The state Attorney General’s Office is taking a two-step approach in a battle over marijuana legalization in Fife, urging a judge to uphold the city’s ban on pot businesses while arguing against the city’s claim that federal law trumps state voter-approved Initiative 502.
Attorney General Bob Ferguson filed the legal brief this week as part of an effort to properly interpret I-502 and “uphold the will of the voters” in a legal dispute over Fife’s ban. It suggests that local governments have significant power over the state-regulated marijuana industry because of what Ferguson says is a “silent” loophole in state law.
The AG has intervened in a lawsuit in which two prospective pot retailers are challenging Fife’s ordinance prohibiting all marijuana-related businesses in the city limits.
The American Civil Liberties Union of Washington on Monday also was granted the right to intervene in the case to represent several potential marijuana businesses, including Tacoma retailer Rainier on Pine. The ACLU has maintained that local governments can’t ban marijuana businesses and that I-502 pre-empts federal prohibition of the drug.
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In his brief filed Monday in Pierce County Superior Court, Ferguson argued that I-502 is “silent” about the authority of local governments.
“While the voters or the Legislature could have overridden that authority, or could override it in the future, they have not yet done so,” the brief states. “Thus, ordinances like Fife’s remain a policy choice available to local governments.”
Ferguson wrote that while the state established a regulatory system that allows for marijuana businesses, nothing in state statute requires local governments to allow those businesses.
He requested that Judge Ronald Culpepper uphold the city’s ban on the manufacture, processing and sale of marijuana.
However, Ferguson also urged the judge to reject Fife’s claim that federal prohibition of marijuana trumps I-502, the state initiative passed by voters in 2012.
“There is a strong presumption against finding that federal law overrides state authority,” he wrote, “and the City has failed to demonstrate that Congress intended to override any requirements I-502 may impose on Fife.”
The first hearing on the case is scheduled for Aug. 29.
The language in the AG’s brief echoes a January advisory opinion he issued that states I-502 doesn’t prevent local governments from banning marijuana-related businesses.
That prompted some cities and counties to move ahead with marijuana prohibition, with local officials leaning on Ferguson’s opinion as a legal defense.
As for the conflict between federal and state law, advocates and opponents alike have been waiting for the issue to see its day in court.
Fife is the first city to use the court system to call out the apparent contradiction surrounding recreational marijuana. The city argues that the drug is “still criminal, in virtually all cases, under federal law regardless of compliance” with I-502, according to court documents.
The Fife City Council on July 8 approved an ordinance “prohibiting all business uses involving marijuana.” The ordinance doesn’t specifically make reference to conflicts between state and federal marijuana laws. However, it leaves open the option for the City Council to revisit the “dynamic issue.”
It was after the plaintiffs sued the city that Fife introduced its federal pre-emption defense.
The stated purpose of the ban is to “promote the public health, safety, morals, and general welfare” of the city, according to the ordinance. It notes that the state constitution allows local governments to make and enforce, within limits, their own regulations not in conflict with “general laws.”
Mark Nelson, an attorney representing the plaintiffs from potential pot businesses, cited the same language Tuesday in arguing that Fife’s ban is unconstitutional.
“Cities and counties only get to create and enforce laws that are not in conflict with state laws,” Nelson said. “A ban prohibiting marijuana uses that are permitted by state law is a direct conflict.”
As for the AG’s argument that both supports and rejects Fife’s defense, Nelson said it’s a position that’s tough to grasp.
“He’s trying to have it both ways,” he said.