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Abuse of power?

News | November 1st, 2018

graphic by Raul Gomez

BISMARCK – After medical marijuana’s Measure 5 was passed by more than 64 percent of North Dakotans in 2016, but before the legislature gutted the measure and enacted laws, André Thom, J.D. worked at a Minnesotan marijuana manufacturing company.

When invited to speak before the legislature Thom asked for a no vote on Senate Bill 2344, because he saw the state stripping the original intent of Measure 5 away. And then he lost his $60,000 a year job because the North Dakota Attorney General’s office sent a ‘cryptic email’ to his bosses, he said. 

“I testified as a private citizen,” Thom said, adding he went to Bismarck on one of his days off work. “I felt that the North Dakota Attorney General’s ‘cryptic email’ was a direct threat to my employment and livelihood. The North Dakota Attorney General writing to my employer in Minnesota was an intentional act to pressure my employer’s decision to force me out of my job because I exercised my First Amendment Right, as a private citizen acting on my own behalf when I urged a No vote on SB 2344 from the House Human Services Committee on March 21, 2017.”

André Thom

The severance agreement did not specify the reason, but his bosses – two of whom later left the company due to financial reasons – told him that the Attorney General’s email was the reason he was fired, Thom said.

Thom said his former title at Leafline Labs LLC was as the director of compliance and regulatory affairs. In addition to his job, he also lost his girlfriend of two years, had to move back to California and work at an $11 an hour job, and he couldn’t pay back his student loans during that time. He received a doctorate of law degree from the University of North Dakota School of Law in December 2015.

Thom suffers from severe acid reflux, which at one time constricted his esophagus by 40 percent. A California doctor approved his condition for the medical use of cannabis. 

“I believe a patient’s medicine shouldn’t be limited by arbitrary time limits or state borders,” Thom said. “As an adult over 21, I felt I should be able to, without fear of citation or arrest, purchase a legal source of medication in North Dakota… The legislature is not my doctor. Why do they think they know what’s better for my health than any doctor, regardless of which state that doctor is licensed?”

On March 25, 2017, Andrew Bachman, former co-founder of Leafline Labs, asked Thom through a message if he had been in North Dakota speaking against the Senate Bill, saying the “AG’s office there is suggesting we had ‘an employee’ who was,” according to a screen capture of a message HPR received through Thom.

Thom replied by saying he was there not as a representative of Leafline Labs. He spoke before the legislature as a private citizen.

According to a screen capture of a message from Thom, Bachman replied by saying: “Thx, brother. No need to explain at present. Just am trying to piece together some cryptic communications from the AG’s office, so we can best decide…”

Screensot of messages between Andrew Bachman and Andre Thom

Later, Thom said he was fired. 

"And no, the initial severance agreement did not specify," Thom said. "He told me this in my office in the presence of Bill Parker, now CEO."

When Thom contacted the Attorney General’s office questioning why they had him fired, he received a response from Liz Brocker, the public information officer.

“I am responding on behalf of the Attorney General to your email. Unfortunately, the Attorney General and his staff are prohibited by law from providing legal advice or assistance to members of the public,” Brocker wrote in an email. “Further, this office does not have jurisdiction or authority over the issues about which you write. Accordingly, we cannot take any further action in response to your email.”

Until now, obtaining medical cannabis in Minnesota or North Dakota is technically impossible for Thom, he said. While in the area he was forced to rely on a drug called Omeprazole, used to reduce stomach acid, but also blocks absorption of key nutrients.

“Where cannabis helped without serious negative side effects, Omeprazole was visibly hurting my body.”

Thom is thinking about pursuing a lawsuit against Wayne Stenehjem, the current Attorney General for North Dakota.

“I felt a sense of betrayal from my boss when he told me I was being asked to leave because of the pressure from the AG’s office in North Dakota,” Thom said. “I also felt my First Amendment Right was infringed upon by an outside, state government that was immune to my voting influence as a resident of another state. I felt I wanted to sue North Dakota Attorney General Wayne Stenehjem’s office for violating my rights and causing me financial hardship as a result of their ‘cryptic email’ to my employer in Minnesota.”

