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Town of Grand Chute v. Michael J. Kettner, 2009AP2369, District III, 4/20/10

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Controlled Substance – Prescribed by Out-of-State Doctor
Possession of marijuana, prescribed by California doctor under laws of that state, may be prosecuted in Wisconsin: though an exception exists for possession obtained by prescription from a “practitioner,” § 961.41(3g), the practitioner must be licensed in Wisconsin, § 961.01(19)(a). ¶10.

Well, the court’s conclusion might be grammatically sound, but its terse discussion does leave a bit to be desired. The obvious problem: anyone obtaining a controlled substance per perfectly legal script issued in another state is guilty of possession in Wisconsin? Seems like an absurd result. At a minimum, the conundrum ought to create sufficient ambiguity to require research into the legislative history. If anyone’s interested enough to undertake the task, start with § 161.01(19) (1973-74), and keep in mind that it was a uniform act (“Uniform Controlled Substances Act,” which of course means a decent likelihood of finding relevant foreign authority). But give the court its due. Here’s the factual background the appellate court was constrained to accept:

¶3 At the trial to the circuit court, Kettner stipulated he possessed the marijuana and pipes. However, he presented a typewritten medical authorization to possess marijuana, signed by a licensed California medical doctor. The circuit court received the authorization as a marked exhibit and accepted it “as a genuine document issued by Dr. Ironside.” Kettner argued he legally possessed the marijuana pursuant to Wis. Stat. §§ 961.41(3g) and 59.54(25).

Hmm. That wouldn’t be Robert T. Ironside, would it? The court of appeals’ (unspoken) skepticism (if that is indeed what it is) about the validity of the script might explain its indifference to detailed analysis. On the other hand, the Town had abundant opportunity to investigate the prescription and there is absolutely nothing in the opinion to suggest doubt as to its validity. Indeed, one Paul A. Ironside, Jr., a thoracic surgeon licensed in Cali and no known relation to  Robert T., is on staff at “The Hemp and Cannabis Foundation.” That Kettner’s script was as legit as one for Allegra only throws into high relief the court’s scant attention to the implications of its holding. Which leaves another possible explanation for the court’s terse statutory-construction analysis: it went on to vacate the ordinance conviction anyway (because the Town ordinance didn’t track the state statute, and instead didn’t require a Wisconsin license). But in that event, the wiser course would have been simply to pass over the statute, because of its patent irrelevance. Indeed, you might argue that the statutory-construction discussion is really just dicta for that very reason.

Counsel – Sanctions
Counsel’s “brazen misrepresentations, which are not supported by record citations,” were “knowing” in nature and support a penalty of $200, along with award of costs to Kettner, ¶¶13-15.

Fair to say the court was mightily irked by what it regarded as intentional misconduct. And maybe the misconduct was undeniable. But at some point, doesn’t counsel have the right to at least an opportunity to be heard before the court starts trimming financial assets? Why should counsel’s right to due process be less than anyone else? See, for example, Howell v. Denomie, 2005 WI 81, ¶17 (“in order to determine that an appeal is frivolous, the court of appeals is required to give notice that it is considering the issue. It must also give an opportunity to respond to the issue before a determination is made.”); and Johnson v. Cherry (Appeal of Clinite), 7th Cir No. 04-3562, 9/6/05 (before imposing sanctions, in amount of $1300, against attorney for alleged misconduct, court was required to afford “notice of the specific conduct for which it was contemplating sanctions,” and opportunity to mount defense).

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