Benjamin Dexter, J.D. Candidate, 2016
Few citizens have tried as many times as Michael J. Dee to overturn Maine’s marijuana laws. Dee has sought on more than a dozen occasions to legalize possession and cultivation of recreational cannabis in this state. Recently, the Maine Supreme Judicial Court, sitting as the Law Court, noted that since 1983 he has “repeatedly and unsuccessfully challenged the constitutionality of marijuana prohibitions.” Dee v. State, 2014 ME 106, ¶ 2, ___ A.3d ___. Despite his previous lack of success, Dee once attacked the laws prohibiting his enjoyment of the most politically polarizing herb in the garden, and once again, the Law Court shut him down.
Dee has raised due process arguments under the Fourteenth Amendment of the US Constitution (State v. Dee, 2012 ME 26, ¶ 2, 39 A.3d 42), and fundamental rights arguments under the Fourth Amendment (State v. Dee, 2007 WL 4698274 (Me. Super. June 25, 2007). In most instances his affirmative complaints (and after arrests, his spurious defenses) have been disposed on the weakness and incoherency of his case, but it seems that, several years ago, Maine courts finally became fatigued with his endless cipher of pro-pot challenges.
In 2007, the Superior Court enjoined Dee from filing further suits to challenge Maine’s marijuana laws without prior court approval. Id. Dee did not take the hint. After Superior Court (Cumberland County, Wheeler, J.) dismissed his complaint for declaratory judgment seeking marijuana legalization, he appealed to the Law Court. With three short paragraphs the Law Court affirmed: “[T]he court acted well within its discretion in rejecting Dee’s request for approval to file suit and granting the State’s motion to dismiss his petition with prejudice.” As one Maine Law professor likes to explain to his first-year Civil Procedure class: in court, you don’t get any do-overs.
Despite Dee’s series of losses, the tide seems to flow in favor of marijuana legalization throughout Maine. While once a controversial topic, more and more communities have been raising the question of whether or not to allow citizens recreational access to cannabis. What the Law Court has emphasized in Dee v. State is that any future legalization efforts must be made legislatively.
Medical marijuana, for example, has been available in Maine since 1999, when the legislature passed a bill allowing limited possession and writing of prescriptions for medical grade cannabis. See 22 MRS § 2383-B (2014); Maine’s Medical Marijuana Law, Maine.gov, http://www.maine.gov/legis/lawlib/medmarij.html (last updated Aug. 26, 2014). Possession of marijuana without a medical prescription remains, under state statute, a civil violation that carries a fine of $350-$600 for up to 1 ¼ ounces and $700-$1000 for 1 ¼ ounces to 2 ½ ounces. 22 M.R.S. § 2383 (2014). But as more municipalities (particularly in Southern Maine) institute decriminalizing measures, the state possession fines look more and more susceptible to amendment.
For example, a 2013 a voter referendum in Portland decriminalized the recreational possession and use of marijuana. Portland, Maine, Legalizes Recreational Marijuana, http://www.huffingtonpost.com/2013/11/05/portland-maine-marijuana_n_4221919.html (last updated 11/6/2013). Per city ordinance an individual may possess up to 2 ½ ounces, as well as paraphernalia. Portland, Me., City Code of Ordinances, ch. 17, art.VIII, §§ 17-113, 114 (2014). A group of citizens in York have been trying to put measures legalizing recreational marijuana use on the ballot for some time. Dennis Hoey, York Selectmen Vote Against Pot Referendum Again, Portland Press Herald, http://www.pressherald.com/2014/09/09/york-board-again-votes-against-pot-ordinance (last updated 9/9/2014). And both South Portland and Lewiston slated referendums for their November, 2014 ballots. Gillian Graham, Lewiston Voters to Decide Whether to Legalize Marijuana in Their City, Portland Press Herald, http://www.pressherald.com/2014/09/02/lewiston-voters-will-decide-whether-to-legalize-marijuana (last updated 9/2/2014). South Portland voters, of course, approved the measure, while Lewiston voters narrowly declined to do so. Local Election Results, Portland Press Herald, http://www.pressherald.com/2014-election-results/ (last accessed 11/11/2014).