Second screenshot of messages between Andrew Bachman and Andre ThomCalls made to the current CEO of Leafline Labs, Bill Parker, and to former co-founder Andrew Bachman, were not returned. A Freedom of Information Act request was made for information to the North Dakota Attorney General’s office.

According to emails to Bachman, a relationship was in place between the North Dakota Attorney General’s office and Bachman weeks before Thom’s testimony.

Assistant Attorney General Tara Bradner expressed interest in Leafline Labs LLC and how to “immediately, efficiently, and properly” put legislation in place regarding the ballot initiative. Bachman even offered a tour of his facilities on March 2, 2017 to the Stenehjem, Bradner, and Governor Doug Burgum.

Bachman accepted an invitation to meet with the North Dakota Attorney General’s office in early March, to discuss how to: “Move medical cannabis access forward for all patients who may benefit, in Minnesota, North Dakota, and beyond.”

At that time, however, Minnesota attorney Stephen R. Pflaum of Stinson Leonard Street LLP was unable to determine the status of the Compassionate Care Act, and proposed a reciprocity agreement written by the Minnesota Legislative Revisor, allowing patients to buy medical cannabis from Minnesota’s registered manufacturers. Pflaum further enclosed suggestions of a draft bill to amend North Dakota’s Compassionate Care Act to “provide reciprocal language to the Minnesota bill.”

Bachman, who was with Leafline Labs LLC during a March 5, 2017 email to the North Dakota Attorney General's office, reported the company's lobbying team was working to garner support from both sides of the political aisle. 

"Not overly stated in the aforementioned and attached documents is the support that we are lending through our lobbying team and beyond, headed by Brennan (Buck) McAlpin and Lawrence (Larry) Redmond, to back the evolving omnibus housekeeping bill promoted by our MDH Deputy Commissioner and regulator, Dan Pollock, and presently authorized by Rep. Rod Hamilton (R) with co-sponsorship by colleagues in his caucus and already garnering extensive support from both sides of the aisle," Bachman wrote in an email. 

Brocker denied Thom’s accusation, directing questions to his previous employer. The Attorney General’s office also provided no information from the time period in question other than to say that “no such records exist” or “the requested records are not records of this agency.”

Stenehjem vs. Thompson
The differences between two attorneys – one fighting to retain his Attorney General’s seat and the other striving to take it – couldn’t be starker.

Stenehjem, a Republican, is the longest-serving Attorney General in North Dakota’s history. Tall, peppery-brown haired, he’s a difficult official to reach.

His rival, David Thompson, is gaining political ground online and through a grassroots campaign. Balding and stocky, a juggernaut for personal injury cases dealing much of the time with asbestos and mesothelioma issues, Thompson is a registered Democrat, with support on both sides of the political aisle.

Thompson has criticized his opponent heavily during the past months, linking Stenehjem to former Governor Jack Dalrymple and a 2011 bribery case that was stymied by judges and later crippled by the state legislature.

Thompson has also backed Bismarck attorney Tom Dickson in a writ of mandamus against Stenehjem alleging him enjoining the state to a Texas federal lawsuit to declare the Affordable Care Act unconstitutional is illegal. Thompson has also thrown other allegations based on the appearance of corruption, such as Stenehjem’s involvement with and financial backing from the Republican Attorneys General Association, or RAGA.

So far, Stenehjem has yet to throw a punch back. His office is referring all questions related to the federal lawsuit to Texas, and the North Dakota Republican Party is not returning requests for information.

Thompson landed another body shot early Tuesday morning saying that Stenehjem is the mastermind behind denying the will of the people in regards to Measure 5, the medical marijuana measure passed overwhelmingly in 2016 General Election. Thompson alleges that Stenehjem, who was adamantly opposed to the measure, helped orchestrate the measure’s legislative overhaul that restricted the law into a shadow of what was originally proposed. After nearly two years, the medical marijuana program is still not fully operational in North Dakota.

