Fred Fletcher, September 15, 2019

Farewell to Humboldt

My family and I are relocating to Oregon although an office will be maintained in Eureka for awhile. We moved to Humboldt with hopes of helping to improve the community, and learned billions of dollars of cash floating around a rural county unleashes a distopia: "a place where the condition of life is extremely bad, as from deprivation, oppression, or terror."  Humboldt is full of wonderful individuals who are intimidated, uninformed, or tired of trying. Humboldt's golden age was when people did not inhabit her, and so we leave Humboldt. Please destroy English Ivy wherever you see her. 

August 18, 2019

Fred Fletcher 

Is Latin a Dead Language in Humboldt?

Latin is still used to describe legal doctrines. 

  • "Defacto" means "in fact"
  • "Ex parte" means "by one party"
  • "Fiat" means "let it be done"
  • "De novo" means "anew"

The term "de novo" is commonly used to describe the right to a new trial of an administrative hearing officer's decision if appealed. This is an important right that can effect disability payments, permit and license revocations, and property rights.  Without the right to a traditional "de novo" review of an administrative hearing officer's decision property and civil rights are at risk. An administrative hearing officer is someone the Government pays to determine the rights of its residents. Sometimes these hearing officers are unqualified, bias, or conflicted so California law allows their decisions to be reviewed by judges "de novo" or "anew."

Two Humboldt Superior Court Judges Kelly Neel, and Gregory Elvine-Kreis have determined the term "de novo" means the exact opposite of it's Latin origin. Both judges have held that a "de novo" review of an administrative hearing officer's decision is limited to the record at the administrative hearing meaning the review is not "anew" but is the opposite.  Our judges have decided nothing "anew" is allowed to be presented on appeal to challenge the hearing officer's decision. This is an astonishing holding (postmodernism?) which appears to contravene the findings of every other Judge in the State who has pondered the issue.  Will the Court of appeals agree with our Humboldt Court by turning Latin on it's head and disposing of due process? 


Fred Fletcher

July 15, 2019

Supreme Court Resurrects Property Rights from the Grave

Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)

Ms. Knick bought 90-acres of land in 1970 in Pennsylvania.  In 2008, rumors started to circulate a dead body was buried on her land. A relative of the dead body convinced (probably bought) the City Counsel to designate the land as a cemetery which forced Ms. Knick to allow visitors on her land. Ms. Knick sued in State court where her case was dismissed because the City had not filed an enforcement action against her. 

Ms. Knick petitioned the US Supreme Court to overturn a catch-22 for property owners. She claimed the City turning her property into a cemetery was an illegal taking (without just compensation) under the 5th amendment. Prior to this decision property owners were barred from seeking relief in Federal Court until they had sued and appealed all the way to the State Supreme Court. 

The US Supreme Court overturned this rule and now property owners can sue directly in Federal Court when a locality takes property without just compensation. This decision may bring an end to our local bureaucracy. 

Humboldt Planning and Building Department, Director John Ford on bottom right

Eureka Public Transit System

I've been grounded from driving since Mother's day due to a medical condition giving me an opportunity to review Eureka's public transit system.  On average public transit in Eureka is as fast as walking. 

California Proposes Reducing Cannabis Taxes to Fight Illicit Market 

Assembly Bill 286, dubbed the Temporary Cannabis Tax Reduction bill, would temporarily cut state excise taxes for legal marijuana retailers from 15 percent to 11 percent and also suspend cultivation taxes altogether through 2022.  The proposed legislation, which is sponsored by state Treasurer Fiona Ma.  “The whole aim of legalization is to compete with the illicit market and to get people to buy from the regulated establishments,” he said. “You can’t do that if the taxes are so high and onerous that people are driven out of that market.”

This is at odds with the taxing scheme in Humboldt were the black market is estimated to be 1,500% larger than the white market.  Yesterday, the Court refused to dismiss the Measure S lawsuit attorney Eugene Denson and I filed. The lawsuit seeks to return the tax to a crop tax as approved by the voters. The suit challenges the constitutionality of an amendment our county supervisors made to impose the tax whether or not plants are grown. 

Fred Fletcher

January 29, 2019

Human Rights Update

Judge, Haywood S. Gilliam Jr. of the US District Court in Oakland, on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives. 

