322 P.3d 1246
Wash. Ct. App.2014Background
- In 2011 the legislature passed E2SSB 5073 to amend the Medical Use of Cannabis Act (MUCA), creating an optional state registry for qualifying patients/providers and authorizing registered participants to avoid prosecution; unregistered patients would have an affirmative defense.
- The bill also allowed "collective gardens" (patients pooling resources to grow medical cannabis) and included a section (1102 / now RCW 69.51A.140) expressly authorizing cities to adopt zoning, licensing, health/safety requirements related to cannabis.
- Governor Gregoire vetoed 36 of 58 sections (including the registry-creating provisions) after federal DOJ warnings, leaving 22 sections intact and issuing a veto message explaining her view that the surviving provisions only created affirmative defenses, not full legalization.
- The City of Kent enacted Ordinance No. 4036 banning collective gardens within city limits; challengers (Cannabis Action Coalition and individuals) sued for declaratory and injunctive relief arguing the MUCA legalized collective gardens and preempted local bans.
- The superior court granted summary judgment for Kent, dismissed some plaintiffs for lack of standing, and entered a permanent injunction enjoining challengers from violating the ordinance; the challengers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2011 MUCA amendments legalized collective gardens | MUCA’s RCW 69.51A.085 plainly permits creation/participation in collective gardens, so they are legal | Because the state registry (section 901) was vetoed, registration is impossible; survivors only provide at-best an affirmative defense, not legalization | Court: The statute does not legalize collective gardens; it provides an affirmative defense only |
| Whether the governor’s veto message may be used to determine legislative intent | Plaintiffs urge reliance on original legislative intent as passed by legislature | Kent & state argue the enacted law is the post-veto bill and the governor’s veto message is the controlling legislative history | Court: Governor’s veto message is the primary statement of intent for the statute as enacted; legislature did not override veto |
| Whether RCW 69.51A.140 (local authority) prevents cities from banning collective gardens | Plaintiffs: RCW 69.51A.085 stands alone and preempts local bans; MUCA protects private noncommercial production | Kent: RCW 69.51A.140 expressly preserves local zoning/business/health powers; MUCA does not preempt field nor conflict with local ban | Court: MUCA contemplates local regulatory role; Kent’s zoning ban is within municipal authority and not preempted |
| Whether Kent’s ordinance conflicts with state law or is preempted | Plaintiffs: Ordinance conflicts with MUCA and thus is preempted/invalid | Kent: Ordinance prohibits an activity that remains unlawful under state law (only an affirmative defense exists); ordinance harmonizes with statute | Court: No irreconcilable conflict; ordinance valid and constitutional; injunction proper |
Key Cases Cited
- Wash. Fed’n of State Emps., AFL-CIO, Council 28 AFSCME v. State, 101 Wn.2d 536 (Wash. 1984) (governor may veto individual sections even if meaning of bill changes; judicial review should respect separation of powers)
- Hallin v. Trent, 94 Wn.2d 671 (Wash. 1980) (governor acts in a legislative capacity when approving/vetoing legislation)
- Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582 (Wash. 1998) (governor’s veto message is considered a statement of legislative intent)
- City of Tacoma v. Luvene, 118 Wn.2d 826 (Wash. 1992) (test for conflict between local ordinance and state law: whether ordinance permits what statute forbids and vice versa)
- State Emps. v. Fain/related precedent discussed in opinion, 101 Wn.2d 536 (Wash. 1984) (legislature’s power to override veto as check on governor’s sectional veto)
- State v. Fry, 168 Wn.2d 1 (Wash. 2010) (an affirmative defense does not, by itself, legalize the underlying activity)