Wednesday, June 13, 2012

Are City, State Employees At-Risk Over Medical Cannabis Laws?

Last year, as the Washington State Legislature pushed a medical cannabis reform bill through both chambers, the US Department of Justice was pushing on another track. The bill, SB 5073, contained provisions legalizing state licensed medical cannabis dispensaries and producers much along the lines of regulations passed in Colorado in 2010.  Apparently, DOJ was alarmed by what it saw in Colorado: state-licensed dispensaries popping up across the state and all under the purview of Colorado's Department of Revenue.  At the same time, loosely-regulated dispensaries were cropping up all over California (some regulated locally, some not).  All while cannabis remained on Schedule I of the Controlled Substances Act.  The feds had remained silent while Colorado enacted its new medical cannabis law and here was Washington set to go down the same path.

As 5073 cleared both the State Senate and State House, Governor Christine Gregoire wrote to the DOJ in Washington, D.C. seeking guidance as to the effect of the bill's implementation as regards federal law.  Someone—and to this day, no one knows who—put the Governor up to making this query.  Two days later, the two US Attorneys for Washington State responded in a letter and told Gov.Gregoire that the feds remained committed to vigorously enforcing the federal CSA on cannabis regardless of any state laws.  Most of their emphasis was upon potential prosecutions of licensees under the proposed state law.

But then came a new tack in what was about to become a wide-ranging federal push-back on medical cannabis: the feds threatened to prosecute state employees who would implement the program.At least that's how media reports at the time read the letter.  So it is instructive to review what the US Attorneys actually wrote in their joint letter:

State employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.

Soon after, the Governor stated at a press conference that she would veto any portion of the bill that she felt put state employees at-risk.  This was an important statement for her to make, as the bill was already slated for a State Senate concurrence vote on the House version of the bill.  Gov.Gregoire was deluged with phone calls and emails asking her to ignore what many called a bluff by the feds.In the then 15-year history of medical cannabis in the US, not a single state or local official had been prosecuted or found liable for violating the CSA while implementing any provision of a state medical cannabis law.  Both Colorado and New Mexico had some form of state licensing of medical cannabis dispensers or growers at that time—and the feds had not threatened to go after either state or its employees or any local officials in those states.

Most prominently, Gov.Gregoire received a letter from Hugh Spitzer, a Seattle attorney and University of Washington School of Law professor.  Spitzer is also an expert on federal-state conflicts. He told the Governor she could safely ignore the US Attorneys' letter, because:

I am not aware of any situations in the last sixty years, and perhaps not since the Civil War, where state officials were personally prosecuted for carrying out ministerial functions under state law.

Spitzer is correct: since the Civil War, which was in the 1860s, the feds have not prosecuted a single state or local government employee for carrying out their duties under a state law of any kind where there was a conflict with federal law, despite America's deeply-contentious history of federal-state conflicts, especially during the Civil Rights era.

Gov. Gregoire ignored such advice and, on April 29, 2011, she vetoed significant portions of 5073, including sections of the bill creating state-licensed dispensaries and producers. She did leave intact, however, provisions creating collective gardens and allowing for local regulatory control.

Around the same time, US Attorneys in states with medical cannabis laws sent letters to the Governors of these states making similar threats.  In Maine and Vermont, officials there ignored the implied threats of prosecution and implemented state-licensed dispensaries, notably without any federal blow-back.  In Delaware, New Jersey and Rhode Island, Governors in those states put the brakes on state-licensing programs for a time before later allowing full or partial implementation of state-licensing programs (again, notably without federal interference).

Meanwhile, the State of Arizona was on the verge of implementing a voter-approved medical cannabis system that created state-licensed dispensaries.  The US Attorney there sent a letter to Gov. Jan Brewer and made threats similar to the Washington State letter.  Gov. Brewer, a conservative and no fan of medical cannabis, took the unusual step of having Arizona sue the federal government over its inability to begin state licensing of dispensaries (in an even more unusual step, the State claimed standing as both plaintiff and defendant).  The State claimed that it couldn't implement its medical cannabis program due to threats to prosecute state employees or others who worked to put the law into effect.

But that argument did not pass muster with a federal court judge. This past January, US District Court Judge Susan Bolton tossed out Arizona's lawsuit arguing that federal prosecutors had not threatened to prosecute state or local government employees for following state law. Specifically, the judge wrote:

Plaintiffs do not challenge any specific action taken by any defendant....Plaintiffs also do not describe any actions by state employees that were in violation of (the Controlled Substances Act) or any threat of prosecution for any reason by federal officials....These issues, as presented, are not appropriate for judicial review.

The short story of her ruling is that there is no threat to state or local employees from the feds and that Arizona and similar states are free to implement medical cannabis licensing systems.

The State of Arizona has not filed an appeal to this ruling, nor did it file an amended complaint, as the judge offered to allow.  Instead, Arizona has begun issuing licenses for medical cannabis dispensaries. Arizona is the Ninth Circuit of the Federal Courts system along with Washington State, so Judge Bolton's ruling does stand as a precedent in both states as well as other states in the Circuit with medical cannabis laws and state licensing programs.

The ruling also means that Gov. Gregoire was in error when she gave in to threats from Washington State's US Attorneys.
Philip Dawdy

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