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Apr-17-2010 13:17printcomments

Supreme Error

"I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon's motto provides, 'with her own wings.'" - Justice Martha Lee Walter

Justices Robert Durham and Martha Lee Walter
Despite the majority of the Court, Justices Robert Durham and Martha Lee Walter stood up for what is right, while the rest of Oregon's Justices sided with federal powers.

(EUGENE, Ore.) - The Oregon Supreme Court has a long history of siding with out-of-State corporate interests against average Oregonians. The recent Emerald Steel decision, in which the court ruled that employers can fire medical marijuana patients, is the ultimate example of judicial activism by the Court against the people of this State.

The Oregon Medical Marijuana Act is the law of this State. It was passed by public referendum, and it cannot be overturned by seven monkeys-in-suits, sitting in a banana republic court in Salem.

There is a thing call majority rule. 611,190 citizens of this State voted in favor of the Oregon Medical Marijuana Act. Seven justices in Salem cannot overturn it.

By declaring that employers can fire Medical Marijuana Patients the Oregon Supreme Court is attempting to bar the entire working population of this State from accessing a legal medical treatment.

This decision on the part of the Court was a grave error. It demonstrates contempt for democracy, the rule of law, the citizens of Oregon, and common sense.

Despite the majority of the Court, Justices Martha Lee Walter and Robert Durham stood up for what is right, and dissented from this deplorable opinion.

In her dissent, Justice Walter’s writes:

I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon's motto provides, "with her own wings." ORS 186.040. Therefore, I cannot join in a decision by which we, as state court judges, enjoin the policies of our own state and preclude our legislature from making its own independent decisions about what conduct to criminalize.

I agree with the sentiment expressed here fully. I would only point out once again that this is not a decision of a legislature that is being overturned, but a decision of the people made by popular referendum, which is of a different nature entirely.

The majority opinion in this case has no basis in law. That opinion, written by Justice Rives Kistler, is nothing but a dimwitted exercise in sophistry that attempts to talk its way around the clear and evident meaning of the law as it is written.

The majority decision turns on whether or not medical use of Cannabis in Oregon is “illegal use of drugs.” ORS 659A.122, the defining statute, clearly states that “Illegal use of drugs ... does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law.”

There is no debate here. Medical use of Cannabis is not illegal drug use in the State of Oregon.

The Oregon Supreme Court decision here defies the law, defies logic, and defies the will of the voters of this State. This decision is an act of aggression by the judiciary against the people of this State and against our democratic form of republican government.

The judiciary and its enforcement arm have a long history of committing crimes in the name of drug prohibition. They are all guilty of assault, kidnapping, false imprisonment, larceny, extortion, and a slew of other crimes related to their illegal enforcement of drug prohibition.

The people of this State have elected to rectify the errors of the legislature and the judiciary through the democratic process. Now the judiciary itself is rejecting the democratic process.

Let me draw attention once again to the contrast of 7 versus 600,000. If anybody who ratified this opinion is functioning above the level of a dog, they should be able to figure out that 7 old men do not dictate law to 600,000 free citizens.

On the contrary, it is the citizens of this State who make the law. They have spoken, and the law is that medical use of cannabis is legal.

The Supreme Court, the judiciary, and the legislature must all understand one simple rule: they serve the people of this State. That is their function. They are tools. If they fail in their function, then like any broken tool, they will be discarded and replaced.

Attempting to prevent sick people from accessing necessary medical treatments is perhaps the lowest and most contemptible conduct that could be imagined from a holder of public office. Tragically, this conduct has become the norm in a political process that is itself terminally ill.

While this decision may fall within the norms of the illegal drug prohibition regime that has been propagated over many decades, this decision is clearly unacceptable in view of present political realities.

The citizens of this State have legalized the medical use of cannabis, and the judiciary is in clear breach of their constitutional duty and authority. This situation demands redress, and the responsibility for this redress is shared by all branches of State Government.