This is not a problem to be solved judicially. Instead, Dee should seek to spark referendums in other communities, using his long record of “grass” roots activism to affect the changes he desires in drug law. The Law Court firmly sees this as an issue for the voters, and as another Maine Law professor likes to say: if Dee has a problem with the current law, he should tell it to the legislature.
On behalf of the Executive Board, we would like to welcome the new members of the Maine Law Review, Volume 67:
The Editorial Board and Staff of the Maine Law Review, Volume 67
Samuel J. Baldwin
Executive Editor: Juliana O’Brien*
Symposium Editor: Elizabeth Frazier*
Articles Editors: Xi Chen & Benjamin Wahrer
Managing Editor: Ari Solotoff*
Production Editor: Derek Jones
Technical Editor: Laura Shaw
Research Editors: Mikala Noe
Head CN/C Editor: Joseph Gousse*
CN/C Editors: Pardis Delijani & Brandon Farmer
* Executive Board Members
|Maine Law Review Staff
Professors Dave Owen and Dmitry Bam
Symposium: Who’s Governing Privacy? Regulation and Protection in a Digital Era
Peter J. Guffin, Kyle J. Glover, and Sara M. Benjamin
Dennis D. Hirsch
Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information
Bryce Clayton Newell
Omer Tene and J. Trevor Hughes
Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era
Joris V.J. van Hoboken and Ira S. Rubinstein
Waiting for Gluskabe: An Examination of Maine’s Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980
Joseph G.E. Gousse
Trott v. H.D. Goodall Hospital: When Analyzing Employment Discrimination Cases Under Maine Law, Should Maine Courts Continue to Apply the Mcdonnell Douglas Analysis at the Summary Judgment Stage?
Ari B. Solotoff
What is the Scope of Searches of Cell Phones Incident to Arrest? United States v. Wurie and the Return of Chimel
Tyler J. Buller
Shailini Jandial George
Leah McGowan Kelly
David M. Faherty
Of Asthma and Ashtrays: Examining the Rights of and Exploring Ways to Protect Maine Tenants Living in Multi-Unit Rental Housing Who are Involuntarily Exposed to Secondhand Tobacco Smoke in Their Homes
Amy K. Olfene
Fuhrmann v. Staples Office Superstore East, Inc.: A Split in the Law Court as to the Definition of “Employer” Demonstrates the Need for Legislative Action to Amend the Maine Human Rights Act in Order to Protect Maine Employees
Stephen B. Segal[Top]
Who’s Governing Privacy?
Regulation and Protection in a Digital Era
A Privacy Law Symposium Hosted by the Maine Law Review Friday, February 21, 2014, 1:00pm-5:30pm Registration 12:30pm-1:00pm / Reception 5:30pm-6:30pm PROGRAM OF EVENTS Please note that, due to high demand, we have moved the symposium to Talbot Lecture Hall, Luther Bonney Hall, 85 Bedford Street, Portland, Maine
The Glass House Effect: Big Data, the New Oil, and the Power of Analogy • Dennis Hirsch, Geraldine W. Howell Prof. of L., Capital University Law School • Exploring whether environmental law’s response to oil spills can be used analogously as privacy law learns to respond to data breaches.
Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information • Bryce Clayton Newell, Ph.D. Candidate, The Information School, University of Washington; J.D. University of California, Davis School of Law • Providing results of a large empirical study on automated license plate recognition (ALPR) systems, and examining popular legal responses for protecting privacy in light to access through state disclosure laws.
Privacy Law’s Precautionary Principle Problem • Adam Thierer, Senior Research Fellow, Technology Policy Program, Mercatus Center at George Mason University • Examining “bottom-up solutions” for dealing with privacy concerns raised by Big Data, social media, and youth Internet access.
Some Realism about Technical Solutions to Transnational Surveillance • Ira Rubinstein, Senior Fellow, and Joris van Hoboken, Microsoft Research Fellow, Information Law Institute, NYU School of Law • Analyzing enhanced protections for addressing transnational surveillance risks in the context of cloud computing.
Bad Samaritanism, the Entirely Predictable Effect of Section 230 ISP Immunity • Ann Bartow, Prof. of L., Pace Law School• Suggesting that the profitability of online bullying, stalking, and harassment may be reduced by increasing the possible avenues of ISP liability through a reevaluation of Section 230 immunity.
