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Published September 12 2010

Forum editorial: Judge's fake-pot decision is sensible

Last week saw a classic demonstration of the judiciary acting properly to rein in the power of the state. Cass County District Judge Wickham Corwin said the North Dakota Board of Pharmacy did not follow legal procedure regarding notification of an emergency rule that banned “synthetic marijuana.”

He dismissed two possession cases based on the “invalid rule” that has been promulgated by the state board.

The judge’s ruling does not necessarily go to the obvious dangers of a new drug, which probably should be as illegal as other banned substances. It does, however, do at least two worthwhile things.

First, the ruling puts the pharmacy board on notice that it must adhere strictly to procedures established in state law when attempting to ban a substance that comes under the board’s regulatory jurisdiction. The judge did not say so directly, but his admonition to the board could be read as warning the board of bureaucratic overreach in order to impose sanctions that should be debated by the Legislature.

Secondly, the effect of Corwin’s order is to advise law enforcement that the power of the state – in this case, the police – is not without restraints. He said the pharmacy board’s ban took a “lawful and widespread conduct” and “literally overnight” turned it into a felony crime punishable by up to five years in prison. He added that the rush to criminalize use and sale of the substance in question was not “a serious attempt to provide fair warning” of the change.

In other words, the judge was saying that whenever a new felony goes on the books, it’s a serious matter that requires more serious consideration and public notice than occurred in this case. If his ruling means charged cases already in the pipeline are dismissed, so be it. The greater good of appropriately checking state and police power has been achieved.

Forum editorials represent the opinion of Forum management and the newspaper’s Editorial Board.