County judge drops medical marijuana case

June 27, 2004

Christian Bringhurst, News-Review

A judge dismissed a case Friday filed on behalf of a medical marijuana grower who claimed the Douglas County District Attorney's Office was improperly applying the Oregon Medical Marijuana Act. Judge Thomas Kolberg ruled that the case, John Doe v. Jack L. Banta, et al, was a thinly veiled attempt to get him to interpret the act in a manner favorable to Doe so he could avoid prosecution.

Portland attorney Leland R. Berger told the court that his client -- whom he declined to identify to protect him from prosecution -- had called the Douglas County Sheriff's Office to report his medical marijuana plants had been stolen.

Berger said a deputy warned the man that he might be opening himself up to prosecution because he had been in possession of more plants than the district attorney's office interprets the law to allow.

The office interprets OMMA to mean a primary caregiver is subject to the same restrictions for marijuana possession as medical marijuana patients -- which is four immature plants, three mature plants, and one ounce of usable marijuana per mature plant -- even if the caregiver is approved to grow for more than one person, said Deputy District Attorney Jeff Sweet.

If a person is away from the approved growth site, he or she is allowed to have only one ounce of usable marijuana.

Kolberg was skeptical that a deputy would advise people against reporting crimes simply because they might be opening themselves up to prosecution.

'I can't imagine a law enforcement officer doing that in this county,' he told Berger.

Kolberg said circuit court judges aren't allowed to give advisory opinions on points of law in 'hypothetical' situations. If Berger and his client wanted to challenge the law, they would have to do so in defending his client from any criminal charges he might incur from the district attorney's office.

Otherwise, he said, people could rush to court and ask a judge to give a ruling on a point of law before they engaged in a potentially criminal act to protect themselves from prosecution.

'That's just not allowed,' Kolberg said.

'Because he believes the district attorney's interpretation is incorrect, he asks the court to render an opinion on how the Medical Marijuana Law should be interpreted,' Kolberg said in his ruling. 'He is hopeful the court's opinion will mirror his own and will then, in some manner, bind the district attorney in future criminal cases and, specifically, bar him from prosecuting Petitioner.'

Kolberg said in Oregon all civil actions must be prosecuted in the names of the interested parties. He also said he cannot make a ruling on a scenario that is likely to take place, but has not actually happened, such as the potential prosecution of John Doe.

'No one is preventing Petitioner from reporting the alleged burglary. Until he does so, what might happen is a matter of speculation only,' Kolberg wrote. 'A controversy to be justiciable must be immediate and real in order to warrant the court's interpretation.'

The district attorney's office was represented in the case by Oregon Assistant Attorney General Andrew Logerwell.


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