Will Pot + RICO Challenge State’s Federalist Trend?

Marijuana plants grow at LifeLine Labs in Cottage Grove, Minn., in 2015. (Jim Mone/Associated Press)

Writing in The Washington Post, legal commentator Jonathan H. Adler outlines both the context and challenges facing “legal” marijuana now that a law targeting gangsters is being used for civil resistance to state pot reforms. We’ve reported before that the federal 10th Circuit court has taken a stand and it’s significant.

Adler outlines the federal context, including how the U.S. Congress has linked marijuana to funding legislation, before going into the looming challenges.
He notes that “… a bigger potential threat [to state legalization efforts] comes from the fact that marijuana possession and distribution are predicate offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO). This means that those who produce or sell marijuana are potentially subject to civil RICO suits, whether or not such activities are legal under state law. So held the U.S. Court of Appeals for the 10th Circuit earlier this year. A federal judge once described RICO as “the monster that ate jurisprudence.” Barring real reform at the federal level, it could be the monster that ate marijuana federalism, too. Here again, an appropriations rider is insufficient.
Adler is arguing that the RICO use is a threat to the “federalism” model for state control. 

Texas Journalist Explains Medicaid Flaw In Asbestos Lawsuits, Calls For Change

Photo Credit: File photo, Dallas Observer article, August 13, 2017

A Dallas-based journalist who pioneered coverage of asbestos lawsuit issues is calling for changes while explaining a “Catch 22” that could be shortchanging states’ Medicaid coffers. Christine Biederman, writing as a contributor to The Hill newspaper in Washington D.C., explains that “… Medicaid secondary payer laws provide states potential funds. For example, if a Medicaid enrollee is sickened by asbestos, and Medicaid pays the healthcare bills, Medicaid is entitled to a share of any future personal injury settlement. Medicaid is theoretically required to recover part of the settlement.”

Biederman, who wrote a landmark Dallas Observer investigative story “Toxic Justice” 19 years ago, adds that “… in practice, this means that unless a lawyer, a defendant or another party to a personal injury claim is located in the same state as a Medicaid beneficiary, and thus required by state law to report payments, the state Medicaid agency will likely never learn about the money. Of course, the enrollee is supposed to report the windfall. If you think that usually happens … please get in touch, because I have an investment opportunity for you.”

The story benefits from the fact that Biederman is herself a Texas attorney and will be must-read material in the asbestos world. (Disclosure: Ms. Biederman contributed reporting to the documentary UnSettled by Canadian journalist Paul Johnson; the Courts Monitor has shared resources and research with producers of that film, scheduled for release this fall.)

Medicaid Catch-22: It’s time for the asbestos trusts to do what’s right

Legal Pot Might Be Sued Out of Business

The original suit claimed that the aroma from a nearby marijuana grow made horse riding less pleasant.Thinkstock file photo

A ruling by the U.S. Court of Appeals for the Tenth Circuit is raising eyebrows in the legal marijuana industry and the Denver weekly newspaper Westword warns that the litigation “… is based on federal racketeering laws, that anti-marijuana forces hope will help them destroy the marijuana industry here and throughout the country.”
At issue is an argument that a Colorado pot-growing operation damages neighboring property owners — they say their horse-riding experience is diminished by the smell from marijuana and other concerns, including construction. In its decision, the 10th Circuit effectively found that the plaintiffs’ use of the Racketeer Influenced and Corrupt Organizations Act (RICO) statute had merit because the adjacent property violates federal laws against marijuana, which is specifically mentioned in the RICO laws.
Westwood breaks it down: “This ruling could be game-changing. If the Reillys and Safe Streets Alliance succeed, other individuals or groups would be able to file complaints against marijuana businesses using RICO on a scale so massive that the entire industry could sink under the weight of litigation — or so opponents hope.”
Read the story here:
How Bizarre Pot Smell Ruling Could Destroy Colorado’s Marijuana Industry

New York City Embraces Civil Gideon

New York City’s Right to Counsel bill, proposed by Councilmember Mark Levine (pictured), passed on Thursday. Photo Credit: MoneyBox online article, 7/21/17

The argument for Civil Gideon process took a major step forward last week when the New York City Council passed legislation in support of legal representation in eviction cases. Sponsored by Manhattan City Council Representative Matt Levine, the measure allows the city to appoint counsel for those facing eviction court.
Though Mayor Bill DeBlasio is expected to sign the bill, the process will not happen overnight. The plan is to phase the assistance in over a five year period. A recent article in Slate Magazine pointed out that in the 150,000 housing eviction cases in the city, tenants in eviction cases were victorious in 77% of cases when legal counsel was appointed.

Read the Slate story here:

http://www.slate.com/blogs/moneybox/2017/07/21/new_york_city_has_taken_up_the_fight_against_the_eviction_machine_in_a_big.html

Massachusetts’ Top Court Nixes Immigration ‘Holds’

Photo Credit: The badge of a U.S. Immigration and Customs Enforcement’s (ICE) Fugitive Operations team is seen in Santa Ana, California, U.S., May 11, 2017.
Lucy Nicholson/File Photo

The top Massachusetts court has ruled that police and court officers do not have authority to detain undocumented immigrants until federal law enforcement officials can take them into custody, a controversial practice called a “hold” that is debated around the country. It is believed to be the first time a state supreme court has ruled to ban the practice and the Reuters news service says the “… decision amounts to a rejection of requests by the federal Immigration and Customs Enforcement agency for courts and law enforcement agencies to hold illegal immigrants, who are facing civil deportation orders, in custody for up to 48 hours after their cases are resolved.”

The court ruled that ordering the hold amounts to a “fresh arrest” and said there is no authority to do so. News organizations quoted ICE officials as saying they are reviewing the decision.

Read the Reuters story here: Massachusetts cannot hold immigrants so U.S. can detain them: state top court