The Promise and Shortcomings of Privacy Multistakeholder Policymaking: A Case Study • J. Trevor Hughes, President & CEO, and Omer Tene, V.P. of Research and Education, International Association of Privacy Professionals (IAPP) • Discussing the success and failures of multi-stakeholder self-regulatory efforts that provide the foundation for current U.S. privacy law.
Structural Limits on Government Access to Personal Data: A Post-Snowden Multi-National Comparison • Christopher Wolf, Dir., Privacy and Information Management Practice Group, Hogan Lovells, Washington, D.C. • Comparing governmental access to data in ‘the cloud’ in the United States to that in other countries, and the extent of protections afforded by the law.
Members of the Maine Bar May Register to Receive 3.92 CLEs Sponsors Include:[Top]
On behalf of the Executive Board, we would like to welcome the new members of the Maine Law Review, Volume 66:
The Editorial Board and Staff of the Maine Law Review, Volume 66
Executive Editor: Rachel White*
Symposium Editor: Sara Murphy*
Articles Editors: Kevin Decker, David Faherty, Stephen Segal
Managing Editor: Adam Quinlan*
Production Editor: Anna Polko
Technical Editor: Meghan Myers
Research Editors: Emily Gaewsky, Ashley Janotta
Head CN/C Editor: Ryan Almy*
CN/C Editors: Christopher Harmon, Elizabeth Valentine
* Executive Board Members
|Maine Law Review Staff
Professors Dave Owen and Dmitry Bam
The Maine Law Review invites you to participate in its 2014 Privacy Law Colloquium. The Colloquium presents an opportunity for discussion and debate about the current privacy laws in Maine, the United States, and beyond. To complement the Colloquium, the spring volume of the Review will be devoted to high-quality legal scholarship focusing on a contemporary issues in privacy law, specifically those which concern the intersection of privacy and the constitution, the ever-evolving technological landscape, and challenges to civil liberty.
The Maine Law Review seeks submissions of papers for oral presentation at the Colloquium and for publication in its Spring 2014 volume. We invite contributions in the form of articles or essays primarily focusing on: big data and concerns for civil liberties; government surveillance and Fourth Amendment protections; and issues involving Free Speech and First Amendment protections within the privacy context. Paper submissions should range from 10,000 to 35,000 words in length (including footnotes).
Draft papers and queries may be addressed to Sara Murphy, Symposium Editor, at email@example.com, no later than September 20, 2013. Please include “Privacy Colloquium” in the subject line. Submissions should include an abstract, curriculum vitae, and indication of your willingness and availability to travel to Portland, Maine, to participate in the Colloquium on Friday, February 21, 2014.[Top]
Maine Law Review
Volume 65, No. 2 (2013)
→ Symposium: Law, Religion, and Lautsi v. Italy
→ Case Notes
Colloquium: Local Food || Global Food:
Do We Have What It Takes to Reinvent the U.S. Food System?
Zoning and Land Use Controls: Beyond Agriculture
Lisa M. Feldstein
The Renewable Fuel Standard: Food Versus Fuel?
Brent J. Hartman
The New England Food System in 2060: Envisioning Tomorrow’s Policy Through Today’s Assessments
Margaret Sova McCabe and Joanne Burke
A National “Natural” Standard for Food Labeling
Nicole E. Negowetti
When Fox and Hound Legislate the Hen House: A Nixon-in-China Moment for National Egg-Laying Standards?
Lucinda Valero and Will Rhee
Liberty of Palate
Samuel R. Wiseman
Symposium: Law, Religion, and Lautsi v. Italy
Malick W. Ghachem
The Lautsi Decision As Seen from (Christian) Europe
The Law Court’s Proper Application of Miranda in State v. Bragg: A “Matter-of-Fact Communication” to the Defendant Regarding Evidence Against Him Will Not Typically Constitute “Interrogation”
Stephen B. Segal
Do front-yard gardens and backyard chicken coops, as leading symbols of our thriving food movement, deserve First Amendment protection, much as black armbands did during the Vietnam War? Does a focus on “food miles” distract from the urgent need to reduce the greenhouse gases agriculture emits as we strive to feed a world population of 9 billion by 2050? Should the government mandate vegetable consumption — just as New York City and others have enacted bans on Big Gulps and trans fats?