Article by Erik Smith. Published on Saturday, April 30, 2011 EST.
Governor Guts Bill Creating a Medical Marijuana Industry, and Now It’s Open Season on Dispensaries Across the State
Gregoire deals a harsh setback to a burgeoning new industry.
By Erik Smith
Staff writer/ Washington State Wire
OLYMPIA, April 29.—An effort by medical-marijuana advocates to clarify a vague state law and turn pot sales into a bona fide taxpaying industry wound up backfiring on them Friday. Gov. Christine Gregoire used her veto pen to gut the bill.
Not only did she toss out the special protections that had been written for pot growers and medical-marijuana dispensaries, she also opened the door to crackdowns by local and federal authorities. Now it’s open season for any sheriff that wants to close down the friendly neighborhood weed store.
To that the governor seemed to shrug.
“There’s nothing standing in the way of locals taking action,” she said. “I leave that to them.”
It was a bittersweet ending for Washington cannabis advocates, who this year scored their greatest measure of acceptance ever in this state – a bill that might have made it possible for wacky tobacky growers and dealers to join the local chamber of commerce. The measure laying the basis for a legitimate new industry made it all the way through the state legislature. But the governor’s action Friday leaves them in the same legal netherworld in which they have operated since 1998, when voters approved an initiative that decriminalized marijuana use for medical purposes.
In truth it made matters worse. By vetoing the heart of the bill, the governor made it clear that the state won’t get in the way of local prosecutions or municipal zoning regulations aimed at stamping dispensaries out. Many agencies and local governments had been waiting to see what the state would do.
Gregoire said it wasn’t her fault. In fact, some of her best friends have used medical marijuana, she said.
She blamed it all on the feds. As a national movement toward marijuana legalization gathers steam, they have been turning from tolerance and threatening to crack down on states that ignore federal prohibitions. As if to underscore that point, the U.S. Attorney for Eastern Washington, Michael Ormsby chose Thursday, the day before the bill-signing, to begin raiding medical-marijuana dispensaries in Spokane.
“I cannot disregard federal law on the chance that state employees will not be prosecuted,” Gregoire said. “What would I say to them if they are?”
From Out of the Shadows, an Industry
Senate Bill 5073 has proven one of those bills that rise up from nowhere and force the Legislature the take notice. Every hearing this year brought a packed house, every debate on the floor drew passionate speeches on both sides. And when it came time for the denouement Friday and the governor faced the reporters it was standing room only.
The measure, sponsored by Sen. Jeanne Kohl-Welles, D-Seattle, aimed to clarify Initiative 692, the medical-marijuana initiative. Washington is one 14 states with laws allowing patients with bona fide medical conditions to legally possess the drug. But Washington’s is a quirky law – it doesn’t protect patients from arrest, just allows them to present a defense at trial. An oddly worded provision appears to allow third parties to provide mary jane – but it is vague enough that some local law enforcement authorities maintain it doesn’t permit growing and sales for multiple patients.
The bill aimed to end all confusion, establishing the right under state law to operate dispensaries and creating a registry of medical-marijuana patients as a protection against arrest. It required the Department of Health to draft regulatory standards as it might do for any business, and established a Department of Agriculture licensing program under which growers might operate with state sanction.
The measure drew support from patients, doctors, and even King County Prosecutor Dan Satterberg, who said a legal industry would reduce the risk of violence. Many in the hemp crowd cheered it as a first step toward full legalization. Law enforcement officials generally were opposed, for exactly the same reason.
Won’t Stand Up to Feds
The hitch comes with federal law, which continues to classify marijuana as an illicit “Schedule 1” drug with no officially recognized medical use. The feds two years ago signaled their intent not to prosecute those who comply with state medical-marijuana rules, in the so-called “Ogden Memo,” written by U.S. Deputy Attorney General David Ogden. But this year U.S. attorneys across the country have been warning states not to push them too far. A recent letter to the city of Oakland from the local U.S. attorney says agents will enforce federal marijuana laws even when they conflict with state law.
What brought it all to a head in Washington was a conference call to the governor after the bill passed the House and Senate, from the two U.S. attorneys in this state – Ormsby and Jenny Durkan, who covers Western Washington. They warned that state officials themselves could be prosecuted. At the governor’s insistence they put it in writing.
“The landscape is changing,” Gregoire said. “U.S. attorneys are now reinterpreting the memo of two years ago and restating the fact that they are not going to prioritize prosecution of legitimate medicinal marijuana patients. But anything beyond that, they are not suggesting they are going to stand down. They’re suggesting, in fact, that they have the right to enforce, and they very well may. And this action, these raids [in Spokane] is an indication of that.”
Gregoire said it’s not a fight she wants. “State law does not trump federal law,” she said. “Some have urged me to sign the bill anyway and assert states’ rights. But I have to ask, is it a state right to violate federal law? Is it a state right to put our state employees at risk of federal arrest and prosecution?”
Gregoire’s partial veto left a few elements of the bill intact, including protections for medical-marijuana patients in child-custody disputes and organ transplants. But it also tightens prescription procedures. Grow operations are limited to 45 plants.
Here’s another sign of how far the medical-marijuana trade has come: It has its own trade association. Philip Dawdy, communications director for the Washington Cannabis Association, said the group will have to ponder its next move. One possibility – it might call the governor’s bluff, and push a bill during the current special session that puts licensing and regulation in the hands of a private nonprofit agency. That would take state employees out of the picture.
What really happened, Dawdy said, is that the feds “just found out they can intimidate a governor on this question. The idea that they might take action against state employees when they haven’t used those provisions [of law] since the Civil War – wow.”
Association lobbyist Ezra Eickmeyer predicted tough times ahead for medical-marijuana growers and sellers in Washington.
Trench Warfare Ahead
“We are going to see at least one two or three years of city-by-city trench warfare, political trench warfare,” Eickmeyer said. “We are trying to keep some access points open in cities so that patients can get access.”
Shankar Narayan, lobbyist for the American Civil Liberties Union, was critical of Gregoire’s decision. “You are seeing federal action, but frankly it is going to be a short light-and-sound fury show from the feds. They can’t go after every dispensary in our state, let alone the entire country.
“Is this really the sustainable solution that our governor and the federal government is offering us? Patchwork raids against dispensaries? And simply put, the raids actually show up the need for this bill, because the raids shut down both legitimate dispensaries as well as sham operations. The problem is that without a law like this, you can’t tell which is which, and you have left the patients out in the cold again, because you have shut down both legitimate and illegitimate sources for them to get medical cannabis.”
Ezra Eickmeyer of the Washington Cannabis Association.