About a year ago we wrote about the somewhat surprising decision by the Washington Court of Appeals (Division I) declaring medical marijuana was still illegal in Washington state. Now the Washington Supreme Court has weighed in.
As a brief refresher, the plaintiffs in Cannabis Action Coalition v. Kent challenged a Kent zoning ordinance that essentially banned collective gardens and commercial MMJ establishments within city limits. The plaintiffs argued that Kent could not ban what state law allowed, but lost at the trial court and again at the Court of Appeals. The Court of Appeals took issue with the plaintiffs’ premise – that 2011 amendments to the Medical Use of Cannabis Act “legalized” medical marijuana use – holding that a municipality was well within its rights to “prohibit and punish the same acts which constitute an offense [i.e., use cannabis] under state laws.” Though provisions of the 2011 amendments would have exempted patients and caregivers from criminal prosecution if they were properly registered with the state (and met several other requirements), after passage by the Washington legislature, those provisions were vetoed by then-governor Gregoire. Governor Gregoire’s veto was prompted by a letter from Washington’s two federal prosecutors warning that state employees administering the registry system would not be immune from federal prosecution. Wanting to protect state employees, Gregoire rejected all parts of the legislation dealing with the registry. Thus, reasoned the Court of Appeals, since no patient or caregiver could register, he would fail to meet the qualifications for exemption from prosecution, and no MMJ use would be “legal” under the statute as it was signed into law.
The Court of Appeals ruling in Kent threw medical marijuana in Washington into a chaotic state. Hundreds of dispensaries and collective gardens, whose legality had been somewhat dubious even prior to Kent, were now clearly in violation of state law. State and local officials suddenly had to figure out what to do with MMJ outlets while trying not to leave patients high and dry, while also simultaneously navigating the new recreational marijuana waters under I-502. We documented many of those trials and tribulations here:
- Medical Marijuana: No Love Lost Between Washington’s Competing MMJ Bills
- Medical Marijuana in Washington State: Will Seattle Lead Us?
- Medical Marijuana v. Recreational Marijuana: An Update from the Front
Needless to say, many were eager to see what the Washington Supreme Court would do with the Kent case. The plaintiffs asked the court to reverse the Court of Appeals’ decision, contending that the legislature did intend to legalize medical marijuana, and that MUCA should preempt Kent’s attempt to zone out MMJ operators. Last week the court issued its ruling, which in some ways was unsatisfying. The Supreme Court affirmed the court below, applying a straightforward analysis of preemption law, holding that Kent’s ordinance was consistent with MUCA and could therefore remain in place. Save for a footnote though, the Supreme Court did not even discuss the illegality argument, on which the Court of Appeals’ rationale was seemingly based. The Court decided only that it did not need to determine “whether medical marijuana use is ‘illegal subject to an affirmative defense’ or is generally ‘legal’ under state law.” The practical result of the Court’s restraint is that the parts of the lower court’s opinion discussing the legality of medical cannabis remain in force.
You might say the Supreme Court punted on the question, but we cannabis lawyers should not be too surprised. Appellate courts frequently decide cases on the narrowest grounds possible, and this makes good policy sense, keeping the case law from becoming muddled with a court’s unnecessary musings on side issues. Judges just don’t like to make more decisions than they have to. Besides, the Supreme Court is well aware of what has been going on in the legislature and knew that the Kent decision would eventually be superseded by newer laws and regulations. Indeed, it mentioned the passage of revised SB 5052 (read Washington State Overhauls its Medical Marijuana System) and noted that its opinion only construed the law as it existed prior to SB 5052. Now that Washington has a comprehensive plan for integrating its existing medical and recreational marijuana laws, the Kent decision becomes a lot less important. Still, it serves as a reminder why carefully-crafted and worded statutes and regulations are so important in the first place, particularly in a new and still-controversial industry like that of legalized marijuana.
Here’s hoping that the dawn of Washington’s newly revamped cannabis regime is a lot less hazy.