According to the latest North Dakota Department of Health status updates, the agency has been actively working on instituting the program for 18 months and expects to have shelves stocked by the beginning of 2019, according to Jason Wahl, director of the Department of Health Division of Medical Marijuana. Currently, the state has two growers, or manufacturing facilities, and eight dispensaries all located within a 50-mile radius of major cities. So far, more than 200 people have applied for a medical marijuana identification card.

“North Dakota Attorney General Wayne Stenehjem, who had strongly opposed 2016 Measure 5 after having unsuccessfully campaigned for that initiated measure to fail, advocated successfully for the immediate repeal of Measure 5 and the Attorney General then advised the legislature as it enacted 2017 Senate Bill 2344 into a far more restrictive medical marijuana law,” Thompson said.

“To be clear, I strongly support making medical marijuana widely available, just as 64 percent of North Dakota’s voters mandated two years ago, while Attorney General Wayne Stenehjem has always opposed and worked to delay and restrict the availability of medical marijuana. As for Measure 3, North Dakota voters are intelligent, and on Measure 3, they are certainly aware of what they are voting for, and quite unlike Stenehjem, I will respect the will of the voters of this state.”

The new law adds 95 separate sections of law that must be complied with in connection to medical marijuana, according to the North Dakota Century Code.

“Even though North Dakotans approved the use of medical marijuana in this state by a margin of 63.79 percent to 36.21 percent in the 2016 General Election, medical marijuana is still not available today, and with a burdensome mountain of laws in the form of statutes and administrative regulations to be addressed by those seeking treatment with medical marijuana, it is evident that comparatively few North Dakotans will even be able to obtain state certification to be able to legally possess and use medical marijuana,” Thompson said.

This year, with Measure 3 related to legalizing recreational marijuana, Stenehjem is leading opposition once again.

“Much of the rhetoric of the Measure 3 opposition group trots out the time-worn assertion that ‘marijuana is a gateway drug,’ and that marijuana use leads to ‘harder drugs,’” Thompson said. “In fact, the weight of the findings found in peer-reviewed scientific literature is that overwhelmingly, marijuana is not a ‘gateway drug,’ and that actual ‘gateway drug’ is not marijuana, but rather one of the most damaging and socially accepted drugs in the world – alcohol.”

With Bismarck Police cracking down on the use of CBD oil, a hemp based pain reliever among other uses, the state has also significantly increased arrests for marijuana violations. According to the North Dakota Attorney General’s 2016 Comprehensive Status and Trends Report, marijuana arrests have jumped from 2,090 in 2010 to 3,519 in 2015.

Heroin, cocaine, and methamphetamine drug violations have also increased. In 2010, the state reported four heroin cases while in 2015 reported 177 cases. Cocaine violations totaled 35 in 2010, and 100 in 2015, while the state had 246 methamphetamine violations in 2010 with 1,633 in 2015.

If the trend continues in 2016 through 2018 -- the reports are not available yet -- then the statistics can only mean one thing: “There obviously is a misplaced and out-of-proportion preoccupation by Stenehjem with marijuana on the part of Stenehjem and North Dakota law enforcement agencies with marijuana interdiction – diverting law enforcement resources from methamphetamine and heroin drug enforcement,” Thompson said.

“Attorney General Wayne Stenehjem’s obsession with the prosecution of North Dakotans for marijuana-based offenses obviously taking valuable law enforcement resources away from the far more important focus on the current escalating tragedy of this state’s opioid/heroin epidemic, and the continuing methamphetamine menace. This is just bad law enforcement and wrong priorities on the part of Wayne Stenehjem.”

Thompson was admitted to the North Dakota Bar in 1984, graduating two years earlier from the University of North Dakota of Law in Grand Forks, where he later set up practice, David C. Thompson Law Office.

As of May 2018, 29 states and Washington, D.C. have legalized medical marijuana. A total of nine states and the nation’s capital city have legalized recreational marijuana. States that have legalized cannabis have experienced skyrocketing sales revenues with California leading the nation at $2.75 billion. Alaska, with a population less than one million, had a reported $40 million in cannabis sales.

[Editor's note: Additions have been made to this story.]

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