Washington State’s top legal official is preparing to potentially sue the Trump administration over marijuana enforcement policies, he confirmed in an interview on Wednesday.
“In my view, we’ve got a legitimate business, playing by our rules here in Washington State and [if] the federal government comes in to try to shut that down, we’d be interested in that or any step that’s taken to adversely impact the system as a state that we have going forward,” state Attorney General Bob Ferguson (D) said. “That would be something we would be paying close attention to. My job is to defend state law, including initiatives.”
While making it clear that any legal actions would be determined on a case-by-case basis, Ferguson said that his office is ready to defend cannabis businesses that are in strict compliance with state law.
“Hypothetically speaking, there could be a business that’s licensed in Washington State selling marijuana that’s all in state law. Let’s assume they’re following state law to a T — that’s important — and the feds go in and try to shut that business down, they seize the marijuana or the proceeds,” he said. “If it’s a business just following our rules and they’re a business minding their own business selling marijuana, yes, that would get our attention for sure… In general if there was a threat to our industry, that would have our attention.”
Ferguson’s comments, which came during a Wednesday interview with the editorial board of The Columbian, a local newspaper in Clark County, Washington, follow his office’s release of a notice last month that asked marijuana industry operators who believe they have been harmed by federal enforcement policy changes to get in touch.
The notice came in response to a move by U.S. Attorney General Jeff Sessions to rescind Obama-era guidance that has generally allowed states to implement their own cannabis laws without federal interference.
It was widely speculated that the invitation by Ferguson’s office for marijuana business owners to share their experiences signaled the start of preparations for possible lawsuits against the Sessions move.
I’m just speculating, but this reads to me like the Washington State attorney general’s office might be looking to ID potential plaintiffs for a federal lawsuit against Sessions’s anti-maijuana move… pic.twitter.com/o3SgGvfVI7
— Tom Angell 🌳📰 (@tomangell) January 22, 2018
Leafly noted that Ferguson has not been shy about starting or joining lawsuits against the Trump administration over the course of the past year, so it would not be surprising to see his office take the lead in a court action over cannabis policy.
Now, Ferguson has confirmed that he is “prepared if there needs to be a legal fight on the future of marijuana legalization in Washington State. We hope it doesn’t come to that, but we’ve always felt that way.”
He added that already “there have been conversations” with cannabis industry operators who feel they have been affected by the federal move.
“We’ve been reaching out,” he said. “As a result of Attorney General Sessions’s decision to roll back the Cole Memorandum, has anyone been adversely impacted by that? Has a bank stopped working with them, for example, no longer taking the proceeds from their sales? We’re interested if there’s any adverse impacts from that decision on any businesses out there and folks. We’re interested in hearing from them.”
Also in the interview with the Columbian, Ferguson criticized Sessions for refusing to meet with him and Gov. Jay Inslee (D) to discuss cannabis. And he called out the federal attorney general for making statements about marijuana that are “riddled with factual mistakes.”
“There’s no way to sugarcoat that,” he said.
Photo courtesy of Nicolas Raymond.
DEA Denies Request To Protect Iowa Medical Marijuana Program, But State Still Considering Action
The Drug Enforcement Administration (DEA) rejected a petition to exempt Iowa’s medical marijuana program from the Controlled Substances Act (CSA) this month, Marijuana Moment has learned. But the activist who filed the request plans to push again for the exemption—and the state itself is considering separately filing a petition of its own to the federal agency.
The ask here is unconventional and hasn’t been pursued by any other state that has legalized cannabis for medical or recreational purposes. But longtime activist Carl Olsen has worked with members of the Iowa Department of Public Health to etch out a plan to pursue the exemption under an existing federal statute in accordance with a bill that state lawmakers passed earlier this year.
Olsen’s initial petition, submitted in 2019, was rejected by DEA on November 10. The agency said in a letter that it was denied “because the [Controlled Substances Act] controls marijuana under schedule I, and your requested exemption would result under the circumstances in the lapse of regulatory controls and administrative, civil, and criminal sanctions applicable to substances placed on the various CSA schedules.”
But from the activist’s perspective, DEA didn’t do its due diligence in reviewing the statute that he claims provides for the state-level exemption. And he’s got the tentative backing of the health department, which is still considering submitting its own request, albeit on a different time schedule. The body might wait until President-elect Joe Biden is inaugurated, as they feel his administration may be more amenable than the current one.
DEA regulations stipulate that the agency’s administrator “may grant an exemption in his discretion, but in no case shall he/she be required to grant an exception to any person which is otherwise required by law or the regulations.”
Owen Parker, program manager for the health department’s Office of Medical Cannabidiol, told Marijuana Moment that officials are “still evaluating as how to implement” the requirement in the Iowa bill that passed this year to push federal agencies on protecting health care facilities in the state from federal punishment.
“No final decisions have been made at this time,” he said.