Saul Loeb/AFP/Getty Images

New Laws in California for 2019

Farm Employee Overtime

In 2016, California became the first state in the U.S. to require employers to pay overtime for farm workers who work more than eight hours. The first phase of the new rules will begin in January, when agricultural employees will earn overtime after working 9 1/2 hours in a day or 55 hours in a week. Currently, California farm-workers can get overtime after working 60 hours in a week or 10 hours in a day.  The change only applies to businesses that employ at least 26 people. The rules do not apply to smaller agricultural employers until 2022. Our office consults with agricultural employers on compliance matters and we represent employees on wage and labor claims. Aside from wage and hour claims, sexual harassment and discrimination are constant concerns on the farm. 

Street Vendor Permits

A law going into effect in January will allow local governments to design permit programs for vendors and limits when they can be criminally prosecuted. It pertains to anyone selling food or other merchandise from a pushcart, stand or “non-motorized conveyance.” I anticipate the City of Eureka will embrace this new law and its economic benefits. I predict the County will ignore this law until the County is forced to follow it by a judge.  

Home Kitchen Businesses

A new law encourages Counties (like Humboldt) to permit home kitchens for the purpose of selling food products. California Assembly member Eduardo Garcia, who authored the bill, says that homemade food sales are a vital part of self-reliant communities. “Legitimizing these home businesses will offer a means of economic empowerment and pathways for many to achieve the ‘American dream,’” Garcia said when the bill was signed. Humboldt historically resists new opportunities which provide residents access to residual income. Perhaps after the County Supervisors election in 2020 progress will be made on this front.  

Fred Fletcher

January 17, 2019

The Measure S Lawsuit

Measure S is the cannabis cultivation tax the voters passed. We are challenging the County Supervisor's decision to amend Measure S as passed by the voters. The Supervisors amended the tax to apply to the property owner, not the farmer, and regardless of whether any crop is grown.  

Yesterday, we filed our response to the County's demurrer to the Measure S lawsuit. (Set to be heard January 28, 2019.) The County hired a large Sacramento Firm (founded the year I was born) to defend the lawsuit. They argue it's impossible to tax farmers for the actual crop grown because the County can't verify how much was grown. We informed the Court, governments since the beginning of governments have taxed farmers for crops actually grown, and we cited the Book of Genesis as our evidence.  

The amendments by the Supervisors have been misreported. The Supervisors amended Measure S to tax the permitted area regardless of the amount of crop grown.  As such, the supervisors have amended the tax to be assessed against fallow land, without regard to crop grown. We provided the Court authority that Measure S as amended is a property tax and is unconstitutional. We ask the Court to return Measure S to its original state which acted as an excise tax on legal crop actually grown. 

We will update this one. 

Fred Fletcher

January 15, 2019

County Supervisor's Can't Silence Critics, including Humboldt's Supervisors. 

In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her “Chair Phyllis J. Randall” facebook page.

Last election my office received a few complaints from citizens who were censored for making comments critical of politicians, on the left and right (somehow our local politics are becoming politically polarized). Now these citizens may have recourse. This First Amendment decision could impact local elections nationwide by allowing the public to be heard.    

Fred Fletcher

January 8, 2019

Update on Nation v Trump filed in the 9th Circuit

This lawsuit challenges HUD's rule which forces subsidized apartments to evict medical cannabis users. Plaintiff was evicted from her HUD apartment on July 10, 2018 when a maintenance man discovered some medical cannabis in her bedroom. She remains homeless and is not alone.

The lawsuit not only challenges HUD's rule but relies upon Murphy v NCAA (decided May 2018) to challenge the constitutionality of the Controlled Substance Act itself relative to medical marijuana in the State of California. The Supreme Court in Murphy v NCAA resurrected from near death the anti-commandeering doctrine, which in laymen's terms means the Congress cannot make orders directly to the States. 

We are optimistic this lawsuit will prevail. If the District Court issues an order in our favor appealing the decision would pose a political pitfall for the Trump administration. 

I will update this one.

January 3, 2019

Fred Fletcher 

Update on Volkswagen Diesel Fraud Case

We filed an action in Butte County on May 17, 2018 with the intent of having a jury decide punitive damages. We would be the first party to bring the defeat device case to jury trial.  Peer reviewed studies proved thousands of people with lung diseases died from the fraud.  


San Diego DA’s Prosecution of Cannabis Attorney Has Sent Chills Through the Legal Community

Posted by Lacy Fletcher on Thursday, August 10, 2017 Under: Cannabis Regulation

Jessica McElfresh, a San Diego lawyer experienced in cannabis law, is facing multiple felony charges.

