Lawsuit might make or break state pot law

The Seattle TimesJune 4, 2014 

A lawsuit against the city of Wenatchee could have sweeping implications for legal pot’s future in Washington and other states.

The lawsuit was filed Tuesday afternoon in Chelan County Superior Court by Shaun Preder, who is seeking a state license for a retail pot store in Wenatchee. But Preder’s SMP Retail can’t open a store because Wenatchee officials adopted a policy that says to get a city business license, entrepreneurs must comply with federal law.

Marijuana remains illegal under federal law, even though Washington voters legalized possession, production and regulation of the drug via Initiative 502 in 2012.

The case could open the door to a court ruling on whether the federal government can trump, or pre-empt Washington’s pot law. Such a ruling could invalidate Washington’s regulations and emerging pot industry, or uphold it. Either outcome could influence legalization campaigns planned in states such as California.

For that to happen, Wenatchee would have to respond to Preder’s lawsuit by invoking its business license policy and the federal prohibition of pot.

If the city did raise the federal issue — instead of choosing not to fight, or just relying on state law in its arguments — then the American Civil Liberties Union of Washington would intervene to argue that federal law doesn’t kill I-502, said Alison Holcomb, chief author of the initiative.

Wenatchee has 20 days to respond to the lawsuit, said Hilary Bricken, Preder’s attorney. Preder, 34, is president of an office furniture company in Woodinville. He said he isn’t seeking notoriety. “I’m just trying to move forward with my business. I think they should obey state law,” he said.

Lawyers and judges would be eager to take on the case because of the high stakes. “It will be the kind of case I think the U.S. Supreme Court lives for,” said King County Prosecuting Attorney Dan Satterberg in the documentary “Evergreen: the Road to Legalization,” which begins a theatrical run in New York City this month.

The initiative was written with this scenario in mind, and Holcomb said the ACLU, assisted by local law firms Gordon Thomas Honeywell and Garvey Schubert Barer, is prepared to make its case.

Bricken said Wenatchee made itself a “perfect target for this kind of lawsuit.” She said she is not worried about setting back legal pot with the lawsuit.

“The question on the table is whether cities can rely simply on federal prohibition to deny these businesses in their jurisdictions. We were careful to not call into question the validity of I-502 itself,” Bricken said.

Tacoma permits marijuana businesses in certain parts of the city, but many Pierce County communities – the unincorporated areas, Lakewood and Puyallup among them – have de facto bans or moratoriums. Some of the restrictions rely on federal prohibition as Wenatchee’s does.

Wenatchee Mayor Frank Kuntz said it’s too early to know what the city’s response would be until the City Council discusses the case with its lawyer at its next scheduled meeting June 12. City Attorney Steve Smith said Tuesday of the lawsuit, “I haven’t seen it yet. I’m not aware we’ve been sued.”

Kuntz had recommended Wenatchee drop the federal requirement from its business license process to avoid such a fight. But the City Council voted 4-3 earlier this year to maintain the federal compliance provision.

If a legal battle looks like it will cost the city a lot, Kuntz said, he’d advise the council not to litigate. But that decision is up to the council, he said. “They control the checkbook,” he said.

Bricken said earlier this month that the ACLU was “plaintiff-shopping,” looking for a case featuring a pot entrepreneur whose license was jeopardized by federal prohibition.

“I’m confident the authors of 502 were smart enough to know we would get in this battle,” she said.

Holcomb laid out the arguments against federal pre-emption of I-502 in a presentation last year at the Seattle University School of Law.

Holcomb starts from the legal viewpoint that the federal government can’t force a state to criminalize a particular activity. So Congress can prohibit marijuana growing, sales and possession but they can’t make state officials enforce federal law against pot.

That seems to leave the federal Department of Justice the choice of enforcing federal law against Washington adults possessing marijuana, or against the state’s scheme of licensing and regulating production and sale of the drug.

A legal battle, in Holcomb’s analysis, would revolve around what Congress intended with the Controlled Substances Act, which makes marijuana federally illegal.

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