Outside firm will handle lawsuits against Pierce County's marijuana ordinance

County hasn’t been sued over marijuana ordinance, won’t defend suits if they come

Staff writerJanuary 13, 2014 

Pierce County Prosecuting Attorney Mark Lindquist says an outside law firm will defend the county in any lawsuits against the marijuana ordinance recently adopted by the County Council.

That measure indefinitely banned recreational pot businesses from unincorporated areas, even if they’re granted a state license.

Stewart Estes of Keating, Bucklin & McCormack in Seattle will represent the county on the marijuana ordinance, the prosecutor said. A contract signed by Estes but not yet finalized by the county calls for the county to pay Estes and his firm up to $150,000, Lindquist said.

The outside firm is being used, Lindquist said, because it has an “expertise and successful track record defending against this type of lawsuit.” It also has relationships with other jurisdictions in the state that have taken similar stands against marijuana businesses.

“We feel this firm is particularly well qualified to defend the county on this issue of the conflict between state and federal law,” Lindquist said. “The question you end up asking is who can do the best job of defending the county on a particular lawsuit. Usually the answer is us. Sometimes the answer is an outside firm.”

Whether the county pays an outside lawyer or uses its own staff members, there’s a cost in defending lawsuits in money or staff time, Lindquist said. When using his own staff, he said, “It’s just harder to quantify.”

He said the prosecutor’s office advised the council not to adopt the ordinance. He declined to state why because of attorney-client privilege.

The council voted in November to prohibit licensed marijuana businesses from operating in the county until Congress removes marijuana from the list of federally controlled substances. County Executive Pat McCarthy vetoed the ordinance, calling it “ostensibly a ban.”

Last month, the council voted 5-2 to override McCarthy’s veto. Council members Rick Talbert and Connie Ladenburg, both Tacoma Democrats, voted no.

The council sided with upholding the federal prohibition against marijuana, even though Washington voters approved Initiative 502 in 2012 legalizing the recreational use of marijuana.

No one has sued the county over the ordinance. But supporters of legalized marijuana have said it will be challenged because it bans what state law allows.

Lindquist referred questions about the reasons for his office’s legal stance to Talbert and Ladenburg, because they stated in public meetings the prosecutor’s office advised against the ordinance. Ladenburg confirmed she’d mentioned receiving legal advice but did not want to go into details.

Talbert said Friday the prosecutor’s office recommended the council not adopt a ban or what it said was the even riskier option of a de facto ban. The adopted ordinance posed even greater legal risk by zoning marijuana businesses, but making them “impossible to attain” because of the required federal action, he said.

In a conflict between state and federal law, the prosecutor’s office said the riskier choice legally for the county was to ignore state law and rely on federal law, Talbert said.

“The county’s roles are to carry out state law,” Talbert said. “We are a creature of the state.”

Council Chairwoman Joyce McDonald, R-Puyallup, characterized advice from one of the prosecutor’s staff members differently.

“He told us his opinion,” McDonald said. “He gave us options.”

She declined to elaborate because the advice was given in confidential executive sessions.

McDonald said Lindquist recommended using an outside firm.

“I thought it was a good idea,” she said.

If sued, “the county intends to rely on the fact that marijuana is still a Schedule 1 controlled substance and is therefore illegal under federal law,” Lindquist said. “One thing is clear: Washington is on the cutting edge of a significant conflict between federal and state law,” he said.

Steve Maynard: 253-597-8647 steve.maynard@ thenewstribune.com @TNTstevemaynard

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