It all seemed so straight forward when voters approved Initiative 502 to legalize the recreational use of marijuana – shops would open, the state would get taxes and the will of voters would be honored. Life is never that simple, however, especially when lawyers get involved.
There are three prevailing theories local governments are following, which illustrates the potential legal paths ahead for a state law that violates federal law.
Some cities, namely Seattle and Tacoma, have spent years researching the issues surrounding expanded marijuana use and have opted to zone and license retail pot operations much like any other commercial enterprise. The shops fall under the Washington State Liquor Control Board regulations and are seen by many cities as having at least tacit approval from the federal government. The Department of Justice issued a letter this summer that legally dodged the fears of federal raids and charges against cities for violating federal law, which still defines marijuana as an illegal drug.
Many small cities declared moratoria on marijuana operations to study zoning rules and, frankly, to buy time until the legal cloud passes.
Pierce County took a different read of the federal letter. The council overrode a veto by Executive Pat McCarthy when the split council voted to not allow pot businesses in unincorporated areas until the U.S. Congress passes legislation that no longer classifies marijuana as a federally controlled substance. That is not likely to happen anytime soon. That line of legal thinking puts the county on the hook for enforcing federal laws that the state does not and the state has the prevailing authority over the municipalities. Cities are granted authorities by the state, not the federal government, after all.
The legal thought behind the ban of pot shops outside the county’s urbanized areas is that allowing the sale of a federally declared narcotic would open the county to federal and civil lawsuits for violating the federal laws. Of course, the ban itself will open Pierce County up to legal action for violating state law and the will of its voters. But that is another story.
Pierce County is an interesting case because areas that don’t want pot shops or grow operations within their borders could generally find ways through their own business licensing rules to make it difficult for shops to open. The county doesn’t require a business license, and the state laws about pot shops don’t address ways for local governments to simply opt out.
A hypothetical pot shop that opens in unincorporated areas could have a state business license and follow the rules outlined by I-502 and state regulators but still find itself in court for violating county code. Questions surrounding the legal standing of the code itself would certainly be defense against any county charges since the state didn’t give the authority to ban marijuana shops.
Notice a pattern? It’s a legal circle where different governments are largely just opting out of making a decision on behalf of their residents and are using interpretations of the law to fit their goals rather than following the will of state voters, but even that has troubles.
Clearly voter-approved laws must still be Constitutional. States can’t just change their voting ages or outright ban abortion or reinstitute slavery or abandon minimum wage and safety standards even if voters approve them into law. The issue is where does the law of the land rest with the federal government and when does it rest with the state and local residents? The issue is more than 150 years old and legal minds still debate it.