Peter Jensen just wanted to sell his extra melons.
The Minnesota man grew melons on his farm and usually sold them at a Minneapolis farmer’s market, the most common way for city residents to buy fruits and vegetables. One day back in 1903, having not sold the entire crop, Jensen began promoting the excess from his wagon while driving slowly back home. He got rid of the extras and residents along the way got a discount.
Win-win, right? It was, until a city cop approached Jensen and asked for his peddler’s license. According to “A Farmer’s Fight,” by John Tuma, Jensen thought he shouldn’t need such a permit, as farmers were allowed to sell at markets without licenses.
The cop didn’t care what Jensen thought. Neither did the judge who fined him $10. Neither did the state Supreme Court, which upheld the fine and the city ordinance in 1904.
But Alwin Rowe cared. Rowe was a German-born resident of St. Paul and state legislator who listed his occupation as “market gardener,” again, according to Tuma. In his first year in office, Rowe proposed a constitutional amendment that was sent to voters who adopted it by a large majority. It read: “No license required to peddle. Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
Initially placed in the Minnesota Constitution’s Bill of Rights, it was later moved to Article 13, which contains miscellaneous provisions. It is that Article 13, Section 7 that many marijuana legalization advocates in Minnesota list on their websites, posters and buttons, arguing that they have a constitutional right to grow marijuana and sell it without state interference. When marijuana was illegal, courts negated the impact of Art. 13, Sec. 7 on cannabis sales. But when it becomes legal to grow and possess on Aug. 1, does the legal calculus change?
The new law allows anyone age 21 and older to grow up to eight marijuana plants in their homes or yards. While they can give away some of the flower, they cannot sell it. To do so would require a license from the state and entail a litany of legal requirements. No one will be allowed to sell marijuana flower that they grew themselves without following the new law.
“We are obligated to point out that the law’s licensing system glaringly violates both the letter and spirit of Article XIII, Section 7 of the Minnesota constitution,” wrote Grassroots – Legalize Cannabis Party founder Oliver Steinberg while House File 100 was being debated.
After the bill was signed, Steinberg said he thinks the constitutional protection would apply only to individuals, not companies.
“Starting with the premise that cannabis is a plant, not a crime, we envision a peaceful community where growing a little hemp to smoke, share, or sell at farmers’ markets is no more unusual than growing rutabagas or zinnias,” wrote Steinberg in response to a question about how he thinks the constitution will impact legal cannabis in Minnesota.
But Rep. Zack Stephenson, the Coon Rapids DFLer who was the prime sponsor of House File 100 in the House, said he doesn’t think the provision will impact the regulation created in the new law.
“I think the case law suggests that regulation is permissible,” he said. “I think there is strong government interest in regulating here. This isn’t carrots or pumpkins, this is an intoxicating substance.”
Thin case law
The case law on Art.13, Section 7 is thin. Its application to marijuana is thinner still.
Chris Wright might be a familiar name to voters who look past Republicans and DFLers on their ballots. One of the founders of the marijuana legalization parties in Minnesota, Wright has run for governor, Congress and the state Legislature. In 1998, he was the named party in a state Court of Appeals ruling in State v. Wright. That case raised the issue of whether the state constitution protected Wright’s legal right to grow and sell marijuana from his Minneapolis home.
Wright had been charged with sale of marijuana. But Wright and his attorney Randall Tigue argued that Art. 13, Section 7 made the charge unconstitutional. While marijuana was illegal in 1996 when he was charged, when the constitutional amendment passed in 1906 it was “every bit as legal a substance in the State of Minnesota as wheat, corn, oats, and soybeans,” Wright argued.
“This court finds Defendant’s arguments unpersuasive,” wrote the district court. On appeal, the court found that because marijuana was illegal and because previous courts had upheld those statutes, the constitutional provision did not apply. Even the peddler provision of the constitution does not create a fundamental right that would have imposed stricter requirements on the government to show its laws are constitutional.
“We do not have the prerogative to disregard the supreme court’s analysis of marijuana laws,” the appeals court wrote. “Having concluded that this case does not present the conflict of a fundamental liberty with the established police power prohibition of the sale of marijuana, we decline to engage in further discussion of the meaning of Article 13, Section 7.”
