Pubdate: Thu, 11 Sep 2014
Source: Walla Walla Union-Bulletin (WA)
Contact:  2014 Walla Walla Union-Bulletin
Website: http://www.union-bulletin.com/
Details: http://www.mapinc.org/media/2619
Author: Tracy Warner, Wenatchee World

LEGAL MARIJUANA, LET IT BE, LET IT BE

For the time being, your city can ban marijuana shops, just as it can 
ban other things that annoy its citizens and give its regulators 
palpitations. It can even ban things state law specifically 
accommodates and licenses, as long as it's not a head-to-head 
conflict or the Legislature didn't say shut up and take it. 
City-by-city NIMBYism gets a pass.

Whether a ban is good or bad, beneficial or harmful, are separate 
questions. For now, they are local questions, between local voters 
and their municipal representatives, unless the Legislature or courts 
decide otherwise.

This is the general effect of an off-the-cuff ruling last week by 
Pierce County Superior Court Judge Ronald Culpepper in a suit 
challenging a ban on marijuana shops in the city of Fife. Cities and 
counties, like Wenatchee or Chelan for instance, can do as they like, 
even if the majority of voters in their jurisdiction favored 
Initiative 502, which sets up a state-controlled system for 
production and sale of recreational marijuana.

For advocates of the initiative, and for those who hope to sell 
marijuana legally, this ruling will be frustrating. They argued 
Initiative 502 overrides local prohibition, and that top-down, 
do-it-whether-you-like-it-or-not approach is necessary to establish 
access widespread enough to kill the marijuana black market. That was 
the initiative's express goal.

The advocates should mellow out. This ruling is a good thing for 
Initiative 502 and its backers. They are absolutely right about the 
effects of continued prohibition. Cities can't ban marijuana sales 
now, just as they never have been able to do it in the past. By 
banning legal sales they simply choose to stick with the old criminal 
distribution system they never could stop. But forcing a wholesale 
cultural shift on reluctant local government is asking for a 
backlash, and that might lead straight to federal court, where 
Initiative 502 and legalized marijuana might lose the game.

Better to ease this law in through the middle ground. The city of 
Fife argued that if Initiative 502 forces it to accommodate marijuana 
retailers, the city would be forced to take up activities that 
violate the federal Controlled Substances Act, which outlaws 
marijuana. State Attorney General Bob Ferguson instead argues that 
Initiative 502 does not make Fife do what it does not want to do. The 
state Constitution gives cities the power to make and enforce laws. 
"Nothing in state statute expressly or impliedly pre-empts that 
authority," said Ferguson's memorandum on the issue. The initiative 
writers could have added a clause overriding local laws, but didn't. 
The initiative might not have passed if they had. The Legislature, if 
it chooses, could add an override clause and maybe kick some 
marijuana tax revenue the cities' way. That would make for an 
interesting debate.

The initiative does not pre-empt local law, just as the federal law 
does not override state law unless Congress says so, said Ferguson. 
The federal government didn't usurp the state's power to make drug 
laws. Granting a business license to a retailer selling a product 
legal under state law does not make the city a co-conspirator set to 
be hauled off to federal court. If the federal law was the overlord, 
the advocates argue, then all this medical marijuana would be out, 
and the several states that have decriminalized marijuana possession 
would be in deep trouble.

Judge Culpepper said since state law did not prevent Fife's pot ban, 
there was no point in ruling on the federal issue. That wise decision 
lessened the complications considerably. The plaintiffs, the 
advocates, those who wish Fife and Wenatchee and all others to 
conform, will appeal and the state Supreme Court is the likely spot 
for a showdown.

Meanwhile, the slow establishment of I-502's marijuana business will 
continue where jurisdictions are wise enough to allow it. Things change.
- ---
MAP posted-by: Jay Bergstrom