Six Questions on Law

Wooderson has a strong case for arguing that the Ordinance passed by the County is unconstitutional. Article I Section 9 of the Constitution says "No Bill of Attainder ... shall be passed," and Article I Section 10 says "No State shall ... pass any Bill of Attainder." The fact that this Ordinance has been specifically designed to affect Wooderson and only Wooderson qualifies it as a Bill of Attainder, the term given to legislation that is designed to specifically affect a single individual. The Supreme Court ruling in Fletcher v. Peck (1810) holds "A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained." If Wooderson can prove the religious motive of the Comissioner who designed the Ordinance, it violates the Establishment Clause; it is probably also discriminatory under the Fifth and Fourteenth Amendments, giving Wooderson a due process claim. Wooderson's defense against the criminal charge and his claim against the Ordinance are the same: as a Bill of Attainder, the Ordinance is a type of legislation expressly forbidden on the state and federal levels by the Constitution. The equitable remedy to be sought by Wooderson is an injunction, since that is what would be used to compel elected officials to comply with the Constitution. Wooderson's legal case is very strong if he demonstrates the Ordinance is a Bill of Attainder: the Commissioners would have been far more shrewd if, say, they determined Wooderson's dispensary was the only one that was within half a mile of a school building, or some artificial designation like that. Instead, the fact that the Ordinance seems specifically drafted to punish Wooderson alone makes it manifestly unconstitutional.

2. It makes a big difference if the dispensary itself is owned by Washoe County, since Wooderson's case might now involve the lease itself and the terms of the lease. Most jurisdictions -- including Nevada -- require the lessor to protect the lessee from foreseeable criminal activity. (See the Nevada Supreme Court's 1996 decision in Scialabba v. Brandise Construction.) All criminal activity in this case should have been foreseeable by the lessor, since the lessor is Washoe County and that is who criminalized that activity in the first place. Thus Washoe County is in breach of contract with Wooderson, or it is liable for the damages he suffered due to the foreseeable activity, or possibly both.

3. The homeowners claim the dispensary is a nuisance insofar as it interferes with their rights to quiet enjoyment of their own property. Since everything about the dispensary has been overseen by Washoe County -- in terms of zoning and licensing -- the nuisance claim would probably have to include Washoe County, or else Wooderson's defense against the nuisance claim would be to note that licensing and zoning for the dispensary would have taken this into account. The homeowners couldn't raise a nuisance claim for noise pollution if Washoe County had zoned, approved, and built an airport on the site of the dispensary, because the idea that airports are noisy is something that is taken into account with zoning regulations and approvals. Wooderson has some difficulty due to the present asymmetry between state and federal laws regarding cannabis: prohibition on the federal level, combined with general public prejudice, might render courts sympathetic to their claims of lessened property value. In Nevada, this same fact would be comparable to Wooderson operating a licensed brothel -- however presumably brothels are not zoned for residential neighborhoods and it's unclear why this dispensary is. Wooderson would have a strong claim if he had long predated the residents claiming the nuisance suit. It's unlikely that the growth or expansion of Wooderson's business would make a difference, unless it is somehow in violation of his zoning ordinances: things like the size of his parking lot would be established in that way from the beginning, and he could not expand at will. The homeowners are less likely to prevail in a nuisance suit if they wait a long time under similar conditions before deciding to find it a nuisance or complain, on the same principle that they are less likely to prevail if Wooderson's business and its operations were well-established at the time they moved into its vicinity.

4. Wooderson's Fourth Amendment rights were clearly violated, and the DEA has no excuse to commit breaking-and-entering based on gossip from a DEA agent's brother-in-law. As the exclusionary rule would prevent the prosecution from using any and all evidence obtained by the DEA, the charges would have to be dismissed. Wooderson's defense will be successful, as this is clearly the textbook definition of what is meant by "unreasonable searches and seizures." Wooderson is lucky that the DEA grossly violated his rights, however, because the licensed lawfulness of his business under state law is no defense against the Feds enforcing the current Schedule I classification for marijuana. Although the DEA has declared someone like Wooderson to be low priority, that does not mean no priority or off limits or immune.

5. To build a school where the dispensary is, the County would have to invoke eminent domain, and the Fifth Amendment guarantees Wooderson that "nor shall private property be taken for public use, without just compensation." Therefore Wooderson would be guaranteed financial compensation equivalent to fair market value of the property. It probably should make a difference if the County was going to remove Wooderson and sell the property to a private developer of luxury condos, but after Kelo v. New London the County has disturbingly broad authority to do this in the name of economic development. For the County to sell the property to a church to build a religious school or madrassa, however, is a clear violation of the First Amendment's establishment clause.