Republished from Voice of San Diego.
By Jonah Valdez

On July 7, dozens of attorneys filled the seats of a small San Diego courtroom. The attorneys were attending a hearing for one of their own, Jessica McElfresh, a San Diego lawyer experienced in cannabis law.

McElfresh is facing multiple felony charges.

What drew most attorneys to court that day was something they consider sacred: the attorney-client privilege of McElfresh and her past clients was at risk. Prosecutors wanted to look through all of her records, not just the ones pertaining to the charges she was fighting. Prosecutors and the defense have agreed on a method that would protect the confidentiality of McElfresh and her clients, though Judge Laura Halgren has only dubbed the agreement a “starting point.” A lot of lawyers remain concerned about the direction of the case.

The prosecution comes at a time of increased uncertainty over how law enforcement will treat the marijuana industry in San Diego – and it’s being taken by some as a sign that it will not be permissive.

In late May, then-District Attorney Bonnie Dumanis filed a slew of criminal charges, alleging that James Slatic, a medical-marijuana entrepreneur, and his business partners sought to illegally manufacture and sell hash oil across the country. The defendants were also charged with money laundering and obstruction of justice.

The DA alleged that Slatic’s lawyer, McElfresh, was in on the scheme, saying that she hid evidence of the hash oil from city inspectors during an April 2015 inspection of Slatic’s Med-West facilities in Kearny Mesa.

The basis of the charges was an email McElfresh wrote to Slatic following the 2015 inspection. The email, a privileged attorney-client communication, was part of the trove of information and property seized during the DA-led raid of the Med-West facilities in January 2016, which drew widespread publicity and criticism.

“They’ve been there once and went away, operating under the theory that no actual marijuana is there,” McElfresh wrote in the email to Slatic. “We did a really, really good job giving them plausible deniability – and it was clear to them it wasn’t a dispensary. But, I think they suspected it was something else more than paper.”

“In that email, [McElfresh] essentially admitted she orchestrated a charade for city inspectors,” Deputy District Attorney Jorge Del Portillo wrote in court papers.

Slatic said the damning email was taken out of context. They were having a bigger, harmless conversation about a zoning inspection and making sure his facility was not mistaken for a dispensary.

Citing a rule that says a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime, Judge Charles Rogers ruled that the email was not protected by attorney-client privilege and could be used by the DA as evidence to file criminal charges. The ruling was the first of many red flags for other attorneys.

On the same day the charges were filed, investigators carried out a warrant and searched McElfresh’s home and office. Investigators took files, her desktop computer, laptop and cell phone.

During her years of practice, McElfresh has counseled hundreds of people about medical cannabis law. She did much of that work through email. After the search in May, the mostly email conversations with her clients, which are traditionally protected by attorney-client privilege, lay outside of her reach and up for debate in court.

Del Portillo argued for the “crime-fraud exception,” asserting that since McElfresh allegedly conspired to commit a crime with her Med-West clients, she loses her attorney-client privilege. “Notions of fundamental fairness demand that the privilege give way to justice,” Del Portillo wrote in court papers.

At the July 7 hearing, lawyers representing McElfresh’s former clients — medical marijuana businesses, nonprofits and political action committees — appeared in court to assert their attorney client-privilege.

Mara Felsen was one of those lawyers.

“When it became apparent that they were trying to evade the attorney-client privilege, there was a concerted effort to get all hands on deck and assert the attorney-client privilege, with respect to the clients,” Felsen said.

“We have several clients who may also be in the files that were seized by the DA,” said Gina Austin, an attorney representing Citizens for Patient Rights, a political action committee that advocates for local medical cannabis regulations, one of McElfresh’s former clients. “We are protecting our rights.”

Austin said that endangering attorney-client privilege could spell a soured relationship and broken trust between attorneys and clients.

“If the courts start to breach those confidential provisions, then the clients are not going to disclose info to us, and we’re not going to be able to adequately represent them,” Austin said.

Austin said that most of the lawyers she’s talked with feel it’s a terrible thing to see an attorney indicted for simply doing her job. Felsen has talked to other criminal defense lawyers and all see the case as “a shocking outrage,” she said. Though many attorneys feel the DA’s interpretation of the law is extreme, the fluidity of cannabis law and its evolving nature make it difficult when it comes to its application.

The only thing [McElfresh] did wrong was to advise a client in a field of law where the rules are rapidly changing, and what is legal and is not legal is not entirely clear on any particular point,” Eugene Iredale, McElfresh’s defense attorney, said.

