The nonbinding opinion issued by Attorney General Bob Ferguson that cities and counties have a constitutional right to ban state-sanctioned sales of marijuana has exposed a flaw in Initiative 502. It sets the stage for a number of potential lawsuits that could ultimately affect Washington’s legalization experiment.
Unless a state law strictly forbids it, there’s a strong legal presumption that cities and counties can enact their own regulations. On this point, the Attorney General’s office believes I-502 was silent.
Alison Holcomb, the initiative’s lead author, disagrees. She says I-502 directed the state Liquor Control Board to consider “adequate access” while licensing a “maximum” number of retail pot stores in each county.
But Ferguson told The Olympian editorial board that the initiative failed to specify a minimum number of stores. Therefore, under the strong presumption in state law, cities and counties could set their minimum at zero stores.
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The Legislature can and should amend the initiative in this session to align its language with the intent of the law. It would take a two-thirds vote, but if lawmakers do not act, a number of lawsuits are inevitable.
Holcomb and other I-502 supporters may seek a judicial review of the attorney general’s opinion. Some marijuana businesses could sue the Liquor Control Board.
The most dangerous lawsuit might come from pot entrepreneurs licensed by the state against the cities or counties banning them. That could lead to an argument over whether federal or state law should prevail.
If the courts rule in favor of federal law, that might make Initiative 502 illegal, and bring a halt to the state’s plans for growing and selling marijuana. All of the liquor board’s planning and the state’s projections for new revenue will go up in smoke.
The Legislature must not allow this to occur.
Some legislators have suggested a bill that takes away state funding from cities and counties that ban pot sales, as a means to coerce compliance. If lawmakers can’t get the two-thirds majority required to amend initiatives in their first two years, such a bullying tactic might be necessary. But it doesn’t guarantee success.
We hope legislators will take the high road. They should correct I-502’s language to legally reflect the initiative’s intent to provide “adequate access” to everyone in the state.