Washington State Court of Appeals bans medical marijuana stores

Never a dull moment.

I completely failed to see this one coming.

A brief history lesson:

Washington State has had a medical marijuana law since 1998. In 2011, the legislature passed a bill allowing the creation of “collective gardens” (aka stores) to grow cannabis for patients registered with the state, and regulating those outlets in various ways: all members of the collectives would have had to register with the state. The governor used her line-item veto to take out major provisions of that bill, including the part that would have created the patient registry.

Until now, the prevailing view has been that the permission to open stores was valid law even though the regulations designed to control them had been zapped, leaving Washington with a booming, and virtually unregulated and untaxed, medical cannabis industry; as everyone says, Seattle has more “medical outlets” than it does Starbucks locations. Some players in that industry were among the strongest opponents of the I-502 initiative that legalized non-medical sales.

Once I-502 had passed, its proponents and administrators started to worry about how a regulated and taxed commercial market could compete with a wide-open, but untaxed and unregulated, quasi-medical system. There were efforts in the legislature this year to rein in the “gardens,” but the industry (speaking, of course, in the name of “the patients”) and a partisan split in the legislature made it impossible to pass anything. Battle was expected to be joined again in January, with the threat of federal intervention lurking in the background.

In the meantime, the town of Kent had passed a local ordinance banning medical outlets. Various industry players sued, citing what was left of the 2011 law. But now the Washington State Court of Appeals (the second-tier court) has ruled that the governor’s partial veto makes all the collective gardens illegal, because a legal collective garden must serve registered patients and there is no patient registry. Therefore, Kent is at liberty to ban what was – according to the court – an illegal activity in the first place. All that’s left of the medical marijuana law is permission for individuals with medical recommendations to grow their own: if charged with a violation of state law for production or possession (but not, apparently, sale), a medical recommendation creates an affirmative defense.

Presumably most of the localities that have collective gardens, including Seattle, will continue to let them operate, especially since the commercial outlets won’t even start to open until sometime around the end of June or early July.

There may be an additional layer of complexity: the Liquor Board planned to allow newly-licensed growers to bring some of their existing cannabis plants into the legal system, since otherwise there would be nothing for the new stores to sell. If newly-licensed growers have to grow new product from seed starting late this spring, the shelves will be bare until fall at the earliest.  Whether the new ruling puts a monkey-wrench in that machinery remains to be seen, as does the effect of the ruling on the bargaining over a new law next year. (Or will the governor call the legislature into special session to give it another try this year?)

Never a dull moment.


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

9 thoughts on “Washington State Court of Appeals bans medical marijuana stores”

  1. Strangely, I have not heard a public response from the usual advocacy groups, such as ACLU, ASA, or NORML.
    Not even the industry who "speaks" for the patients is saying anything publicly.
    I believe the ruling was on March 31, 2014, so time enough for a response.
    Shock and disbelief are the key moods.

    Our retail lottery happened last week and the results will be made public on Friday, May 2.
    1170 out of roughly 2100+ retail applications for 334 slots made it to the final lottery.
    Lots of work before a retail license is issued, but there is a storm brewing…

    1. The ACLU has not provided a public response because we were not surprised by the ruling.

      Senate Bill 5073 (the 2011 legislation discussed in the post) was intended to, among other things, finally offer qualifying patients and their designated providers with protection from arrest and prosecution. Since its passage in 1998, Washington's medical marijuana law has provided patients and providers with nothing more than an affirmative defense — the opportunity to convince a jury, by a preponderance (51%) of the evidence, that you met the legal requirements to be a patient or provider, after having been charged with a marijuana offense. Washington's medical marijuana law operates like self-defense: if someone attacks you, and you hurt or kill them while defending yourself, you can still be charged with assault or homicide (hurting or killing people remains illegal), but you can present evidence to the jury that you were acting in self-defense. If you convince them, you'll be acquitted.

      Senate Bill 5073 would have changed this aspect of Washington's medical marijuana law by creating a voluntary state registry for patients and providers. Patients and providers who chose to register would be exempted from arrest and prosecution for marijuana-related activities falling within the scope of the law. Those who obtained an authorization from their medical professional but opted not to register with the state would maintain the affirmative defense but still be subject to arrest and prosecution.

      This is the distinction the Court of Appeals decision draws: between legality and illegality that has an affirmative defense. Patients engaging in a true collective garden maintain an affirmative defense, but they are not engaging in legal behavior. They remain subject to arrest and prosecution just like a patient growing her own plants at home remains subject to arrest and prosecution:

      “Thus, the plain language of the statute does not legalize the use of medical marijuana. Instead, it provides a defense to an assertion that state criminal laws were violated. As such, medical marijuana use, including collective gardens, was not legalized by the 2011 amendments to the MUCA.”

      For a brief history of Washington's medical marijuana law, including its current "grey market" "dispensaries" and "safe access points" (commercial storefronts trying to fit within the definition of collective gardens), see the letter the ACLU submitted to the Washington State Liquor Control Board last November, during its consideration of medical marijuana recommendations to make to the legislature:

      Alison Holcomb
      Criminal Justice Director
      ACLU of Washington

  2. Did Washington post data on the conditions reported by medical marijuana users? In the Colorado registry, only 1% had cachexia, 3% cancer, 2% seizures, 1% glaucoma, but 94% "severe pain" (not otherwise specified). Nearly half of the registry was in the age groups from 21 to 40 and 67% was male.

    The fee for the Colorado medical registry has decreased. Currently the fee is $35, and is evaluated annually by the health department. The fee was lowered from $110 in 2007, and was again lowered from $90 in 2012. Such a low fee makes it an attractive proposition to be a medical user rather than a recreational user.

    Did Washington's medical cannabis experience parallel that of Colorado? It was not quite clear to me whether the state had a patient registry prior to 2011 when the governor apparently vetoed a portion of a law that would have created a registry–was that a registry of patients or a registry of members of the growing collectives?

    I sort of assume that a patient registry with some demographic data and the qualifying "indications" for cannabis would have existed since 1998 and would still exist, and would show if the largest portion of the registry consisted of young men.

    1. Washington has never had a medical marijuana registry. We are the only state with a medical marijuana law not to have a registry. A registry would have been created by the legislation discussed in the post, Senate Bill 5073 (2011), but then-Governor Gregoire vetoed that provision because it also included registration of the licensed, regulated producers and dispensers the bill would have created. Our governor does not have line-item veto power, so Gregoire had to veto the entire registry to remove the references to licensed producers and dispensers.

      Alison Holcomb
      Criminal Justice Director
      ACLU of Washington

  3. I believe by "registered patients" they mean people with a valid medical prescription, not registered with the state. I registered with the collective, they verified my prescription with the doctor.

    1. No, the court decision specifically meant patients registered with the state – via the Department of Health patient registry intended to be created by Senate Bill 5073 (2011) but vetoed by then-Governor Gregoire:

      “[The City of] Kent … contends that the plain language of the MUCA did not legalize collective gardens because collective gardens would only have been legalized in circumstances wherein the participating patients were duly registered, and the registry does not exist. The trial court properly ruled that Kent is correct.”

      Alison Holcomb
      Criminal Justice Director
      ACLU of Washington

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