A
little-noticed state appeals court ruling
issued a month ago rejected the main legal theory under which
Washington’s medical marijuana dispensaries operate. But
that decision may not make much difference in practice, given the
various other factors that will determine whether these businesses
can continue to supply patients with marijuana—in particular, the
views of local officials and state legislators.
To understand the decision’s significance requires a
little background on medical marijuana in
Washington. In 1998 Washington voters
approved Initiative 692, which created an
affirmative defense against possession and cultivation charges for
patients who use marijuana to treat “terminal or debilitating
conditions” based on a medical recommendation. The law gave the
same defense to “any designated primary caregiver who assists a
qualifying patient in the medical use of marijuana.” But it offered
no clear option for patients who were not up to
growing their own medicine and could not find someone willing to do
it for them.
Until 2011 dispensaries in Washington operated based on a
model in which a given seller became the temporary “designated
provider” (as the role was renamed in 2007) for each patient who
bought cannabis from him. That year the legislature finally
approved a bill aimed at regulating the medical marijuana business.
But Gov. Christine Gregoire vetoed
most of the bill, citing advice from Jenny Durkan and Michael
Ormsby, Washington’s U.S. attorneys. In a letter to
Gregoire, Durkan and Ormsby warned that licensing and regulating
dispensaries would result in massive violations of the Controlled
Substances Act (CSA), that they could respond with “civil and
criminal legal remedies,” and that “state employees
who conducted activities mandated by the Washington legislative
proposals would not be immune from liability under the
CSA.”
Gregoire, who had solicited the U.S. attorneys’ guidance and may
have been looking for an excuse to veto the bill, interpreted that
last sentence as a threat to prosecute state employees involved in
licensing and regulating medical marijuana suppliers. She therefore
vetoed all the provisions of the bill that would have put them in
that position. At the same time, the governor signed into law two
provisions that inadvertently created the current dispensary
system.
One provision closed the “designated provider” loophole, saying
providers had to wait 15 days before switching from one patient to
another. The other provision let patients grow cannabis in
“collective
gardens” rather than buy it from the state-licensed outlets
that were supposed to be the main source of medical marijuana. That
provision, which allowed up to 10 patients and 45 plants per
garden, became the new legal rationale for dispensaries. Today
medical marijuana suppliers in Washington typically operate as
collective gardens (or associations of collective gardens) with
rotating memberships: When a patient enters a dispensary, he
becomes a member for the length of the transaction.
State Sen. Jeanne Kohl-Welles (D-Seattle), the chief sponsor of
the 2011 bill, says that system is “very different” from what she
had in mind. “There’s nothing in statute expressly allowing
dispensaries or prohibiting them,” she says. “There’s been a lot of
innovative interpretation.” Martin Martinez, who in 1999 founded
Life Vine, Washington’s first medical marijuana collective, thinks
“all of these dispensaries basically are abusing the law.” But John
Schochet, deputy chief of staff in the Seattle City Attorney’s
Office, says state appeals courts have approved the idea of
collective gardens with rotating memberships. “I couldn’t give you
a clear answer as to whether it’s illegal under criminal law,” he
says, but “no one’s been convicted for selling marijuana illegally
using a collective garden in King County,” where Seattle is
located.
At the end of March, however, the Washington State Court of
Appeals for Division I upheld a ban
on collective gardens in Kent, a city about 20 miles south of
Seattle. The court ruled that the legality of collective gardens
depends on a patient registry created by a provision of the 2011
law that Gregoire nixed. “As the plain language of the statute and
the governor’s veto message indicate,” the court said,
“collective gardens are not legal.”
The decision nevertheless seems to leave patients who grow
marijuana collectively with an affirmative
defense. “This case probably doesn’t mean anything,”
says Douglas Hiatt, a Seattle attorney who helped
write the appeal brief. “Basically they were trying to
punt. They were saying, ‘The city can do this, but you’re still
going to have an affirmative defense.’ And it’s unclear how the
city is going to move forward.” When it comes to enforcing a ban
with criminal penalties, Hiatt says, “You can’t have
different standards for a collective garden defense in Kent than
you do in Spokane. It would be a huge equal protection
violation.”
Steve Sarich, president of the Cannabis Action Coalition, says
he and the other plaintiffs in the case have not decided yet
whether to appeal to the Washington Supreme Court. He agrees that
the ruling does not affect the affirmative defense available to
patients with medical recommendations. “There was nothing in the
law that prohibited a collective garden prior to [the 2011
legislation],” he says. “What this did was [establish] additional
protections for people growing collectively.”
In any case, the viability of dispensaries has always hinged
more on the attitudes of local officials (as well as federal
prosecutors) than on the letter of the law. When it comes to the
“collective garden” rationale for dispensaries, Hiatt says, King
County Prosecuting Attorney Daniel Satterberg “essentially
bought off on it. He hasn’t brought any
cases. What Satterberg knows is that they can’t
beat us in a jury trial in Seattle on medical marijuana. It’s just
not going to happen. So he’s not interested in charging this
stuff.” As John Davis, who operates two dispensaries in Seattle,
puts it, “It’s not the law that’s solid out here.
It’s the policy.”
For years Seattle’s policy has been to tolerate
dispensaries. But that changed after voters approved I-502, the
2012 initiative that legalized recreational use and charged the
Washington State Liquor Control Board with licensing and regulating
marijuana growers and retailers. Last year the Seattle City Council
approved an ordinance that limits dispensaries to 45 plants and
72 ounces per location unless they obtain state licenses by January
1, 2015. Washington does not currently license medical marijuana
outlets, and the state legislature
ended its 2014 session without agreeing on a bill to
incorporate them into the new system. So unless the city council
extends its deadline, dispensaries will be operating in violation
of local zoning law.
Even if medical marijuana suppliers get a reprieve, state
legislators may end up banning them in 2015, as several of the
bills considered this year would have done. Opponents of the
dispensaries cite the threat of a
federal crackdown, noting that Durkan has
called the current system “not tenable.” Legislators also have
an interest in maximizing marijuana tax revenue by eliminating
businesses that otherwise would compete with state-licensed pot
shops. “They’re going to get rid of
it all,” Hiatt predicts. “It’s gone.
[story via
Canna Law Blog; ruling text via
Mark Kleiman]
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