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Amy Dalrymple, Forum News Service, Published September 15 2010

Cass County not appealing synthetic marijuana cases

BISMARCK – Cass County prosecutors will not appeal two synthetic marijuana cases that were dismissed by a judge, but the county plans to enforce the rule starting Oct 1.

Cass County State’s Attorney Birch Burdick said Tuesday that his office will dismiss other pending cases out of deference to Judge Wickham Corwin’s ruling.

Corwin issued an opinion in Cass County District Court last week that said the North Dakota Board of Pharmacy didn’t properly notify the public after it adopted an emergency rule Feb. 25 that bans synthetic marijuana.

On Tuesday, the Legislature’s Administrative Rules Committee considered the synthetic marijuana rule but took no action, essentially affirming it.

“They didn’t really take any action, which means the rule becomes effective,” said John Walstad, code reviser for the Legislative Council.

The attorney general’s office believes the public was properly notified of the synthetic marijuana rule, testified Mike Mullen, assistant attorney general.

Rep. Kim Koppelman, R-West Fargo, said the committee isn’t in a position to determine if there was proper public notice.

“As far as we know, everything was followed accordingly because the attorney general has told us it was,” Koppelman said.

In addition to widespread news coverage, agents from the Bureau of Criminal Investigation went to people they believed sold the synthetic products to inform them of the rule, Mullen testified.

There was some confusion during the meeting about whether the effective date for the synthetic marijuana ban would be Feb. 26, when the emergency rule took effect, or Oct. 1, which is when other final rules go into effect.

Walstad said the committee, by not taking any action, affirmed the rule going back to February.

Corwin’s ruling is not binding on other criminal cases, but Cass County is handling the cases differently “out of deference” for his ruling, Burdick said.

In addition to dismissing pending cases, prosecutors will decline to prosecute any other reports that may come to them and seek to reopen any similar cases in which defendants entered a plea to have those charges dismissed, Burdick said.

Cass County law enforcement will be asked to not pursue similar charges at this time, Burdick said.

On Oct. 1, assuming the proper public notice and implementation of the rule is followed, Cass County would begin enforcing the rule, Burdick said.

Corwin stated in his opinion that the North Dakota ban took a “lawful and widespread conduct” and “literally overnight” turned it into a felony crime punishable by up to five years in prison.

Attorney General Wayne Stenehjem said he respects how Cass County prosecutors have decided to handle the cases.

Those defendants were users of synthetic marijuana, and Stenehjem said he’s more worried about the people selling the products.

Rep. Randy Boehning, R-Fargo, said he agrees that the product should not be sold in North Dakota, but he has concerns about the emergency rule process. Boehning said the rule has serious consequences and he would have preferred that the issue come before the entire committee.

“You’ve kind of got to look out for the citizen, too,” Boehning said.

Howard C. Anderson Jr., executive director of the Board of Pharmacy, said the emergency process was used in the interest of public health. Waiting for a legislative session would have taken months, Anderson testified.

“We felt that was too long to protect the public from use of these substances,” Anderson said.

Walstad said he’s heard that other jurisdictions around the state may have challenges similar to Cass County’s.

“Maybe we’ll end up with an appeal to the Supreme Court,” Walstad said. “We’ll let it play out through the courts and see what they conclude.”


Readers can reach Forum reporter Amy Dalrymple at (701) 241-5590