Fargo police will no longer arrest people for possessing synthetic marijuana after a judge dismissed two possession cases based on an "invalid rule" by the state board that banned the substance.
In an opinion filed Wednesday in Cass County District Court, Judge Wickham Corwin said the North Dakota Board of Pharmacy didn't properly notify the public after it adopted an emergency rule Feb. 25 effectively banning synthetic marijuana.
"We're going to follow his decision on it until told otherwise by the courts or until a law is enacted," said Sgt. Mat Sanders, head of the Fargo Police Department's narcotics unit.
Corwin cited a state law that says the responsible agency "shall take appropriate measures to make interim final rules known to every person who may be affected by them."
After adopting the interim rule, the pharmacy board sent a copy to the Legislative Council and asked that it be published in the administrative code.
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"It now appears that this was a request for something that is never done, as only final rules ever appear in the code," Corwin wrote.
Simply posting the rule on the websites of the board and council wasn't adequate notice, he wrote.
"In summary, the board did not substantially comply with the notice requirement applicable to the adoption of an emergency rule," Corwin opined. "As that makes the rule invalid, the charges must be dismissed."
The two defendants were arrested June 23 and 24 in Fargo. Each was charged with possession of a Schedule I controlled substance, which is how the board classified synthetic marijuana, commonly known as Spice or K2.
Synthetic marijuana is marketed as herbal incense and sprayed with a chemical that mimics the effects of THC, the active ingredient in marijuana. The board also banned another so-called "designer drug" known as stardust, bath salts mixed with a stimulant that mimics the high of methamphetamine.
Assistant Cass County State's Attorney Gary Euren, who was prosecuting one of the two cases dismissed, said staff were working Thursday to compile how many synthetic marijuana cases have been charged or resolved, and how many are pending.
The state's attorney's office may appeal Corwin's order dismissing the cases.
"We're looking at all options and all issues that this raised to decide what we're going to do about these cases and any other cases that are pending," Euren said.
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The North Dakota Attorney General's Office, which brought the issue to the board's attention, will confer with Cass County on the matter, spokeswoman Liz Brocker said.
Fargo police have pursued at least 16 cases of synthetic marijuana possession since May 1. They have said they'd like the Minnesota Legislature to ban synthetic marijuana to stop the flow from Moorhead into Fargo. But Sanders said it will now likely take action by the North Dakota Legislature to officially ban it west of the Red River, unless the board goes through the rulemaking process again with the proper notification.
Board of Pharmacy Executive Director Howard C. Anderson Jr. did not return a phone message seeking comment on Thursday. A staffer said the board was in a meeting that would last all day.
Last week, Duluth became the first city in Minnesota to outlaw synthetic marijuana.
Corwin stated in his opinion that the North Dakota ban took a "lawful and widespread conduct" and "literally overnight" turned it into a felony crime punishable by up to five years in prison.
"Because of these serious implications, it follows that a correspondingly serious attempt to provide fair warning of this change was appropriate," he wrote.
The Forum of Fargo-Moorhead and the Herald are Forum Communications Co. newspapers.
