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The End of Medical Marijuana in Washington?

In the wake of news that the first recreational marijuana licenses had been granted, and before the upcoming lottery for retail licenses, come two important Court of Appeals decisions interpreting the medical marijuana laws (MUCA, short for Medical Use of Cannabis Act, RCW 69.51A).

In  Cannabis Action Coalition v. City of Kent, http://www.courts.wa.gov/opinions/pdf/703960.pdf, the court upheld the City of Kent’s blanket zoning restriction against “collective gardens.” The plaintiffs in the suit had sought to overturn Kent’s zoning ordinance, and  the City of Kent in turn had sought an injunction against violation of its ordinance.

In State v. Reis, http://www.courts.wa.gov/opinions/pdf/699113.pdf, the court upheld a search warrant which seized marijuana from a marijuana  grower who had about 13 pounds of marijuana on his premises as well as a number of mature and juvenile plants.

Both of the court decisions analyzed the effect of former Governor Gregoire’s partial veto of amendments to MUCA that passed in 2011. The amendments would have created a “registry” of collective gardens statewide. Proof of registration was one of several prerequisites for enhanced protection against prosecution and searches of  collective gardens.

Governor Gregoire vetoed the portions of the amendments that created the registry, in part because of threats from the Federal government that state employees would not be immune from prosecution  for drug charges under Federal law if they “assisted” in activities that were (and are) illegal under Federal law.

The court analyzed the remaining portions of the law, and concluded that no one could comply with the section of the law which purported to provide protection against prosecution, because no one could register with the state, since that portion of the statute had been vetoed. What remained to protect medical marijuana patients and their designated providers was the affirmative defense portion of the law, RCW 69.51A.043. The court held that as a result of the veto,  “collective gardens” had not been legalized, and therefore the City of Kent could completely ban them. In the Reis case, the court held that the search warrant was valid, and that Reis could present his affirmative defense at trial.

These two decisions do not affect the recreational marijuana markets created by I-502. But they  do create serious problems for medical marijuana patients and those who assist them in obtaining their medicine. They may provoke further action by the Legislature next year, which attempted this year in a number of bills, such as SSB 5887, sponsored by Senator Ann Rivers of La Center, to “unify” the regulation of both the medical marijuana and recreational marijuana markets. To review the history of that bill, go to: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5887&year=2013.

It seems likely that the bill will be reintroduced in next year’s legislative session when amendments to I-502 will be easier to make.

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