Ecotopia Redux: Feds “Warn” Washington on Medical Marijuana Law

by on April 15, 2011

Governor Gregoire fired back at the Obama administration today, saying, “They can take our medical marijuana when they pry it from our cold dead hands,” and putting the Washington National Guard on alert. The Governor gave her press conference in front of a hastily constructed flag that read “The Soviet of Washington.”

That’s what I’d like to tell you happened anyway. The above was not meant as a factual statement. I don’t think anyone believes we elected that kind of governor.

Instead Governor Gregoire has announced that she will veto the medical marijuana bill that passed both House and Senate. “In light of the Department of Justice’s guidance, it is clear that I cannot sign a bill that authorizes our state employees to license marijuana dispensaries when the department would prosecute those involved,” Gregoire said.

Gregoire had asked for guidance from federal authorities, and got an answer from U.S. Attorneys Jenny Durkan (Washington’s Western District) and Michael Ormsby (Eastern District), which noted that the bill:

…would authorize conduct contrary to federal law and thus, would undermine the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law.

Gregoire’s veto is an outsized reaction to a fairly low-key response. The feds “could consider” remedies, and state employees “would not be immune” from liability. As The Stranger‘s Dominic Holden argues, the precedent here is New Mexico, whose Department of Health has been overseeing the distribution of medical marijuana for the past three years: “Feds have never prosecuted and state employees in New Mexico running the medical marijuana program,” says Holden.

Governor Gregoire

As I noted earlier, Gregoire was uncomfortable with the bill’s passage, even though its intent is simply to affirm an earlier citizen’s initiative allowing medical marijuana, and lay out clear regulations for marijuana’s cultivation and distribution. (Previously it was legal for a doctor to prescribe medical marijuana for you, and for a patient to possess a certain amount, but how you got it, legally, remained a murky legal affair, depending in large part on the whim of local law enforcement.)

The Seattle Times headline says “Feds threaten a crackdown” but it’s hard to see a crackdown in the federal position, which specifically mentions targeting for-profit marijuana sales, organized crime trafficking, and fraudulent doctors’ prescriptions. A non-profit dispensary not run by the Medellin cartel and working with ethical doctors would seem to have little to fear. Per the Times:

Sen. Jeanne Kohl-Welles, D-Seattle, the prime sponsor of the bill, said she was encouraged that the measure could still be passed after talking with Gregoire on Thursday evening. She said legislative staffers were working on alternatives. “We’re looking at a brand new approach,” she said, without elaborating.

8 thoughts on “Ecotopia Redux: Feds “Warn” Washington on Medical Marijuana Law

  1. It’s a fairly easy fix, really. As soon as the parasites in Congress realize that we,. the silent majority, will no longer be silent, we will see a change.
    We have to email them, call them and remind them how they get to keep their jobs. The drug war is basically what it has always been, a thinly veiled attack on civil rights and liberties, cause we Americans roll over like dogs on a rug if the cops use the word “drugs”.

  2. I’m starting to get used to the Democrats I helped elect NOT being who I thought they were. Bravery?? Nope just bravado on the campaign trail.

  3. The medical cannabis bill that passed the Washington State House of Representatives Monday is now a ghost of its former self, and is set to dramatically weaken our state’s voter-approved medical cannabis law. For some folks, anything one can paint as a victory to donors helps their bottom line, and for some, adding myriad restrictions to our law is a necessary evil in a long-term political and public opinion strategy. But please be informed that the bill as amended in the state house is, on balance, shockingly horrible for medical cannabis patients in our state.

    On the arguably positive side, SB 5073 implements a very limited and licensed dispensary and grower network in Washington State. It promises to provide limited protections to patients who register with the government in a future state-run database run by our Department of Health, whose current director has a history of refusing to implement medical cannabis legislation and of surreptitiously supplanting rules created in the public rule-making process with the will of our governor. It provides an affirmative defense to patients visiting from out of state. It also defines “useable cannabis” and “plant” much more favorably.

    THE CURRENT BILL IS BAD FOR DOCTORS:

    * Requires an authorizing health care professional to be the primary care provider or a “specialist” — which likely requires specialty certification, which does not exist currently for medical cannabis — in order to authorize the medical use of cannabis. Section 301.
    * Places ten new requirements on health care professionals who recommend medical cannabis. Disallows health care professionals from running “medical cannabis only” clinics, or from making any statement on the medical use of cannabis in any advertisement for their practice. Violations would be findings of unprofessional conduct, and the punishments may include per-violation fines of up to $5,000 and license revocation under RCW 18.130.160. Most doctors in our state that currently authorize medical cannabis risk having their livelihood destroyed in doing so. Section 301.

