Legislative Incompetence

From Horns of Jericho Blog, September 23, 2015

Enamored with the idea of establishing medical marijuana dispensaries, like-minded legislators blindly pushed toward a conclusion without properly vetting HB321.  Later signed into law as Act 241, the strongest proponents of the measure are hoping you will look past the sloppy workmanship behind the bill, how it is riddled with flaws and how the public will suffer from their incompetence.

A recent article featured on Pacific Business News (PBN: Hawaii lawyers must not serve medical marijuana licensee hopefuls, disciplinary board says) noted:

Hawaii lawyers must not provide legal services to clients seeking a license to run the state’s first medical marijuana businesses, according to a new formal opinion released by the Disciplinary Board of the Hawaii Supreme Court.

Due to a conflict between state-level marijuana legislation and federal law, lawyers could be sanctioned for serving the interests of a medical marijuana dispensary.

There are other similar conflicts that affect both medical and recreational dispensaries in other states – particularly their relationship with banks.  Since banks are subject to federal oversight, accepting and storing deposits from a marijuana dispensary would put the bank itself in jeopardy.  As a result, dispensaries have had great difficulty with simple tasks like depositing their money (often resorting to methods as crude as storing wads of cash underneath a mattress) and paying their employees.

The take-home message from this incident is that nothing in HB321 solved for the well-known banking problem that marijuana dispensaries have, and nothing solves for the problem of legal representation for the business entity and individuals associated with the dispensary itself.  While legislative leaders who resurrected the bill after it died would like you to think that this is a relatively recent problem, PBN counters with a quote from Carl Bergquist of the Drug Policy Forum:

[The opinion’s] footnote 1 mentions how states have tackled the same exact dilemma —one way is by statute, but an easier way is to have the court itself change its rules, or add a comment to the rule. … (emphasis added)

If other states have already corrected this oversight with in statutes, why was a similar provision not included in HB321?  It should be noted that the only policy of the Drug Policy Forum is full-legalization of marijuana and other drugs.  If the supporters of marijuana knew about this, why didn’t legislators?

The courts should not have to fix it, this should have been done correctly the first time.  The benefit of being a late-adopter of a concept (much like an Apple product) is that you learn and benefit from the mistakes of others.  Hawaii, being relatively late to the medical marijuana dispensary game, had the mistakes and experience of numerous other jurisdictions to learn from.  Who knows what other gaping holes exist in the bill?  Maybe we will find out that the top-down integration (as opposed to horizontally-integrated model) of medical marijuana dispensaries was the worst possible model to execute in HB321.

This unfortunate oversight is evidence of the lackadaisical attitude that elected officials take toward drafting.  This “shoot first, ask questions later” style of lawmaking is the exact opposite of the slow and deliberate approach that should be taken toward laws.  Similar to the same-sex marriage law that was enacted several years ago, Progressive Democrats have always carried the attitude that they will come back and fix it later.  And much like same-sex marriage, they never do.

Whether it was by accident (legislative incompetence) or on purpose (legislative duplicity), the people of Hawaii are left to wonder if our elected officials are working hard, or hardly working.