Pot activists and state regulators were understandably disappointed when Washington State attorney general Bob Ferguson released a formal opinion January 16 concluding that Initiative 502 does not preempt local governments from regulating or banning marijuana businesses within their jurisdiction. Attorney general opinions are not legally binding, but they generally guide state and local agencies in implementing law.
"If some local governments impose bans, it will impact public safety by allowing the current illicit market to continue," fretted Washington State Liquor Control Board chair Sharon Foster in response. Dozens of Washington municipalities already have pot bans or moratoriums in place, including unincorporated Pierce County. (It is nearly inevitable that pot entrepreneurs will try to challenge those bans in court, regardless of the AG's opinion.) Letting those bans stand and new ones be approved by local governments, Foster warned, "will also reduce the state's expectations for revenue generated from the legal system we are putting in place."
Most likely. But while Ferguson's narrow reading may run counter to the spirit of I-502, the pro-pot crowd needs to take a big hit, chill out, and try to focus on the bigger picture. Ferguson's opinion isn't as much anti-pot as it is pro-local—and that's a line of legal thinking that cities like Seattle will welcome as they attempt to enact an ever-broader local legislative agenda in the face of inaction and obstruction in Olympia.
"Under Washington law, there is a strong presumption against finding that state law preempts local ordinances," Ferguson's formal opinion determines. "Initiative 502... includes no clear indication that it was intended to preempt local authority to regulate such businesses. We therefore conclude that I-502 left in place the normal powers of local governments to regulate within their jurisdictions."
That "strong presumption" in favor of local authority is a precedent that Seattle's attorneys will no doubt cite in the face of inevitable lawsuits challenging our city's authority to regulate the minimum wage, enact universal preschool, or even tax the rich. (Some might be surprised to learn that there is no state statute explicitly prohibiting cities from imposing an income tax—thus a locally approved income tax combined with a presumption against preemption may be the key to getting the underlying constitutional question back before the state supreme court.) So while we may not like this particular application of the doctrine, we would be better off in the long run embracing it in principle rather than challenging it in court.
Instead, pot activists should focus on lobbying legislators to pass HB 2322, a bill introduced by Representative David Sawyer (D-Tacoma), which would enact explicit language imposing the preemption provisions that I-502's authors say were always their intent.