A lawsuit over bans on marijuana businesses is headed to Pierce County Superior Court. The legal challenge has put the tiny city of Fife in the spotlight. That’s because the case could potentially derail Washington’s new system for legalized marijuana.
Initiative 502 provided for a new regulatory system for legal marijuana sales. But does that law give cities the ability to ban marijuana businesses if they so choose? That’s the first question for the court.
The Fife City Council banned marijuana businesses this summer, prompting aspiring business owners to sue. Plaintiff Edward Wetherbee said he wanted to open a marijuana retail store in Fife as part of the stores allocated to Pierce County, but the Fife city clerk refused to accept his application for a business license.
City Attorney Loren Combs said he’s been trying to downplay the importance of this lawsuit despite the many lawyers seeking to intervene in the case. “This case has taken on a life of its own,” Combs said. “Because the city of Fife only has jurisdiction over five square miles in Pierce County.”
The case is in the headlines because of a legal door that Combs has opened. He argues that marijuana is illegal under federal law, and that in this area federal law “preempts” or trumps state law. It's the first time this challenge has been heard in court since I-502 passed in 2012.
Under this argument, I-502 could be found unconstitutional. The ACLU made clear they would jump into any case that argued for preemption.
Combs said his client, the city of Fife, told him to go ahead and make this case anyway.
“The amazing thing about my client is they don’t feel intimidated when people try to bully them around and threaten them with litigation,” Combs said. “My client does what it believes is right and the majority of the City Council felt this was the right thing to do.”
Seattle attorney Jared Van Kirk is part of the ACLU’s legal team in the Fife case. He said courts have traditionally deferred to federal law in areas like immigration. But on drug policy, he said federal laws give states more latitude and their goals are not in conflict here.
“Despite what the city of Fife says, and although it is a different approach, it is a new approach, we believe the Washington approach is entirely consistent with priorities and goals of federal government,” Van Kirk said, “which is to combat drug abuse and control the illegal distribution of drugs.”
It’s possible the court won’t get into the thorny issue of federal preemption. The case may merely determine whether state law gives cities the power to ban marijuana businesses. I-502 doesn’t directly address this.
The ACLU of Washington, which helped write the initiative, said cities can’t enact bans.
ACLU attorney Mark Cooke said the initiative was intentionally different from the state’s alcohol laws. “Under Washington alcohol licensing laws there is a local option, where cities or counties can – via an election – prohibit the sale of alcohol. This specific provision was purposely not included in I-502,” he said.
The Washington Attorney General, however, takes the omission to mean that cities retain the power to ban businesses under I-502.
Noah Purcell is the solicitor general, a part of the attorney general’s office. His office is participating in the court case. He is defending the right of cities to make these land use decisions, and the right of the state to pass I-502. It’s federal power that he doesn’t want to see prevail.
“The big danger here is that basically the state supreme court or the U.S. Supreme Court eventually holding that federal law preempts the state-regulated system for growing and selling marijuana,” Purcell said.
He said attorneys consider a jury trial unlikely in this case since it presents mostly legal, not factual, questions for the court. And he predicted that the outcome in Pierce County will be promptly appealed to higher courts.
Supporters of I-502 say changes to the law may be needed to give cities more clout or to share revenue from I-502 with them. They just hope the law can withstand court challenges so changes can be made through the legislature or future initiatives instead.