Illuminating the hazy details of Cannabis Action Coalition v. Kent

About
a year ago, the Washington Court of Appeals Division I declared medical
cannabis illegal in Washington state. Now the Washington Supreme Court has weighed
in.

As a
brief refresher, the plaintiffs in Cannabis Action Coalition v. Kent challenged a City of Kent zoning ordinance
that essentially banned collective gardens and commercial MMJ
establishments within city limits. The plaintiffs argued that Kent could
not ban what state law allowed, but lost at the trial court and again at the
Court of Appeals. The Court of Appeals took issue with the plaintiffs’
premise—that 2011 amendments to the Medical Use of Cannabis Act (MUCA) “legalized” medical cannabis use—holding that a
municipality was well within its rights to “prohibit and punish the same
acts which constitute an offense [i.e. use cannabis] under state laws.”

Though
provisions of the 2011 amendments would have exempted patients and caregivers
from criminal prosecution if they were properly registered with the state (and
met several other requirements), after passage by the Washington legislature,
those provisions were vetoed by then-Governor Christine Gregoire. Gregoire’s
veto was prompted by a letter from Washington’s two federal prosecutors warning
that state employees administering the registry system would not be immune from
federal prosecution. Wanting to protect state employees, Gregoire
rejected all parts of the legislation dealing with the registry. Thus,
reasoned the Court of Appeals, since no patient or caregiver could register,
they would fail to meet the qualifications for exemption from prosecution, and
no MMJ use would be “legal” under the statute as it was signed into
law.

The
Court of Appeals ruling in Kent threw medical cannabis
in Washington into a chaotic state. Hundreds of access points and collective
gardens, whose legality had been somewhat dubious even prior to Kent, were now clearly in violation of state law. State and
local officials suddenly had to figure out what to do with MMJ outlets
while trying not to leave patients high and dry, while also simultaneously
navigating the new recreational cannabis waters under I-502.

Needless
to say, many were eager to see what the Washington Supreme Court would do with
the Kent case. The
plaintiffs asked the court to reverse the Court of Appeals’ decision,
contending that the legislature did intend to legalize medical cannabis, and
that MUCA should preempt Kent’s attempt to zone out MMJ operators. Last week
the court issued its ruling, which in some
ways was unsatisfying. The Supreme Court affirmed the court below, applying a
straightforward analysis of preemption law, holding that Kent’s ordinance was
consistent with MUCA and could therefore remain in place. Save for a footnote
though, the Supreme Court did not even discuss the illegality argument, on
which the Court of Appeals’ rationale was seemingly based. The Court decided
only that it did not need to determine “whether medical marijuana use is
‘illegal subject to an affirmative defense’ or is generally ‘legal’ under state
law.” The practical result of the Court’s restraint is that the parts of
the lower court’s opinion discussing the legality of medical cannabis remain in
force.

You might
say the Supreme Court punted on the question, but we should not be too
surprised. Appellate courts frequently decide cases on the narrowest grounds
possible, and this makes good policy sense, keeping the case law
from becoming muddled with a court’s unnecessary musings on side issues.
Judges just don’t like to make more decisions than they have to. Besides,
the Supreme Court is well aware of what has been going on in the legislature
and knew that the Kent decision would
eventually be superseded by newer laws and regulations. Indeed, it
mentioned the passage of revised Senate Bill 5052 (Washington’s MMJ overhaul
bill) and noted that its opinion only construed the law as it existed prior to
SB-5052. Now that Washington has a comprehensive plan for integrating its
existing medical and recreational cannabis laws, the Kent decision becomes a lot less important. Still, it serves
as a reminder why carefully-crafted and worded statutes and regulations are so
important in the first place, particularly in a new and still-controversial
industry like that of legalized cannabis.

Here’s to hoping that the dawn
of Washington’s newly revamped cannabis regime is a lot less hazy.