A legal analysis by a prominent University of Washington professor argues that Governor Chris Gregoire is using faulty logic to justify her plans to veto a medical-marijuana bill. Despite Gregoire's claims that state employees could face prosecution (I’ve reported before on how Gregoire created this controversy herself), attorney Hugh Spitzer says that would be legally unprecedented and runs contrary to examples we already have in Washington State.
Compare marijuana to guns, says Spitzer, a UW affiliate professor and well-regarded attorney on matters of state and federal interplay. Washington State law requires state employees to issue licenses for concealed pistols, which in some cases are a federal crime for the person who carries the pistol, but not for the state employee. “The reality that a licensee maybe be breaking Federal law does not make the state employee issuing the license complicit in the licensee’s federal crime,” he writes in a letter sent to the governor today.
The same reality is true for state employees who would issue licenses to medical marijuana dispensaries, as would be required if by the bill on Gregoire's desk.
The gun comparison is only one reason Spitzer slams Gregoire’s logic for a veto (full letter in this .pdf). Citing state and federal cases, Spitzer notes: (1) No state employee has ever been charged for regulating marijuana in states with medical marijuana laws; (2) the federal government hasn't prosecuted state employees for performing any ministerial duty, preferring historically to seek injunctions against a state government; and (3) issuing a license is not a violation of the Controlled Substances Act.
The controversial portions of bill, sponsored by Seattle state senator Jeanne Kohl-Welles (D-36), would rein in a wild marijuana market that has irritated law enforcement.
“There is no legitimate reason that Washington State should not proceed with its legislatively-approved effort to improve public safety and public order in the connection with the safe access to medical marijuana for the sick and dying,” Spitzer writes. He says the governor should sign the bill as passed by lawmakers this month.
Scott Whiteaker, a spokesman for the governor, says his office has received a copy of Spitzer’s analysis but has not formulated a response. He maintains that Gregoire is not backing off, saying “she is working with advocates and legislators to determine what parts of the bill she can save.”
“I think she is old-generation on this topic in general,” says State Representative Roger Goodman (D-45), who is also an attorney. “We need leadership. The leadership is not coming from the other Washington. We need this Washington to lead on this and many other issues. We do lead on other issue and now we just need to lead on this one."
Goodman believes the state maintains authority to regulate the marijuana market. “As far as this state moving ahead there are no obstacles. We have been given clear guidance from the Obama Administration,” he says, citing a 2009 memo that says feds won’t prosecute those in compliance with state medical-marijuana laws.
“It’s weird that this particular issue has been raised in this particular fashion,” says Spitzer, reached by phone, commenting on the governor’s unsubstantiated claim that employees would be at risk. “What happens and what has happened by and large in the history of this country, except for the Civil War, is that if a state is acting in a fashion that is contrary to federal law or preempted by federal law, then the Department of Justice files a lawsuit in federal court and asks for an injunction or an order saying that a state must do something or stop doing something.”