The constitutional provision was cited heavily in a later case involving the sale of custom-processed meat by Diane and Michael Hartmann who were convicted of failing to obtain a license. In State v. Hartmann, the Supreme Court affirmed lower court in part and reversed in part. No, the Hartmanns could not be required to get a license to sell the meat from animals they raised on their farm near Gibbon.
“The circumstances leading up to the passage of article XIII, section 7, make clear that the voters of Minnesota intended to protect the commercial relationship between farmers and their customers by restricting the state’s power to license the sale of farm products directly to the consumer,” wrote the court in its decision in State v. Hartmann. This view is supported by this court’s observation in a 1925 case that Article 13, section 7 gives “recognition to the fact that tillers of the soil stand in a peculiar position in reference to the marketing of their products, and it prohibits the imposition of a license to sell or peddle the same.”
“The language of article XIII, section 7, is broad and clear. Defining ‘products of the farm’ to include any farmer’s product for which a license may issue gives effect to the ‘clear, explicit, unambiguous and ordinary meaning of the language’ and honors the intent of the Minnesota voters who ratified Minn. Const. art. XIII, § 7. Therefore, the Hartmanns may not be prosecuted for failure to obtain a license to sell meat products of their farm.”
But the state can impose regulations to assure public health and safety. While a license to sell cannot be required, “… we read article XIII, section 7, to exempt farmers from licensure to sell products but not from substantive regulation of the production or sale of their farm products,” the court majority wrote in 2005.
And the underlying legality of the farm product is a factor as well.
“We do not believe, however, that article XIII, section 7, can reasonably be read to grant farmers the right to sell products of the farm, the growing or sale of which is otherwise prohibited by law. This provision merely provides that products of the farm for which any person may obtain a sales license; i.e., lawful products, may be sold by farmers without obtaining a license to do so.”
The same court puts the exception in a slightly different, but perhaps significant, way later when it writes that the constitution “grants farmers the right to sell products of the farm or garden that they are not otherwise legally prohibited from selling, without obtaining a license.”
The Legislature granted adults age 21 and over a legal right to grow marijuana but did not give all of them a legal right to sell it. That is, a homegrow farmer is “legally prohibited from selling” the resulting marijuana flower.
Similar conclusions were reached in the raw milk case in 2017, that is, a right to sell without a license does not apply to products otherwise illegal to sell and does not exempt farmers from any regulation. The constitution declares a right to sell or peddle but not necessarily a right to grow. Some legalization advocates consider this a distinction without a difference — you can’t sell what you can’t grow.
The state Department of Agriculture also reminds farmers that the constitution includes “products of the farm or garden” which suggests only minimal processing would be allowed before that product becomes something else. Butter from cream would likely be included but many of the marijuana products that might be made from a cannabis plant — other than dried flower — might not be.
The constitutional provision says “farm or garden occupied or cultivated by him,” so would not include acreages where the farmer doesn’t live. And the multiple requirements for testing, packaging, labeling and — eventually — potency, would have to be met by any seller to be considered a legal product of the farm or garden. A pot stand at a farmer’s market with products not tested under the new law would likely be illegal, even under a generous interpretation of Art. 13, section 7.
So what does this mean for homegrow cannabis? First, fewer than half of the recreational marijuana states allow people to grow their own plants for personal use, and Minnesota is one of them. The statute and case law provide no clear answers as to whether the state can allow personal growing but prevent growers from selling the resulting flower. Ultimately the courts would have to get a case and decide whether legalization changes the legal analysis from the Wright and Hartmann cases. One likely pathway is a defendant charged with selling without a license would use the peddler provision as a defense.
Legalization advocates think they have a strong case that a license to sell cannabis flower cannot be required. Drafters of the new law disagree.
But Wright isn’t confident that the Supreme Court would agree with his interpretation of the law.
“I won’t fight it again,” he wrote. “With Chief Justice Lorie Gildea retiring, there would only be one Republican appointed by Pawlenty, Associate Justice G Barry Anderson. Democrats on the Supreme Court would probably support their party and would construct an opinion that upholds the ruling party’s police power.”