Blowing Smoke: Dee v. State

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.

Join the Maine Law Review and the Muskie School of Public Service in Celebrating the Legacy of Ed Muskie

MLR Muskie Symposium

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Introducing the Maine Law Review, Volume 67!

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

Editor-in-Chief

Samuel J. Baldwin

Editorial Team

Executive Editor:       Juliana O’Brien*

Symposium Editor:    Elizabeth Frazier*

Articles Editors:        Xi Chen & Benjamin Wahrer

Production Team

Managing Editor:      Ari Solotoff*

Production Editor:     Derek Jones

Technical Editor:       Laura Shaw

Research Editors:      Mikala Noe

Writing Team

Head CN/C Editor:      Joseph Gousse*

CN/C Editors:             Pardis Delijani & Brandon Farmer

 

 

* Executive Board Members

 

Maine Law Review Staff

Anthony Aloisio

Emily Atkins

Kasey Boucher

Benjamin Dexter

Cynthia Hunter

Samuel Johnson

Daniel Keenan

Peter Kenlan

Nicholas Kline

Benjamin McCall

Carson Phillips-Spotts

Patrick Redding

Mark Rucci

Daniel Taylor

Elizabeth Tull

Academic Advisors

Professors Dave Owen and Dmitry Bam

 

 

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Maine Law Review, Vol. 66, No. 2

CONTENTS

Symposium: Who’s Governing Privacy?  Regulation and Protection in a Digital Era

Foreword

Peter J. Guffin, Kyle J. Glover, and Sara M. Benjamin

Articles

The Glass House Effect: Big Data, The New Oil, and the Power of Analogy

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

The Promise and Shortcomings of Privacy Multistakeholder Policymaking: A Case Study

Omer Tene and J. Trevor Hughes

Privacy Law’s Precautionary Principle Problem

Adam Thierer

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

Comment

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

Case Notes

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

Benjamin Wahrer 

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Maine Law Review, Vol. 66, No. 1

Maine Law Review, Vol. 66, No. 1

Articles

Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax

Jennifer Bird-Pollan

The Magic Mirror of “Original Meaning”: Recent Approaches to the Fourteenth Amendment

Bret Boyce

The State Response to Hazelwood v. Kuhlmeier

Tyler J. Buller

Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School

Shailini Jandial George

Election SLAPPs: Effective at Suppressing Political Participation
and Giving Anti-SLAPP Statutes the Slip

Leah McGowan Kelly

Book Review

More Than a Ramble: A Law Student’s Review of Hugh G. E. MacMahon’s Progress, Stability, and the Struggle for Equality: A Ramble Through the Early Years of Maine Law, 1820-1920

Christopher Harmon

Comments

Allocating Power: Toward a New Federalism Balance for Electricity Transmission Siting 

Kevin Decker

The Post-Crawford Rise in Voter ID Laws: A Solution Still in Search of a Problem

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

Case Notes

Personal Jurisdiction in the Data Age: MacDermid v. Deiter’s Adaptation of International Shoe Amidst Supreme Court Uncertainty

Ryan Almy

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 

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Maine Law Review 2014 Privacy Symposium

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:
PA logo 4C process for coated paper jpeg (W3040343x7AC2E)IAPP New Logo 1209 FINALML_Logo_SBA_CMYK_r3idexx-laboratories-color-rgb[1]Unum May, 08' new logo!!!
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Introducing the Maine Law Review, Volume 66!

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

Editor-in-Chief

Amy Olfene

Editorial Team

Executive Editor:       Rachel White*

Symposium Editor:    Sara Murphy*

Articles Editors:         Kevin Decker, David Faherty, Stephen Segal

Production Team

Managing Editor:       Adam Quinlan*

Production Editor:     Anna Polko

Technical Editor:        Meghan Myers

Research Editors:      Emily Gaewsky, Ashley Janotta

Writing Team

Head CN/C Editor:      Ryan Almy*

CN/C Editors:        Christopher Harmon, Elizabeth Valentine

* Executive Board Members

Maine Law Review Staff

Samuel Baldwin

Xi Chen

Caitlin Clark

Pardis Delijani

Brandon Farmer

Elizabeth Frazier

Joseph Gousse

Derek Jones

Mikala Noe

Juliana O’Brien

Laura Shaw

Austin Smith

Ari Solotoff

Kathleen Taylor

Benjamin Wahrer

Academic Advisors

Professors Dave Owen and Dmitry Bam

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Maine Law Review 2014 Call for Papers

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 mlreditor@maine.edu, 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.

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Maine Law Review, Vol 65 No. 2 (2013) Contents

Maine Law Review
Volume 65, No. 2 (2013)

Colloquium:  Local Food || Global Food:  Do We Have What It Takes to Reinvent the U.S. Food System?
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?

Introduction

Essays

Legal Institutions of Farmland Succession:  Implications for Sustainable Food Systems
Jamie Baxter

From “Food Miles” to “Moneyball”:  How We Should Be Thinking About Food and Climate
Bret C. Birdsong

The Symbolic Garden:  An Intersection of the Food Movement and the First Amendment
Jaime Bouvier

Obesity Prevention Policies at the Local Level:  Tobacco’s Lessons
Paul A. Diller

Zoning and Land Use Controls:  Beyond Agriculture
Lisa M. Feldstein

Food Safety and Security in the Monsanto Era:  Peering Through the Lens of a Rights Paradigm Against an Onslaught of Corporate Domination
Saby Ghoshray

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

Whatever Happened to the “Frankenfish”?:  The FDA’s Foot-Dragging on Transgenic Salmon
Lars Noah

Follow the Leader:  Eliminating Perverse Global Fishing Subsidies Through Unilateral Domestic Trade Measures
Anastasia Telesetsky

When Fox and Hound Legislate the Hen House:  A Nixon-in-China Moment for National Egg-Laying Standards?
Lucinda Valero and Will Rhee

Preempting Humanity:  Why National Meat Ass’n v. Harris Answered the Wrong Question
Pamela Vesilind

A Hungry Industry on Rolling Regulations:  A Look at Food Truck Regulations in Cities Across the United States
Crystal T. Williams

How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States:  The Case of Needled Meat
Diana R. H. Winters

Liberty of Palate
Samuel R. Wiseman

 

Symposium:  Law, Religion, and Lautsi v. Italy

Introduction
Malick W. Ghachem

Essays

Freedom of Religion and Freedom from Religion:  The European Model
JHH Weiler

The Lautsi Decision and the American Establishment Clause Experience:  A Response to Professor Weiler
William P. Marshall

The Lautsi Decision As Seen from (Christian) Europe
Pierre-Henri Prélot

 

Case Notes

State v. Brown:  A Test for Local Food Ordinances
Ryan Almy

Recognizing Gestational Surrogacy Contracts:  “Baby-Steps” Toward Modern Parentage Law in Maine After Nolan v. LaBree
Adam Quinlan

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

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The Portland Phoenix Reports on the Food Law Colloquium

“Maine Law Colloquium Embraces Local Food”

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?

Read more: http://portland.thephoenix.com/food/152318-maine-law-colloquium-embraces-local-food/#ixzz2MOh3pjMq

 

 

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