    THE CURRENT BILL IS BAD FOR PATIENTS:

    * Protections from search and arrest were gutted on the house floor Monday. Patients will not be safe from police terror unless they register in a future government database, which we believe may never be implemented by our Department of Health. Section 402.
    * Invalidates all current “lifetime” authorizations. Section 201(32)(b)(i).
    * Places additional requirements and limits on “designated provider” documentation. Section 201(32)(b)(iii).
    * Codifies in law that state-funded housing programs may disallow the medical use of cannabis. Section 410.
    * Disavows the medical necessity common law defense. Washington appellate courts have a “division split” on the medical necessity common law defense, and the bill specifically removes its underlying support for the defense as we wait to see if our supreme court will take up the appeal. Section 102(3).
    * Denies the medical cannabis affirmative defense to members of our military. Section 501(5).
    * Expressly allows DOC or any other correctional authority to disallow the medical use of cannabis. Sections 102(4), 201(26)(b), 803(3), 1105.
    * Expressly allows Washington State hotels and motels to refuse to accommodate medical cannabis patients. Section 501(4).
    * Makes “tougher” the existing restrictions against driving “under the influence” of medical cannabis. Section 501(8).
    * Provides immunity to law enforcement and all other state actors who violate the privacy of the future state-run registry. Section 1101.

    THE CURRENT BILL IS BAD FOR DISPENSARIES:

    * Removes the affirmative defense and legal underpinning for all currently operating dispensaries. Section 201(6)(d).
    * Requires currently operating dispensaries to notify local authorities of their intent to apply for a future license if they are to be afforded an affirmative defense in court. This notification — or admission of criminal behavior — will likely lead to threats of closure and raids from local authorities. Section 1201.
    * Places an “advertising ban” on dispensaries that forbids speech which “promotes or tends to promote the use or abuse of cannabis.” Specifically states that any visual or artistic representation of cannabis is illegal. Each violation is punishable by fines of up to $1,000. Section 802.
    * Allows local jurisdictions to adopt zoning, “health and safety,” licensing, and tax requirements on dispensaries. Section 1102.

    READ THE BILL:

    http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Amendments/House/5073-S2.E%20AMH%20ENGR%20H2509.E.pdf

  4. Sorry, Gregoire.

    You can’t have it both ways…. meaning you can’t say you represent the people who put you there, while making up chickenpoop excuses to continue receiving money from the people who didn’t. See you in the soup line after the next election!

  5. It is going to take elected officials with some courage to stand up to the federal government and say “The prohibition against marijuana is wrong and needs to be repealed. The statements you make as fact are nothing but scare tactics constructed of distorted information and out and out lies.” Ms. Gregoire has an opportunity here to show true leadership and let the corperate interests behind the efforts to keep medical marijuana from patients that benefit from it know that it is the people who will determine the path this country will take. Not the profit at all costs mentality currently driving us toward total collapse of the economy and our society.

  6. HELP NEEDED! TAKE ACTION!

    Time is short, and the stakes are high. We need as many people as possible to contact members of the state senate and urge them to oppose concurrence on SB 5073 and seek a conference committee. Please go to http://www.cdc.coop/2011_legislation send a short email to this effect:

    “Dear senators: Please vote no on concurring to the house changes for SB 5073, and seek a conference committee with the house. The current language is unacceptable and will dramatically weaken our state’s medical cannabis law.”

    Senate phone numbers: http://apps.leg.wa.gov/rosters/Members.aspx?Chamber=S

    WHY WE TAKE THIS POSITION

    Our decision is based on the following logic and understandings. We have two options at this point: senate concurrence or non-concurrence. If the senate concurs, the bill goes to the governor, who can take one of four actions: veto, sectional veto, pass, or ignore (in which case it passes). If the governor chooses a sectional veto, she will likely make a small mess of the bill, which will give legislators reason to pass a correcting “trailer bill” in the special session. The same is true if she vetoes it wholly: we may have another shot in the special session. If she passes it, the current language becomes law.

    If the senate does not concur, a conference committee may be called. This is not certain, but seems likely to us. At that point, six legislators have authority over the final language of the bill. The language that comes out of conference committee could actually be worse, but we can work to affect that process, to get arrest protection for unregistered patients back in. The language that comes out of the conference committee must be approved by both houses, which is also not guaranteed. After that, it goes to the governor, and we are left in the same position as if the senate had concurred: Gregoire may sectional veto or veto entirely.

