Higher Law: Kavanaugh on Cannabis | Cannabis Bar Chooses New Leaders | Who Got the Work

Welcome back to Higher Law, our weekly briefing on all things cannabis. I’m Cheryl Miller, reporting for Law.com from Sacramento.

You may have heard that President Trump nominated a new U.S. Supreme Court justice on Monday. This week we try to suss out Judge Brett Kavanaugh’s views on marijuana. Spoiler alert: It’s not easy. Plus, the National Cannabis Bar Association has new leadership. And scroll down to see Who Got the Work.

Got a tip or story idea? Feedback? Drop me a line at cmiller@alm.com or call 916-448-2935. Follow me on Twitter at @capitalaccounts.


Kavanaugh on Cannabis


In 12 years on the D.C, Circuit Court, Supreme Court nominee Brett Kavanaugh has left a long paper trail of opinions to dissect. Unfortunately, perhaps, for judicial sleuths, that trail seems to largely go cold around issues related to marijuana legalization.

While we don’t know Kavanaugh’s precise thinking on the topic, we do have one case to consider. Kavanaugh was part of a March 2013 per curiam order denying an en banc rehearing in Americans for Safe Access v. Drug Enforcement Administration. In that case, a three-judge panel (it didn’t include Kavanaugh) upheld the DEA’s decision not to reclassify marijuana under the Controlled Substances Act to make medical use easier.

“I wouldn’t have liked my chances” if the case was reheard before Kavanaugh and the other circuit judges, said Joseph Elford, an Oakland attorney who in 2013 was counsel to Americans for Safe Access. “I think the full D.C. Circuit at the time would have affirmed.”

At the start, Elford drew what he thought was a potentially favorable panel for oral arguments in October 2012: Judges Karen LeCraft Henderson, Merrick Garland and Harry Edwards. He and the other petitioners cited more than 100 studies demonstrating health benefits from controlled marijuana use.

But the court ultimately deferred to the DEA and its “eminently reasonable” determination that “well-controlled studies” showing marijuana’s medical efficacy did not exist. The panel denied the petition. The U.S. Supreme Court later declined to take the case.

Elford has mixed feelings about how a new descheduling effort may fare before a Supreme Court Justice Kavanaugh. While acknowledging that marijuana has moved beyond cut-and-dry Democrat and Republican politics in recent years, “I can’t say I’d like our chances” with a more conservative high court, he said.

“I think the better chance is probably through Congress now,” Elford said.

Cannabis Bar Elects New Leaders


The National Cannabis Bar Association has elected a new board of directors. Board members are: Matthew Abel of Cannabis Counsel; Christopher Davis, the NCBA’s executive director; Omar Figueroa of the Law Offices of Omar Figueroa; Shelli Williams Hayes, chief compliance officer for American Standard Hemp; Joanna Hossack, associate at Clark Neubert; Cátia Kossovsky, owner of Kossovsky Law and counsel to Hoban Law Group; Shabnam Malek of Brand & Branch; Amy McDougal of CLEAResources; Courtney Moran of Earth Law; Lauren Ruddick of Hiller; Nevada state Sen. Richard “Tick” Segerblom; Mary Shapiro of Evoke Law; and Katy Young of Ad Astra Law Group.

The three-year-old bar has more than 250 members. The NCBA’s annual Cannabis Law Institute will be held in Washington, D.C. in September.

Who Got the Work


  • Colorado Gov. John Hickenlooper has named Dominique Mendiola as the state’s director of marijuana coordination. An alumna of the University of Denver Sturm College of Law, Mendiola was deputy director of the state Department of Revenue’s marijuana enforcement division. She replaces Mark Bolton, who returned to the Denver office of Brownstein Hyatt Farber Schreck in the spring.
  • Los Angeles-based cannabis firm Margolin & Lawrence has opened a new office in Oakland, Calif., which will be led by of counsel Mia Mitchell. Mitchell previously worked as a corporate counsel for Wedbush Securities Inc. and as an associate at Jones Walker.

In the Weeds


>> A New Jersey workers’ compensation judge ordered Freehold Township to foot the bill for an injured worker’s medical marijuana. Judge Lionel Simon made his ruling on June 28 over the objections of the township’s insurance carrier. My colleague Charles Toutant writes that this is at least the second time a judge in New Jersey has ruled in favor of an injured employee seeking medical cannabis. [New Jersey Law Journal]

>> The U.S. attorney for Massachusetts repeated assurances he’s focused on combating opioids, not state-legal marijuana. Andrew Lelling issued a statement saying his office will combat pot overproduction, sales to minors, organized crime and interstate transportation. Lelling talked about some of those enforcement priorities to Boston radio station WGBH last week. [U.S. Attorney’s Office, District of Massachusetts]

>> Philadelphia attorney Richard Hark says Pennsylvania licensed professionals should ‘just say no’ to legal marijuana. Hark, principal of Hark & Hark, says Pennsylvania’s medical marijuana law contains public safety “catch all” provisions that “will be fertile ground” for disciplinary action. “I cannot overstate my estimation that all licensing boards will find working ‘under the influence’ of THC is working in a negligent or reckless manner that automatically risks public safety.” [The Legal Intelligencer]

>> A federal judge in New York says he’ll stop sending defendants on supervised release to jail for smoking pot. U.S. District Judge Jack Weinstein of the Eastern District of New York said the jail orders serve “no useful purpose” for otherwise rehabilitated defendants and unnecessarily waste the time and money of probation officers. [New York Law Journal]

>> Attorneys for the city of Newport Beach, California, have asked a court to stop the Church of the Holy Grail from dispensing marijuana. Brick-and-mortar dispensaries are banned in the city. A lawyer for the church told city officials earlier this year that marijuana use on the site was a “lawful exercise of religion.” A previous Weedmaps listing for the Church of the Holy Grail appears to have been taken down. [Daily Pilot]

>> Could marijuana politics turn the U.S. Senate blue in November? I’m not so sure, but a Politico report raises some interesting points about the potential sway of pro-marijuana voters in tight Senate races this fall—especially if there’s a legalization measure on the same ballots. [Politico]


Calendar: What’s Going On?


July 18: The Global Hemp Trade Symposium will be held in Vancouver, B.C. Scheduled speakers include Hoban Law Group senior attorney Patrick Goggin.

July 19: The National Cannabis Industry Association hosts quarterly cannabis caucuses in Las Vegas, Nevada and Denver, Co.

July 25-27: The National Cannabis Industry Association’s Cannabis Business Summit & Expo takes place in San Jose, California. The National Cannabis Bar Association hosts a day of CLE panels on July 25 at the NCIA event.

Higher Law’s on hiatus next week, but we’ll be back soon. In the meantime, thanks for all the tips and feedback. You can reach me at cmiller@alm.com

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