Michael Crowley, a criminal defense lawyer and member of the San Diego County Bar’s Ethics Committee, has been watching the McElfresh trial from afar. What troubles him about the case is the lack of clarity around cannabis law.

Though the city of San Diego legalized recreational pot dispensaries in late January, it remains the only city in the county to do so. Statewide, the design of regulations is still unknown, as state officials are preparing for the 2018 rollout.

“It’s one thing to pass legislation, it’s another to implement it. That’s where attorneys come in. They need to give opinions on what the law says without fear of being prospected by a DA who thinks they know the law. An attorney needs to feel that they can freely give advice on areas that are murky in the law. Because everybody’s just trying to figure it out,” Crowley said.

The case has also laid bare a disconnect between the popular vote – the majority of county voters supported Proposition 64, the statewide measure legalizing recreational marijuana – and county officials’ stance on marijuana.

The County Board of Supervisors voted in March to ban any new marijuana businesses and phase out old ones in unincorporated areas of the county.

“Unfortunately, for whatever reason, the district attorney in San Diego County has historically fought a rearguard action against the changing norms and laws as represented by the democratic enactment of propositions regarding medicinal, and now recreational use of marijuana,” Iredale said.

“[The DA’s office], whether it be subtle, or expressed, are being pressured by political forces within the Board Supervisors who have shown disdain for the law that the people voted for overwhelmingly,” Crowley said, “They are using their own political views to thwart what the people voted for.”

Felsen, who has years of experience as a cannabis attorney, is used to seeing the DA come down hard on the cannabis industry, recalling aggressive prosecution toward minor cases. Raids on medical marijuana dispensaries were common throughout Dumanis’ term as district attorney.

The DA’s office is simply upholding the law, said spokeswoman Tanya Sierra.

“The DA’s Office will enforce the letter and the spirit of the new law, which includes protecting safe access to marijuana and protecting consumers from illegal business practices that could jeopardize public health,” Sierra wrote in an email.

Sierra said the Med-West case isn’t really about marijuana.

“It’s about safe access and a company that used toxic chemicals and pesticides in their products, potentially putting consumers’ health at risk,” Sierra said. One of the charges against Med-West is the chemical extraction of THC using “flammable, volatile and/or toxic chemicals,” a process outlawed by a state health code.

Part of the DA’s strategy to waive McElfresh’s attorney-client privilege has been to turn to federal law. Marijuana remains illegal at the federal level under the Controlled Substances Act.

Yet Halgren, the judge who presided over the July 7 hearing, said that federal law would not be considered in the case, since the search warrant was written under state and local provisions.

In a July 21 hearing, Del Portillo, the deputy DA, tried to argue that the search of the computer should be treated like a file cabinet, using broad terms like “ethanol” and “THC” or “marijuana” as search terms, to draw out any evidence.

Iredale argued such a search would be too broad and would put all of McElfresh’s past clients at risk of forfeiting their privilege.

Halgren sided with Iredale, saying that the “starting point” was to limit the search of the computer to the names and entities specified in the warrant with the exception of McElfresh’s name. Halgren added that the prosecution would be able to argue for other search methods in future hearings. All data collected in the search has been under review by a neutral, third-party expert assigned by Halgren to decide whether items are privileged.

Though the preliminary method of how to search McElfresh’s records was decided, Halgren said the court would revisit the prosecution’s argument on the crime-fraud exception in light of Rogers’ ruling on the April 2015 email between McElfresh and Slatic.

Iredale called the prosecution’s attempts to reach into McElfresh’s privileged conversations an “excessive overreach,” “unprecedented,” “truly extraordinary” and “frightening.” Though Iredale said he feels like he successfully preserved McElfresh and her clients’ confidentiality, some remain skeptical.

Omar Figueroa, a cannabis attorney and law ethics professor, took the trip from his offices in Sonoma County to attend the July 7 hearing to support McElfresh. He said that even with Halgren’s ruling limiting the scope of the computer search, he fears an appellate court could side with the DA, if it reaches that point.

For Austin, it’s still a “wait-and-see” situation. “We would hope the judicial system will work the way it’s supposed to work. We would hope that it goes the way you would want to see those protections and not have the chilling effect on the clients,” she said.

In : Cannabis Regulation 

Tags: lawyer  cannabis law  extracts  medical-marijuana  manufacture 


Nothing in this blog should be construed as legal advice. Warning may contain more opinions than facts.