Despite months of work by Washington state legislators to regulate the burgeoning medical cannabis dispensary industry, a two-day correspondence between the governor and two U.S. attorneys has put the entire effort in jeopardy.
The bill in question — Senate Bill 5073 — would define an industry that has been slowing growing over the past couple of years thanks to a gray area in the state’s laws governing medical marijuana.
If approved, the bill would require the agriculture department to license medical cannabis growers and the health department to oversee dispensaries, of which there are an estimated 40 in Spokane County alone. It passed in different forms in both the Senate and House in Olympia and lawmakers are now working to rectify the differences.
Those differences might not matter anymore.
After seeking guidance from the U.S. Department of Justice, Gov. Chris Gregoire issued a statement last week saying she wouldn’t sign the bill, which she reiterated at a press conference the next day.
“If I have my state employees intimately involved in a commercialization, growing operation, they could be subject to being called before the court as a criminal defendant,” Gregoire said at the press conference. “I will not put state employees in that position.”
Many predicted — as recently as the beginning of this month — that the dispensary bill would easily pass into law.
Those predictions abruptly changed on April 5 when Eastern Washington’s U.S. attorney, Michael Ormsby, warned landlords in Spokane County that they could face criminal prosecution and forfeiture of their property if they rented to medical marijuana dispensaries.
“We felt the landlords might not be aware of what federal law is, and what it allows and does not allow,” Ormsby says. “So we notified them and many of the landlords, I’m happy to say, have taken action.”
Ormsby says it’s “just a coincidence”that he sent the letter out just as the Legislature was trying to hammer out a solution for the state’s dispensaries. He wrote the letter, he says, because “the operators of these medical marijuana dispensaries … are in violation of federal law.
“These stores have multiplied dramatically over the past few months. Between six and eight of them are actually located very close to schools, youth centers, places where young people gather,” he says. “That to me is totally unacceptable.”
Eight days after that letter, and some say because of that letter, Gregoire wrote to U.S. Attorney General Eric Holder, seeking guidance on the issue. She wrote that she had been in contact with Ormsby and asked “whether state employees … would be immune from arrest or liability when engaged in the enforcement of this licensing law.”
The next day, Ormsby and Western Washington’s U.S. Attorney Jenny Durkan gave her the answer. State employees, they wrote, “who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the” Controlled Substances Act, which lists marijuana as one of the most hazardous drugs for human consumption along with heroin and LSD, among others.
That day, Gregoire issued a statement saying she wouldn’t sign any dispensary bill that made it to her desk.
“Her concerns are really unfounded … and I think that her timing is really unfortunate,” says Alison Holcomb, the drug policy director with the ACLU of Washington. “Sen. Jeanne Kohl-Welles [the primary sponsor of the bill] and many legislators and agency directors … have been meeting and talking about this bill since, literally, last spring.”
Scrambling to save the bill, ACLU attorney Shankar Narayan sent a letter to senators on Sunday, hoping to buttress their confidence in supporting it.
In it, he argued that six states have “clear dispensary laws” and that the “federal government has never prosecuted anyone — whether or not a state employee — who complies with state laws that license and regulate marijuana.”
Narayan also cited two different polls — one taken five months ago, the other five years ago. One showed that more than 80 percent of Washington voters thought sick people should have access to marijuana. The other said the same proportion of voters thought that “Washington State — not the federal government — should be able to make its own laws regarding medical marijuana.”
According to the state’s Constitution, the governor has three options when a bill hits her desk. She can sign it, passing it into law. She can veto it, or parts of it, killing the bill. Or — and this is the option some have suggested the governor is planning to take — she can choose to not sign it, allowing it to pass into law without her explicit approval.
“It’s fair to say she’s left that option open,” Holcomb says. “I don’t know if she’s telegraphing that message and I certainly don’t want her to clarify that position. I don’t want her to say that she will veto it.”
Holcomb says she’s “very confident” the bill will make it to Gregoire. For her part, the governor said she was eager to find a solution.
“Sen. Jeanne Kohl-Welles has put a whole lot of time and effort behind this,” Gregoire has said. “She is by no means going to give up and I have pledged to her I’ll do everything I can to help her to get something done this session.”