“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” – James Madison
It should be obvious to one on either side of the nullification issue that unless the federal government repeals a law a state is actively nullifying, there will be a conflict between state and federal laws on the books. When a federal act is unjust, then state law conflicting with it is a good thing. The major problem arises when two acts at the same level of government conflict, especially when that level of government tries to use both to harass a person. Such was the case for David Knowlton, cofounder of Compassionate Care Foundation Dispensary in Egg Harbor Township, New Jersey, who found himself unable to find representation against the National Labor Relations Board, which was hearing a case on behalf of workers at the dispensary who wanted to unionize. The reason for lawyers’ refusal to represent him? New Jersey attorneys could face loss of their license for advising or assisting clients engaging in “conduct a lawyer knows is criminal or fraudulent.”
“It’s a difficult position to be in,” said Knowlton, who is also CEO for a health policy think tank, the Health Care Quality Institute of New Jersey. “I am used to being in a world where everyone knows what the rules are — you have a right to counsel, a hearing and due process — and it is being cast aside because the state and the feds can’t agree.” Forget the state and the feds agreeing. What about the feds agreeing with themselves? This case looks like little more than a case of the gotcha game, with one part of the federal government coming after a medical marijuana provider for engaging in an activity they consider illegal, and the other coming after the same medical marijuana provider for resisting letting workers in that same illegal activity unionize. Thankfully, the case has since been dropped, as some of the workers who spearheaded the lawsuit have since quit. This would have been the first intervention by the labor board on behalf of cannabis workers, according to Mark E. Belland, attorney for Local 152 of United Food and Commercial Workers, a union whose Cannabis Workers Rising initiative has organized workers in five states and the District of Columbia. One must wonder if Mr. Belland had any of the same concerns as attorneys who declined to represent Mr. Knowlton. After all, what’s good for the goose ought to be good for the gander.
For the question of the legal ethics and licensing, which is handled at the state level, the answer should be simple. If something is legal at the state level, even if the federal government says otherwise, then an attorney should not have to fear reprisals for advising a client according to state law. Other states have begun to rewrite their rules for attorneys to be able to represent marijuana dispensaries as long as they are in “strict compliance with state law.” The New Jersey Bar Association needs to start looking at the same. In addition to these necessary changes, perhaps the New Jersey Legislature could give a little push by making it easier to sue attorneys who deny them representation when there is no conflict with state laws. Unless and until this happens, these issues should involve fighting fire with fire. If the unions feel like putting a business owner in a situation where he is forced to represent himself, they ought to be forced to play by the same rules and not have the privilege of an attorney either, and lawyers such as Belland should feel the same heat for representing workers involved in a so-called “illegal activity.”
While some of the ideas brought up have the potential to be divisive, there exists an opportunity for unity if different parties stop and take a look at who the real enemy is. Labor, businesses, attorneys, all at each other’s throats in a way that allows the national government to take on more power does not serve anyone well in the long run. They all have the right to present their different sides of their disagreements and to work among themselves for a satisfactory resolution without interference from a government who has no interest except more control over all involved.