From Ed Denson:

Well, friends, the Measure S lawsuit decision has come down. I heard about it around 2:15 this afternoon from my co-counsel, Fred Fletcher. I suppose that now that the decision is released, I should phone Netflix and see if they want to follow up on the footage they shot of Fred and I filing the suit way long ago.

I’m sure you remember the basis for the suit. Right? We’ll let me refresh your memory a bit. In the legalization delirium the county put Measure S on the 2016 ballot. All the growers were running around saying, legalize it, tax me, make pot part of norml American life. The wise members of the Board of Supervisors heard the outcry of the people, and they drafted Measure S as a tax on legal commercial cannabis. Frankly it didn’t sound like much of a tax. $1 a square foot for outdoor growing. But it was a real tax, $1 a square foot wasn’t much but it was enough to show that pot had come out of the shadows into the mainstream of our society. So, it passed, it passed by about 62% if I recall properly. We were ecstatic. A dream held for so many years had come true, and a bright tomorrow awaited all the family growers at the end of so many winding dirt roads in the hills. No more helicopters, no more vandalism by the cops, growers could hold their heads up and become Rotarians.

I’m a lawyer, and made a career out of defending busted pot growers. Suddenly there were essentially no busted pot growers. What to do? I started helping unbusted pot growers get licensed. (And many thanks to Paul Gallegos for nudging me into it.) So I was cheerfully giving advice in late 2017 about Measure S, among other things, and some detail slipped my mind. So I went to the internet and found the county code for the Measure S tax. It wasn’t anything like what I remembered, and it wasn’t anything like what I was advising people it was. It was much less favorable to growers, all sorts of stuff seemed different. Well, I’m getting up in years. Perhaps I had had a senior moment. Still something bothered me because I had such a clear idea of what the Measure S tax was and how it worked. That clarity is not typical of senior moments.

As time went by I poked around, and one day I found the original text of Measure S, just like it was on the ballot we all voted for (I did, how ‘bout you?) And lo and behold the original text was just as I remembered it. I wasn’t having a senior moment, someone had changed the text after the vote.
I thought about that for a while, and found the date the changes were made (mid-year 2017) by the Board of Supervisors. Only Supervisor Ryan voiced any concern about changing what the voters had approved, and that concern was fleeting. He voted to make the changes, along with the other Supes.

Can they do that? I wondered. So in some spare time I poked around again, and sure enough the answer was no. In fact it was NO! I mentioned what had happened to a few other lawyers I encountered in the cannabis bar, in various counties, and they all agreed. The Board of Supervisors cannot change a tax after the voters have approved it. Huh, I thought. Someone ought to sue them. Certainly not me. I’ve never done a civil suit except a few asset forfeiture cases, and I don’t know how to write them. Well, someone will see this opportunity to benefit the people of the county and seize it. Wrong. Some felt that if they sued they’d get on the wrong side of the county government with unspecified bad results. Others distrusted the honor of the courts, sort of “the judges are all in the pockets of the Board” so the suit will never get anywhere. Some probably thought such a suit will never make any money, it’s a waste of time.

Then I found Fred Fletcher and he liked the suit and became my co-counsel. Most importantly, he knew how to write civil suits and he wrote up a beauty. I tinkered with the language a bit, but fundamentally it was his authorship. About this time Netflix came to town to do their Murder Mountain “documentary.” It must have been mid 2018. They came to film me (I got about 15 seconds of screen time) and got excited about the suit. Their film crew came and filmed the filing. The press was there too. But lawsuits move slowly and they had a film to get out, so all their lawsuit film ended up on the cutting room floor, as they say. Actually , probably in storage somewhere. The press went off to cover other stories.

Criminal law moves slowly. My longest case took 4 years. That was exceptional, but 1 or 2 years is not. That’s the Indie 500 compared with Civil Law cases which are glacial. So, autumn turned to winter, 2018 turned to 2019, and 2019 to 2020 and still the suit was in the courts. Gradually, over time, people stopped asking about it. I did get an email from county counsel of another county recently asking about it, “did the county settle” they asked. “No,” I said, “we’re finished arguing the case and now we’re awaiting the judge’s opinion. It’ll probably take a few more months.”

Wrong. Fled Fletcher called me around 2:15 today. He found a copy of the judge’s opinion in his box at the courthouse. “And?”, I said. “And we won,” he said. It turns out we won 3 of the 5 points at issue. The judge said that the county could not change the person taxed from the grower to the property owner, and they could not change the area taxed from the cultivation area to the area on the county permit, and they could not charge anything to people who had a permit but didn’t grow.

On the other hand, although the ballot measure said the tax was biennial, (spell check didn’t know the word, it means collected every 2 years) that was what we in the law call a “scrivenor’s error” (spell check didn’t know that one either) for biannually (twice a year), and although the ballot measure said that to be taxed you had to be cultivating in compliance with local, state, and federal law, no voter could have believed that the tax would be held up until federal legalization. Had we prevailed on the federal issue, no one would have owed any tax at all. As the law stands with this decision, some people have been wrongfully taxed, others have been rightfully taxed. The wrongfully taxed should get refunds, with interest, I think.

However, the story may not be at its end yet. The county has a period of time in which to appeal, and who knows we may be headed for the US Supreme court sometime in the 2020s. If it’s going that way I plan on living long enough to see it happen.

So, good night, friends. May you dream big and your dreams come true. Sleep well.