The State Government has an opportunity now to reform its illegal drug prohibition laws by its own accord. If the State Government elected for internal reform, it might be able to avoid some culpability for the many crimes that have been committed in the name of drug prohibition.

As it is, a tiny minority continues to arrogantly defy the will of the people, refusing not only to institute reforms on their own behalf, but actively subverting the reforms passed by popular referendum.

If this behavior continues, the consequence will be that individual members of Government will be prosecuted for crimes committed in the name of drug prohibition. These crimes include a long list of serious felonies, to which can now be added Treason against the State, for this latest bald faced assault on the democratic process.

There is only one law in this State, and that is the law made by the democratic will of the people. The judiciary, and by extension the entire State Government, is in violation of that law. It is the responsibility now of those within the State Government who would like to avoid prosecution for their illegal activities to rectify this situation and bring their institutions into compliance with the law.

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Salem-News.com Business/Economy Reporter Ersun Warncke is a native Oregonian. He has a degree in Economics from Portland State University and studied Law at University of Oregon. At a young age, his career spans a wide variety of fields, from fast food, to union labor, to computer programming. He has published works concerning economics, business, government, and media on blogs for several years. He currently works as an independent software designer specializing in web based applications, open source software, and peer-to-peer (P2P) applications.

Ersun describes his writing as being "in the language of the boardroom from the perspective of the shop floor." He adds that "he has no education in journalism other than reading Hunter S. Thompson." But along with life comes the real experience that indeed creates quality writers. Right now, every detail that can help the general public get ahead in life financially, is of paramount importance.

You can write to Ersun at: warncke@comcast.net




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Anon April 24, 2010 9:44 pm (Pacific time)

As someone that knows several of the justices of the court personally and professionally, I have to point out that those saying this is part of a conspiracy against marijuana users don't know what you're talking about. I think it's pretty clear in this opinion that many of the justices on the court set aside their personal opinions on medicinal marijuana in order to make the correct rule on this legal issue. I don't think any of them liked the outcome. Oregon has one of the best state supreme courts in the country that a liberal/progressive minded person could ask for.


Hank Ruark April 20, 2010 10:50 am (Pacific time)

D.B.: Must confirm that Ersun is precisely correct in his to you re hackwork by Oregon judges, obvious in this case. Ersun stated to you:"More to the point, an Oregon court should be making decisions based on Oregon law, not on speculative arguments about how the U.S. Supreme Court might decide a specific question of Federal supremacy." That's crux of issue here,and state judges speculating on U.S. Supremes action are on very thin ice, and deserve the cold shock administered here so neatly by Ersun. Better to see it here than on losing end of highly damaging reversal if carried further on appeal...


Ersun Warncke April 19, 2010 12:21 pm (Pacific time)

Douglas: I agree with most of what you say, except for saying that the courts are not at fault here. The OSC opinion is directly contrary to Oregon law. OSC ruled that medical marijuana patients are "illegal drug users" even though Oregon Law plainly states that illegal drug use does not include drugs taken under physician supervision, or drug use that is authorized by State law. The OSC jumped through a bunch of hoops in order to reach a conclusion that is directly opposite of the plain wording of Oregon law. The OSC opinion tries to assert that Oregon is governed by Federal Law. The opinion takes arguments about the supremacy of Federal law, which only apply where there is Constitutional authority for Federal regulation, and apply them to a wholly State matter, where no constitutional authority for Federal regulation exists. More to the point, an Oregon court should be making decisions based on Oregon law, not on speculative arguments about how the U.S. Supreme Court might decide a specific question of Federal supremacy. The opinion is a travesty. It is a grossly incompetent piece of hack work by judges who had a preformed decision, and then pulled some s**t out of their ass to justify it.


