Will licensed I-502 businesses compete with the robust medical marijuana market? Two new Court of Appeals decisions cast another shadow on this dimly lit issue.
In Cannabis Action Coalition v. City of Kent, decided by Division I of the Washington Court of Appeals on March 31, 2014, the court ruled that local jurisdictions may ban collective gardens — cannabis grows of up to 45 plants, serving up to 10 patients. These collectives, defined by the Washington State Medical Use of Cannabis Act (MUCA), have been the foundation for the spate of dispensaries we’ve seen in Washington. The court ruled that former governor Christine Gregoire’s 2011 veto of 36 of the 58 sections of Engrossed Second Substitute Senate Bill 5073 left all marijuana illegal, while retaining an “affirmative defense” for those who complied with the provisions of MUCA. This is because to be “legal” you had to be registered, but the governor’s veto eliminated the registration provision of the law. The court ruled that “collective gardens are not legal activity.”
Legitimate medical marijuana users, growers and distributors can still be searched, arrested and taken to jail, but they may have a defense when they come to court. Since it’s illegal under state law, local jurisdictions may completely prohibit this conduct.
On the same day, the same three judges of the Court of Appeals decided State v. Reis. The case reaffirmed the court’s opinion that medical marijuana users and providers are not engaged in legal conduct, but may be able to raise an affirmative defense if charged with a crime. “An affirmative defense admits the defendant committed a criminal act but pleads an excuse for doing so.”
All the dispensaries, farmers markets, delivery services and clone stores serving the medical marijuana community are now considered illegal by our Court of Appeals. Whether the state Supreme Court will disturb these rulings we must wait to see, but in the interim, collective gardens and their distribution points are today’s speakeasies. Given the frequent statements by the Liquor Control Board and the legislature that medical marijuana is out of control, it’s safe to assume that law enforcement is about to pay more attention to these businesses, if only in the name of facilitating the success of I-502 entrepreneurs.
I would not be surprised to see local authorities sending warning letters to dispensaries or collective gardens in their jurisdiction. The current laws are unclear and confusing. Creative defendants and their lawyers may find enough issues here to keep this issue — and I-502-related issues — in the courts for years. Meanwhile, if you want to invest in the cannabis industry, these cases don’t shed much light on the question you’re concerned with: the power of local jurisdictions to prohibit cannabis commerce legitimized by state law. Cannabis Action Coalition v. City of Kent addressed businesses that (according to the court of appeals for Division I) were neither legal nor licensed.
Thus they could be prohibited. If an I-502 business is legal and licensed, will the result be the same? Will local jurisdictions be able to opt out completely? That may well become the battle du jour as I-502 — a bill designed to pass, not to work — struggles toward implementation.
Jeffrey Steinborn has been practicing law since 1968, primarily in criminal defense, but also adding his experience to the legalized cannabis industry.