    The non-concurrence path poses greater risk that the bill will die before it reaches the governor. It also leaves us multiple chances to “roll the dice” and try to reach a more comfortable position before we gamble on the “big game” at the governor’s desk. We believe we have a real opportunity to get our preferred language back in conference committee. If the language is even worse, we have opportunities to kill it at the house, senate or governor’s desk. If the language is better, we risk the house or senate voting against it, in which case we are done for the year — and more realistically, we are done until 2013.

    The risk of a no vote in the house or senate seems acceptable to us. When presented with final, unmodifiable language, both houses will be forced to make a decision: either one supports medical cannabis, or one does not support medical cannabis. We expect the house vote to be more difficult, perhaps along party lines with a few democrats like Hurst voting no. On a side note, and not informing our decision, we like the idea of forcing legislators like Hurst to show their “true colors” on a recorded vote.

    Also on the non-concurrence path, we risk the conference committee “watering down” the legislation, specifically in regard to state licensing of dispensaries, which is one of the most “powerful” parts of the bill. Having a state-licensed, legal and entrenched medical cannabis business system is a very positive development in our ultimate challenge to this federally-inspired war against our people. That said, we believe that our existing medical cannabis law is, for all of its flaws, functional. Patients can access authorizing health care professionals and they can access medical cannabis with minimal issues. There is a technical problem in that no dispensary is legal, but that is not a practical problem. Nearly all of them have an affirmative defense to cannabis charges currently, and while some of the less thoughtful or intelligent have been convicted, many more have been acquitted by juries of their peers. In short, the current affirmative defense — gone if the senate concurs — works to effectively allow dispensaries.

    The main problem with our law, in our opinion, has always been law enforcement culture in our state. We do not think this legislation will change that. With or without this bill, we will need to battle numerous local police agencies in the future and demand their respect for patients and our voter-approved law. The fear of federal raids is similar: the feds may execute DEA raids if this bill does not pass, but in either case we fully expect and are planning for that contingency. More likely, the feds will continue to execute raids in our state through the “black hand” of the multijurisdictional drug task forces and the local law enforcement they employ. This is the reality now, and we do not see this bill changing that. That change will come, we believe, through our current tactic of engaging in battle with law enforcement agencies who go after medical cannabis patients, convincing patients and providers to refuse plea bargains, providing court support and costing local jurisdictions money and face when they engage in such behavior.

    If this bill does not get to the governor’s desk, we risk a public perception that the feds threatened us and we became paralyzed, refusing to do anything. This could negatively affect our future legislative prospects, and it could also negatively affect the prospects for a future cannabis initiative — if we don’t stand up to the feds now, voters may be unwilling to stand up to the feds at the ballot box. This is an acceptable risk to us, and we also think the opposite may be true: if the public perceives that our legislature caved to the federal government, voters may be willing to take matters into their own hands. Indeed this is the usual logic behind successful initiative campaigns: the people must act because the legislature failed to act. And public perception seems more malleable to us than the future codified law will be if the senate concurs on SB 5073.

    Finally, there is the issue of “reigning in” on the so-called “green rush” that has sprouted in our state in the last two years. Bolder dispensary operators, bolder advertising and the “lowest common denominator” have created some degree of backlash against medical cannabis in our state. Allowing it to continue unchecked risks a much greater, more general backlash, which could dramatically affect our law in the future, as well as prospects for a future cannabis initiative. This is a concern that we share. At the same time, the “green rush” seems to be slowing somewhat — dispensaries do sprout up, but they also routinely fail. Three years ago it was indeed easy to make a buck in the medical cannabis industry, but the same is not true today. The price of cannabis has dropped dramatically in our state and medical cannabis businesses are more and more like any other business: they must be decently-run, operate on small profit margins, and provide a level of service, products and safety that patients with plenty of options would voluntarily choose. Fools factoring robbery as a cost of doing business, lying charlatans focused on profits, and wolves looking to diversify their nefarious businesses are finding the industry less hospitable these days, and we think that will continue. The advertising concerns remain for us, and we think something will need to be done to convince dispensaries and newspapers like the Little Nickel to tone it down for the greater good.

    For these reasons we are seeking a conference committee between the senate and the house, and requesting a no vote on senate concurrence with SB 5073. Our board of directors takes this position with deeply-held, humble intent. We remain in support of the bill with amendments.