Pubdate: Wed, 04 Jun 2014
Source: Seattle Times (WA)
Copyright: 2014 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Bob Young
Page: B1

WENATCHEE SUIT COULD MAKE OR BREAK POT LAW IN STATE

Spurned Retailer's Case Being Closely Watched

Asks Whether Federal Law Can Trump State's I-502

A lawsuit against the city of Wenatchee could have sweeping 
implications for legal pot's future in Washington and other states.

The lawsuit was filed Tuesday afternoon in Chelan County Superior 
Court by Shaun Preder, who is seeking a state license for a retail 
marijuana store in Wenatchee. But Preder's SMP Retail can't open a 
store, Wenatchee officials say, because city officials adopted a 
policy that says to get a city business license, entrepreneurs must 
comply with federal law.

Marijuana remains illegal under federal law, even though Washington 
state voters legalized possession, production and regulation of the 
drug via Initiative 502 in 2012.

The case could open the door to a court ruling on whether the federal 
government can trump or pre-empt Washington's pot law. Such a ruling 
could invalidate Washington's regulations and emerging pot industry, 
or uphold it. Either outcome could influence legalization campaigns 
planned in states such as California.

For that to happen, Wenatchee would have to respond to Preder's 
lawsuit by invoking its business-license policy and the federal 
prohibition of marijuana.

If the city did raise the federal issue - instead of choosing not to 
fight, or just relying on state law in its arguments - then the ACLU 
(American Civil Liberties Union) of Washington would intervene on the 
side of I-502, said Alison Holcomb, chief author of the initiative 
and criminal-justice director for the state ACLU. Wenatchee has 20 
days to respond to the lawsuit, said Hilary Bricken, Preder's 
attorney. Preder, 34, is president of an office-furniture company in 
Woodinville. He said he isn't seeking notoriety. "I'm just trying to 
move forward with my business. I think they should obey state law," he said.

Lawyers and judges would be eager to take on the case because of the 
high stakes involved. "It will be the kind of case I think the U.S. 
Supreme Court lives for," said King County Prosecuting Attorney Dan 
Satterberg in the documentary "Evergreen: the Road to Legalization," 
which begins a theatrical run in New York City this month.

The initiative was written with this scenario in mind, and Holcomb 
said the ACLU, assisted by local law firms Gordon Thomas Honeywell 
and Garvey Schubert Barer, is prepared to make its case.

Bricken said Wenatchee made itself a "perfect target for this kind of 
lawsuit." She said she is not worried about setting back legal 
marijuana with the lawsuit.

"The question on the table is whether cities can rely simply on 
federal prohibition to deny these businesses in their jurisdictions. 
We were careful to not call into question the validity of I-502 
itself," Bricken said.

Mayor Frank Kuntz said it's too early to know what Wenatchee's 
response would be until the City Council discusses the case with its 
lawyer at its next scheduled meeting June 12. City Attorney Steve 
Smith said Tuesday of the lawsuit, "I haven't seen it yet. I'm not 
aware we've been sued."

The mayor had recommended that Wenatchee simply drop the federal 
requirement from its business license process, to avoid such a fight. 
But the City Council voted 4-3 earlier this year to maintain the 
federal compliance provision.

If a legal battle looks like it will cost the city a lot, Kuntz said, 
he'd advise the council not to litigate. But that decision is up to 
the council, he said. "They control the checkbook," he said. "I 
manage it for them."

Bricken said earlier this month that the ACLU was 
"plaintiff-shopping," looking for a case featuring a pot entrepreneur 
whose license was jeopardized by federal prohibition. "I'm confident 
the authors of 502 were smart enough to know we would get in this 
battle," she said.

Holcomb laid out the arguments against federal preemption of I-502 in 
a presentation last year at the Seattle University School of Law. She 
starts from the legal viewpoint that the federal government can't 
force a state to criminalize a particular activity. So Congress can 
prohibit marijuana growing, sales and possession but can't make state 
officials enforce federal law against pot.

That would seemingly leave the federal Department of Justice the 
choice of enforcing federal law against Washington adults possessing 
marijuana, or against the state's scheme of licensing and regulating 
production and sale of the drug.

The former would be impractical because the DOJ doesn't have enough 
agents for the task. Clamping down on the state's system would be 
more plausible. But it carries its own risks.

U.S. Deputy Attorney General James Cole laid those risks out last 
year in a key exchange with U.S. Sen. Patrick Leahy, D-Vt.

"It would be a very challenging lawsuit to bring to pre-empt the 
state's decriminalization law," Cole said. DOJ might have an easier 
time pre-empting the state's regulatory scheme, he said, "but then 
what you'd have is legalized marijuana and no enforcement mechanism 
with the state to try and regulate it."

Leahy's response? "Kind of an incentive for a black market," said the 
chairman of the U.S. Senate Judiciary Committee, "isn't it?"

Very much so, Cole replied, with "money going into organized criminal 
enterprises instead of going into state tax coffers and having the 
state regulate from a seed-to-sale basis what happens to it."

A legal battle, in Holcomb's analysis, would revolve around what 
Congress intended with the Controlled Substances Act (CSA), which 
makes marijuana federally illegal.

If the purpose of the CSA is to reduce harm to society, then she 
argues that I-502 does more good than harm because it strictly 
regulates marijuana production and sales rather than leaving that to 
the illicit market.

State regulations don't stifle federal enforcement, she said. The DOJ 
can always hire more agents to enforce federal law.

"The crux of the argument is whether I-502 is hindering or helping 
congressional goals," she said. "That's the critical question."
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MAP posted-by: Jay Bergstrom