The language of the state legislation in question doesn’t specifically call on regulators to submit an exemption application. Instead, it broadly calls on the public health department to “request guarantees from the agencies of the federal government providing funding to educational and long-term care facilities that facilities with policies allowing patients to possess medical cannabidiol on the grounds of the facilities…or allowing facility staff to administer medical cannabidiol to a patient shall not lose eligibility for any federal funding due to such policies.”
Members of the state Medical Cannabidiol Board said during a meeting in September that the DEA exemption application process would be the most effective way to establish protections from losing funds as a result of its existing medical marijuana program.
That said, at another meeting this month, Parker reported that “internally here at the Department we are still working on that brief, and there’s other discussions that we’ll need to have before moving forward on anything.”
For Olsen’s rejected individual petition, the activist said he intends to submit a request for reconsideration by DEA—rather than go straight to a federal appeals court with a lawsuit. And in that request, he plans to stress that the state is weighing moving forward with a petition of its own.
In addition to asserting that federal law preempts state policies on marijuana, DEA also said in their response to Olsen that the agency is bound by international treaty obligations to maintain the plant’s general restrictive federal classification, and that’s part of the reason it denied the petition. But according to Olsen, those treaties only obligate them to place cannabis in certain schedules of the CSA and and do not address the U.S. statute that provides for administrative exemptions.
For what it’s worth, Iowa’s medical cannabis is more limited than those that have been established in many other states. For example, it limits registered patients to a maximum of 4.5 grams of THC per 90-day period. Prior to a reform adopted by the legislature earlier this year, patients could only access cannabis products with up to three percent THC content.
It remains to be seen whether DEA will approach the state’s application differently than Olsen’s, if and when it’s filed. The agency has historically resisted rescheduling requests, let alone full exemptions, for marijuana.
Scientists and veterans sued DEA this year, arguing that the legal basis it has used to justify keeping cannabis in Schedule I is unconstitutional. They asked for a review of its decisions to reject rescheduling petitions across several decades.
A federal appeals court denied a request from DEA to dismiss the lawsuit In August.
Read DEA’s response to the Iowa activists’s marijuana exemption request below:
Marijuana Legalization Opponents Ask Courts To Overturn Voters’ Will In Several States
Unable to sway public opinion and persuade voters to reject marijuana legalization on Election Day, prohibitionists have taken a different new in their efforts to block state-level reform: litigation.
In three states, there are lawsuits pending that seek to overturn voter-approved legalization initiatives. And in one state, cannabis opponents succeeded this year in preventing voters from even having a chance to decide on a reform measure.
While every single drug policy reform initiative that made the ballot passed in red and blue states alike this month, prohibitionists increasingly seem to be giving up the public messaging fight to change voters’ minds and are instead resorting to the courts, challenging reform measures on largely technical matters.
Those legal fights are ongoing in Mississippi, Montana and South Dakota, all of which ultimately legalized cannabis is some form on Election Day.
The Mississippi Supreme Court recently set deadlines for legal filings in a case from the city of Madison challenging the medical cannabis initiative that overwhelmingly passed with 73 percent of the vote. The suit was filed days before the election, with the mayor not weighing in on the merits of the measure but contending that its placement on the ballot was unconstitutional due to statutory signature gathering requirements.
The secretary of state and attorney general condemned the action as a “woefully untimely” lawsuit. The Supreme Court said the filers have until December 7 to submit written arguments and the secretary of state has until December 28 to respond.
Over in Montana, opponents of a voter-approved initiative to legalize cannabis for adult use tried to get the state Supreme Court to invalidate the proposal ahead of the vote, but the justices rejected that request, arguing that they failed to establish the urgency needed to skip the lower court adjudication process. They didn’t rule on the merits, however.
The plaintiffs are now pursuing action in a lower court, arguing that the statutory proposal unlawfully appropriates funds, violating a portion of the state Constitution that prohibits such allocations from being included in a citizen initiative.
In South Dakota, Pennington County Sheriff Kevin Thom and state Highway Patrol Superintendent Col. Rick Miller filed a lawsuit in the state’s Sixth Judicial Circuit Court last week, claiming that the proposal to legalize marijuana that passed with 54 percent of the vote should be invalidated. The suit, which is partly paid for with state funds, says the constitutional amendment violates a 2018 requirement that “no proposed amendment may embrace more than one subject.”
In September, reform opponents successfully bumped an initiative to legalize medical cannabis off of Nebraska’s ballot on what essentially amounts to a technicality.
While the campaign collected enough signatures to qualify the measure, the state Supreme Court shut it down following a legal challenge. It determined that the measure violated the state’s single-subject rule, much to the disappointment of advocates. But activists have already started petitioning to get a simplified version of proposal on the state’s 2022 ballot.
Arizona activists, who succeeded in getting a legalization measure approved on Election Day, had a different experience following a legal challenge in the summer. Opponents there filed suit arguing that the 100-word summary of the initiative misled voters, but that argument did not hold up in court.
Legalization opponents point out that with voter support for marijuana reform increasing, prohibitionists are now left with few options to stop popular reforms.
