Recreational use of marijuana is now legal in Minnesota.
However, for the most part, sale of it is still not permitted for several months until the state licenses dispensaries. Some contend that the Minnesota State Constitution gives individuals a right to sell marijuana? Does it?
Most people are familiar with the U.S. Constitution and Bill of Rights. The latter protects rights such as free speech, a right to bear arms or a right to free exercise of religion. But states also have their own constitutions and bills of rights. Often the rights found at the state level include some not found at the federal level. The same is true in Minnesota.
Among the unique rights in Minnesota is one reported on earlier in MinnPost found in Article XIII, Section 7. Adopted in 1906, the clause says: “Any person may sell or peddle the products of the farm or garden occupied by him without obtaining a license thereof.” What does this language or right protect?
First, the amendment was adopted to overturn a 1904 Minnesota Supreme Court decision State v. Jensen. In that case the court upheld a Minneapolis licensing and fee process for farmers to go door-to-door to sell their produce. The Minneapolis requirement and the Supreme Court decision so enraged the public that a constitutional amendment was adopted. The amendment perhaps reflects the traditional role and importance of farming and agriculture in the state and of what the public believed was a right of a farmer to travel from the farm to the city to sell farm products directly to customers at their door.
What does the amendment really mean or protect? There is very little case law on it and there is no definitive Minnesota Supreme Court opinion on what the amendment means or protects. At best there are Court of Appeals and attorney ceneral opinions that offer some clues.
A plain reading of the words of the amendment seem to suggest that anyone who grows their own marijuana in their own garden should be able to sell it now. Raise some pot plants in your backyard and sell to your friends? Perhaps set up a little farm stand or operate your own store? This sounds like a way around the current ban on marijuana sales. However, selling your own marijuana is more complicated than you might think based on what the courts have said.
First, in 1998 in State v. Wright the Minnesota Court of Appeals said the purpose of this amendment was to help farmers bring their crops to the market but that it did not create a fundamental liberty or right to sell farm crops. Instead as the court said in this case, the state still has the right to make some products illegal and to regulate their use. In the Wright case, the court specifically ruled that this Amendment does not protect marijuana sales and it could be regulated.
Moreover, the state and local governments have broad authority to regulate farm products for health and safety reasons. Thus in the 2005 State v. Hartmann opinion the Minnesota Supreme Court ruled that the sale of farm-raised meat could be regulated to assure public health. Similarly the state may ban the sale of unpasteurized milk or dairy products.
Given these decisions, the state could ban or regulate the sale of marijuana even by individuals who grow it on their farms or in their backyards. It could also attach conditions to regulate THC levels, make sure the marijuana is free from dangerous chemicals or that it is pure, or to prevent minors from purchasing it.
But additionally, note also what the amendment protects “sell or peddle.” What does peddle mean? According to the Court of Appeals in the Hartmann opinion, “peddle” meant to go “door-to-door” to sell farm products. It does not refer to sales from a fixed location such as a store. According to an attorney general’s opinion, sales from a fixed location such as a farm stand or store is not peddling and it could be licensed or regulated.
[image_caption]David Schultz[/image_caption]
It is possible the few court cases examining this amendment have gotten it wrong and a case can be made that they are worth reexamining. However right now Article XIII, Section 7 does not look like a winning strategy to get around the current ban on marijuana sales.
David Schultz is a distinguished professor at Hamline University in the departments of Political Science, Legal Studies and Environmental Studies.
Good Grief. Can we conjure up any more ludicrous hypotheticals regarding the legalization of cannabis in this state?
There seem to be quite a few holes in the logic as described. Let me plug in one and point out others. While sales from a fixed location “could be” regulated, that does not mean it is regulated. Nevertheless, the marijuana law does apply. As ‘retail sales’ do apply to fixed locations. No, you can’t deal weed from your home.
On the other hand, those selling such plants can no longer ignore how the totality of Minnesota law applies to selling products. And such laws have various levels of complexity. I’m not going to pretend I’m fully aware of the law here, but it is highly likely to be much more complex than presented.
I do note that the Jenson case involved a farmer selling from a wagon on the street. ‘Door to door’ doesn’t quite work for that… Are food trucks peddling, or something different? Should we regulate them the same?
Neither has a ‘fixed location. How about a one off ‘garage sale’? Or a single ‘private sale’? I’m not sure we fully covered all the variables that apply.
Then again, MN law determines that pretty much type of product sold, no matter how, is retail. And all retail sales of weed need to be licensed.
“Raise some pot plants in your backyard and sell to your friends? ”
Friends don’t sell weed to friends, they give it to them as a nice gesture of being friends.
All cannabis sold here in Montana from a licensed dispensary is required to be tested and certified by the state, including THC content, strain, terps and a lot more. To think that any state government would allow for a roadside weed seller absent any oversight to peddle their wares is not going to happen – regardless of an old state law in Minnesota. There’s also the issue of taxes, which the government likes to collect, and recreational weed taxes are high.
Finally, cannabis is still illegal under federal law, so while some state may tell folks, sure go set up a stand, we’ll look the other way, the feds however, would take a different more punitive approach.
Door-to-door weed sales! This will revolutionize the fund-raising for high school marching bands all across the state.
It makes some difference with what the law states.
It makes a difference if the State or local authorities will enforce the law.