Pubdate: Mon, 09 Feb 2015
Source: Seattle Times (WA)
Copyright: 2015 The Seattle Times Company
Author: Bob Ferguson
Note: Bob Ferguson is Washington state's attorney general.


MARIJUANA legalization under Initiative 502 is a bold experiment. As 
attorney general, I am defending that state law rigorously. But one 
question threatens to unravel marijuana legalization in Washington 
state and, potentially, across the country: Can cities and counties 
ban the sale of marijuana within their local jurisdiction?

When asked to answer that important question, I reviewed the law 
carefully and concluded that, yes, they may. Local governments have 
broad authority to pass their own laws unless a state law explicitly 
says they can't. Simply put, the language of I-502 does not prohibit 
local bans. The drafters could have included such a provision, but 
they did not. Many marijuana advocates were disappointed in this 
conclusion, but my job is to go where the law takes me, whatever the outcome.

Some I-502 supporters claim that my legal conclusion undermines 
marijuana legalization. In fact, while my opinion is grounded solely 
on an objective reading of the law, it also protects I-502.

Here's how: Although I-502 legalized marijuana under state law, it 
did not change federal law. The United States still bans marijuana, 
and federal officials could prosecute Washington residents even if 
they are following I-502. Some cities and counties, in defending 
their bans on marijuana sales, have already argued in court that 
federal law completely invalidates (or "pre-empts") I-502.

I disagree with that view. But this issue of federal pre-emption 
could lead to a ruling by the U.S. Supreme Court that states may not 
legalize marijuana at all.

All five Washington courts to consider a local government's ban have 
agreed with my opinion that I-502 does not force local governments to 
allow marijuana businesses, and therefore no court has needed to 
address this issue of federal pre-emption. Because courts have been 
able to resolve these cases under state law, there has been no 
federal precedent established. Consequently, an adverse decision on 
federal grounds - potentially devastating to the democratic 
experiment contemplated by I-502 - has thus been avoided.

Meanwhile, our state Legislature is now being asked to prohibit local 
bans of marijuana businesses. Every other state legalizing marijuana 
- - Colorado, Oregon and Alaska - allows local bans. If our legislature 
outlaws them, Washington would be an outlier - the only state with 
legalized marijuana not to allow local governments to prohibit 
marijuana businesses.

If that happens, some local officials would still ban the sale of 
marijuana in their cities and counties. They would argue that federal 
law trumps Washington's marijuana law, and the federal courts would 
be forced to consider and resolve the federal pre-emption issue.

Marijuana advocates should think hard about whether they really want 
to risk the U.S. Supreme Court deciding now, at the very beginning of 
this grass-roots experiment, on a sweeping nationwide basis whether 
marijuana may remain legal in Washington, or any state.

And, I-502 supporters should realize what the initiative drafters in 
Colorado, Oregon and Alaska grasped: While a patchwork system might 
not be perfect, allowing local bans of marijuana businesses actually 
protects the initiative against legal challenges.
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MAP posted-by: Jay Bergstrom