NORML Deputy Director Paul Armentano said in a blog post that the opposition lawsuits are “cynical, and arguably frivolous, attempts to undermine the democratic process.”
“Legalization opponents have shown time and time again that they cannot succeed in either the court of public opinion or at the ballot box,” he said. “Thus, they are now asking judges to set aside the votes of over a million Americans in a desperate effort to override undisputed election outcomes. Whether or not one supports marijuana legalization, Americans should be outraged at these overtly undemocratic tactics.”
Oregon County Prosecutor Stops Drug Possession Cases Early Following Decriminalization Vote
Prosecutors in an Oregon county will no longer pursue low-level drug possession cases.
The move comes weeks after voters approved a historic initiative decriminalizing all drugs—but also months before it’s due to formally take effect statewide.
In a letter sent to police chiefs on Monday, the Clackamas County District Attorney’s Office said that while it opposes the policy change, officials recognize the will of voters and feel that “having officers investigate and submit cases for a prosecution in the weeks leading up to February 1, which will not lead to any sanction or court supervised treatment, is not the most effective use of criminal justice resources.”
Under the initiative, which passed with 58 percent of the vote, simple drug possession will be treated as a Class E infraction, punishable by a maximum fine of $100 and no jail time. That fine can be waived if an individual shows a court they have completed a substance misuse assessment.
The measure also calls for investments in substance misuse treatment, using tax revenue from legal marijuana sales.
“While we fundamentally disagree with this measure, ceasing to prosecute these matters prior to February 1 is consistent with the will of the voters, which we must respect,” the district attorney’s office said in the email, first reported by Kind Leaf Journal, adding that “misdemeanor [possession of a controlled substance] is still unlawful” until the effective date.
“The decision of our office is not intended not divest local law enforcement officers the ability to conduct lawful investigations, searches and arrests,” the letter states. “Good communication about this significant change is paramount.”
This early discretionary reform action is consistent with how several counties in the state approached cannabis policy after Oregon voters approved an adult-use marijuana legalization initiative in 2014.
“It’s a smart decision to stop arresting and jailing people for personal drug possession before Measure 110 officially goes into effect as Oregon voters have spoken loud and clear that it’s time to start treating drug use as a health issue instead of a criminal one,” Anthony Johnson, a chief petitioner for the decriminalization initiative, told Marijuana Moment.
“There is simply no reason to waste law enforcement resources and our taxpayer dollars on personal drug cases,” he said. “Other district attorneys across Oregon should promptly follow suit and enact the will of the voters.”
The vote in Oregon has also inspired efforts in neighboring Washington State to pursue a drug decriminalization model. While activists considered attempting to put it on the state ballot in 2020, the coronavirus pandemic derailed that plan—and earlier this month, the campaign said they would soon be announcing a sponsor of a reform bill to push for its passage legislatively in the 2021 session starting January.
Meanwhile, New Jersey’s attorney general issued a memo this week directing prosecutors to suspend most marijuana possession cases following voter approval of a statewide legalization ballot measure this month.
Read the full letter to Oregon police chiefs on the decriminalization policy below:
As you are aware, Oregon voters passed Measure 110, which decriminalizes, among other things, possession of up to 1 gram of heroin, 2 grams of methamphetamine and cocaine, 12 grams of psilocybin, 40 user units of LSD 40 pills/capsules containing synthetic opiates.
The measure takes effect on February 1, 2021. At that time, persons found to be in possession of these controlled substances will be referred to local municipal or justice courts and subject to the newly created Class E infraction, which carries a maximum $100 fine. This fee will be waived if the offender provides proof of participation in a substance abuse assessment. There is no requirement that the person engage in treatment.
As the voting public has overwhelmingly passed this measure, effective 11/23/20 the Clackamas County District Attorney’s Office will stop charging new Unlawful Possession of Controlled Substance cases that will otherwise be decriminalized on February 1. It is our belief that having officers investigate and submit cases for a prosecution in the weeks leading up to February 1, which will not lead to any sanction or court supervised treatment, is not the most effective use of criminal justice resources.
While we fundamentally disagree with this measure, ceasing to prosecute these matters prior to February 1 is consistent with the will of the voters, which we must respect.
Investigations where a juvenile is found to possess controlled substances in amounts that will be decriminalized should still be referred to the Juvenile Department so the juvenile can have the opportunity for supervised treatment. There is a juvenile workgroup convening who will eventually offer guidance about what to do with juvenile referrals after February 1.
Until February 1, misdemeanor PCS is still unlawful. The decision of our office is not intended not divest local law enforcement officers the ability to conduct lawful investigations, searches and arrests.
Good communication about this significant change is paramount. If you have any questions or need clarification about this decision, I encourage you or anyone in your agencies to contact me directly. We look forward to our presentation on December 15th where we will discuss additional specifics of M110 and its search and seizure implications.
Chief Deputy District Attorney
Clackamas County DA’s Office