'Right to farm pot' withers

Appeals court panel refuses to block trial on marijuana cultivation charge

Cole County Circuit Judge Dan Green can keep working toward holding a trial early next year for a Jefferson City woman charged with growing marijuana in her basement.

A special panel of the state appeals court in Kansas City on Monday rejected a motion asking the court to order Green to dismiss the indictment against Lisa A. Loesch.

Cole County grand jurors in 2012 said that Loesch "knowingly manufactured and produced more than five grams of marijuana, a controlled substance, by growing, planting, cultivating, and harvesting it."

Three weeks ago, Green rejected Public Defender Justin Carver's argument that Missouri's "right to farm" amendment - added to the state Constitution a year ago by a narrow margin - protected Loesch from being charged with the crime.

Carver filed his appeal to the Kansas City court Monday morning.

The appeals court's Writ Division denied it hours later, in a two sentence order with no additional comment or written opinion.

"The Relator's Petition for Writ of Prohibition and Suggestions in Support thereof ... are taken up and considered," Judge Anthony Rex Gabbert wrote for the Writ Division. "The Court, being fully informed, hereby denies (the) Petition."

As in his original, circuit court motion to drop the case, filed last April, Carver argued the amendment "prohibits the Legislature from passing laws that limit or restrict the rights of Missouri farmers and ranchers to engage in farming practices (and) prohibits the Legislature from declaring what can and cannot be grown in Missouri."

Carver also reminded the appeals court that "the text of Right to Farm does not define "agriculture,' "farming,' or "ranching,' (and) does not list what crops and/or animals are protected."

But Green wrote in his 13-page decision on Sept. 1 that "agricultural practices ... are still subject to reasonable regulations," and that Loesch's "argument that growing marijuana in a basement constitutes a "farming or ranching practice' goes way beyond the plain meaning of "farming or ranching practice.' ...

"Simply put, marijuana is not considered a part of Missouri's agriculture."

Carver told the appeals court that the "drafters of the Amendment left the language intentionally open and intentionally vague so that the scope of the protection would be more inclusive."

Green had ruled that Missouri voters didn't adopt the amendment until the Aug. 5, 2014, primary election, and it didn't go into effect until Sept. 4 last year, so it wasn't in effect when Loesch was charged in October 2012.

Carver's appeals court paperwork countered: "The Right to Farm (amendment) states that the right shall be forever guaranteed, meaning that it is an existing substantive right and is therefore retroactive to the offense date alleged in the Indictment."

And, Carver said, the indictment should be canceled and Green should end the scheduled trial before it begins, because: "Marijuana is a plant that grows in the ground. The acts alleged in the Indictment - "growing, planting, cultivating, and harvesting' marijuana - are farming and agricultural activities.

"Marijuana is agriculture that provides food, energy, health benefits, and security."

Green ruled three weeks ago: "The Department of Health and Senior Services has determined that a number of drugs produced from plants should be statutorily prohibited ... because of their high potential for abuse," including marijuana, heroin and cocaine.

Unless Carver wins an appeal with the state Supreme Court or with a federal court, Loesch's next court appearance is set for Jan. 13, and her trial is scheduled to begin Jan. 19, 2016, Carver said.