or counties to adopt ordinances to create commercial distribution systems within their jurisdiction. It sets out a series of factors and issues that they can take into account when writing their ordinances.
It says, "These are the issues you should consider: height, proximity to other things, regulating the environment, protecting the environment, ensuring against unintended exposure, public displays, and placards."
It is intended to mirror the way we handle liquor. The location of liquor stores are all handled locally. ABC oversees the whole system. Communities that want to have a commercial distribution system should be allowed to have it under the strict rules of alcohol, but some counties will say, "No, we don't want anything to do with this," and they don't have to. It also intends to implement the lessons learned by Prop. 215, so there's a system of control in place from day one."
LN: How does federal law not make this initiative invalid?
JW: Federal laws would still apply, and they could, if they chose to, go after somebody in this state. It doesn't violate federal law. It creates a conflict. That's not an uncommon situation. How are the feds going to deploy federal resources? Under the Bushes, we were going to go after everybody who grows. The new AG has announced the policy is very different.
LN: Assemblyman Tom Ammiano is working on a legalization bill in the California Legislature? Why not let let the lawmakers make the laws?
JW: There's two reasons people go to the ballot: they don't think the legislature will take any action. Or the legislature might act but it's not going to act with vigor and strength. The initiative process allows you to write exactly what you want.
Jim Wheaton wrote Tax Cannabis 2010 as an independent project. Separately, Wheaton defends journalists for the First Amendment Project in Oakland and protects the environment for the Environmental Law Foundation. He's a 2009 California Lawyer of the Year, in California Lawyer Magazine.