Vic April 19, 2010 12:09 pm (Pacific time)

Right on, Douglas Benson...I think you nailed it.


douglas benson April 19, 2010 6:46 am (Pacific time)

This is the same old shell game they have been playing for years .You can prove all day that cannabis is medicine but we cannot compell the lawmakers to re-schedule and untill that happens our hands are tied .Meanwhile the lawmakers refuse to hear any evidence that cannabis is medicine because its political suicide or should I say campain suicide no more monies to allmost every goverment department the wizz quiz, treatment,ins.,big pharma ,and all the established industries that hemp and cannabis threaten . You cant blame the courts they are follwing the rules .Blame the lawmakers they are not . Many times it is the argument that is presented and I would be curious to see how they would rule on a case claiming that the testing companies are violating Oregon HIPA by revealing PHI to employers . They cant tell your employer if you are on phsyc drugs ,aids meds,vicodin ect so how are they able to do so for MM .I know the answer you would get and that is the tests are to fedral standards usually DOT standards . But if the fedral courts have ruled that the feds cant pull medical records from the thcf clinic because it violates Oregon HIPA isnt that the same type of thing . Shouldnt our state board of pharmacy change the classification of marijuana due to the OMMP law ? Is there any way to compell them to do so or at least make a ruling ?Im not a freaking lawyer so I dont know . Then there is the fact that if it is re-classified it will be so regulated that patients will no longer be able to grow thier own medicine and the cannabis they provide will most likely be garbage .Im out Peace.


Hank Ruark April 18, 2010 3:31 pm (Pacific time)

"Anon": Re generational takeover, YOU should be signing comment and acting with signed statement to the Justices and the Governor and the Oregon law association channels. TH's what Commenteers can and must do, to follow on with more than words-here, seeking solid, honest own-motivation mass movement for major means to affect process of change. TH is why Founders put First Amendment FIRST ! SO "Get on with it" direct, and share what you do DO here, too !!


Anonymous April 18, 2010 12:02 pm (Pacific time)

It just amazes me that our Oregon Supreme Court mindset is still stuck in the 1930's. It is time for them to step down and allow the next generation to take responsibility of the court. We are tired of being sold out !!!


cajunwoman April 18, 2010 11:42 am (Pacific time)

police CAN lie, and we the people are incarcerated for lying. This is prejudice in it's finest. Please deal with SERIOUS drug issues, such as the rise in heroin deaths, and the reality that MORE people die from overdoses of prescription medicine than heroin, cocaine, and meth COMBINED, according too the Centers for Disease Control and Prevention.


Hank Ruark April 18, 2010 9:18 am (Pacific time)

"Anon:" Sir, it is your acceptance by denial, cumulative with that of many others, which may allow such UNConstitutional action to take place at both state and national levels. What is truly "American exceptionalism" is our long-continuing defiance and determined remediation of such action --even by so/called "judges",when they wander away from time-test and true fully American values. Wll YOU now join with many ohers in solid,sound-off and extremely serious protest via each such "judicial" action ? If so, express that protest here in open, honest, and very democratic dialog, rather than in very revealing "so-what ?" statement. Easy rule: Think what ANY Founder might declare and then write what you hear him say !! If nothing else, this forces some cogitation perhaps very consequent for you here.


Anonymous April 17, 2010 9:40 pm (Pacific time)

What else is new? Political interests (or shall we say, where the money is) overrides the individual rights of Oregonians, as the rule of their law.


Hank Ruark April 17, 2010 3:40 pm (Pacific time)

As an independent journalist long experienced in diverse coverage of legislative, legal and court functions, and with sixty years spent working in both education and journalism, with exceptional experience in the communications areas at the heart of each, I am in complete agreement with both the factual description and the inevitable conclusions flowing from them --so well expressed here by friend Ersun. Denial of the wit,wisdom,and will of Oregon citizens defies and defeats the open, clear and consummated decision made by those citizens via the free and open process set forth in our democratic governance system for precisely this kind and level of fully democratic reconsideration leading to legal and binding decision. Whatever steps need taking to begin the reversal of the overreaching seven judges here involved should begin rapidly and be pursued to its only possible democratic remedy -- reversal of this judicial action, obviously flawed, erroneously-derived, damaging the democratic process of change already followed by Oregonians.

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