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Cannabis Action Coalition v. The City of Kent

Court of Appeals of Washington, Division 1

March 31, 2014

Cannabis Action Coalition et al., Plaintiffs, Steve Sarich et al., Appellants ,
The City of Kent, Respondent

Reconsideration denied April 14 and April 25, 2014.

Page 1247

Superior Court County: King. Superior Court Cause No: 12-2-19726-1.KNT. Date filed in Superior Court: 10/22/12. Superior Court Judge Signing: Jay V. White.

John Worthington, pro se.

David S. Mann (of Gendler & Mann LLP ); Joseph L. Broadbent ; and Aaron A. Pelley (of Pelley Law PLLC ), for appellants.

Arthur M. " Pat" Fitzpatrick, City Attorney, and Thomas C. Brubaker and David A. Galazin, Assistants, for respondent.

Jared Van Kirk, Sarah A. Dunne, and Mark M. Cooke on behalf of American Civil Liberties Union of Washington Foundation, amicus curiae.

Timothy J. Donaldson, Kathleen J. Haggard, J. Preston Frederickson, and Timothy J. Reynolds on behalf of Washington State Association of Municipal Attorneys, amicus curiae.

AUTHOR: Dwyer, J. We concur: Spearman, A.C.J., Schindler, J.


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[180 Wn.App. 460] ¶ 1 Dwyer, J.

The Washington Constitution grants the governor the power to veto individual sections of a bill. The governor may exercise this power even when doing so changes the meaning or effect of the bill from that which the legislature intended. As a corollary of this power, when the governor's sectional veto alters the intent of the bill and the legislature does not override the veto, the governor's veto message becomes the exclusive statement of legislative intent that speaks directly to the bill as enacted into law.

¶ 2 In this case, the governor vetoed over half of the sections in a 2011 bill amending the Washington State Medical Use of Cannabis Act [1] (MUCA), substantially changing the meaning, intent, and effect of the bill. Although

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Engrossed Second Substitute Senate Bill (ESSSB) 5073 was originally designed to legalize medical marijuana through the creation of a state registry of lawful users, as enacted it provides medical marijuana users with an affirmative defense to criminal prosecution.

¶ 3 Following the governor's sectional veto and the new law's effective date, the city of Kent enacted a zoning ordinance which defined medical marijuana " collective gardens" and prohibited such a use in all zoning districts. By so doing, Kent banned collective gardens.

[180 Wn.App. 461] ¶ 4 An organization and several individuals (collectively the Challengers) brought a declaratory judgment action challenging the ordinance. The Challengers claimed that ESSSB 5073 legalized collective gardens and that Kent was thus without authority to regulate or ban collective gardens. In response, Kent sought an injunction against the individual challengers enjoining them from violating the ordinance. The superior court ruled in favor of Kent, dismissed the Challengers' claims for relief, and granted the relief sought by Kent.

¶ 5 We hold that neither the plain language of the statute nor the governor's intent as expressed in her veto message supports a reading of ESSSB 5073 that legalizes collective gardens. The Kent city council acted within its authority by enacting the ordinance banning collective gardens. Accordingly, the trial court did not err by dismissing the Challengers' actions and granting relief to Kent.


¶ 6 In 2011, the Washington legislature adopted ESSSB 5073, which was intended to amend the MUCA.[2] The bill purported to create a comprehensive regulatory scheme, whereby--with regard to medical marijuana--all patients, physicians, processors, producers, and dispensers would be registered with the state Department of Health. The legislature's intended purpose in amending the statute, as stated in section 101 of the bill, was so that

(a) Qualifying patients and designated providers complying with the terms of this act and registering with the department of health will no longer be subject to arrest or prosecution, other criminal sanctions, or civil consequences based solely on their medical use of cannabis;
[180 Wn.App. 462] (b) Qualifying patients will have access to an adequate, safe, consistent, and secure source of medical quality cannabis; and
(c) Health care professionals may authorize the medical use of cannabis in the manner provided by this act without fear of state criminal or civil sanctions.

ESSSB 5073, § 101, 62d Leg., Reg. Sess. (Wash. 2011) (italics and boldface omitted). The legislature also amended RCW 69.51A.005, the MUCA's preexisting purpose and intent provision, to state, in relevant part:

Qualifying patients with terminal or debilitating medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of cannabis, shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of cannabis, notwithstanding any other provision of law.

ESSSB 5073, § 102.

¶ 7 As drafted by the legislature, ESSSB 5073 established a state-run registry system for qualified patients and providers. Significantly, section 901 of the bill required the state Department of Health, in conjunction with the state Department of Agriculture, to " adopt rules for the creation, implementation, maintenance, and timely upgrading of a secure and confidential registration system." ESSSB 5073, § 901(1). Patients would not be required to register; rather, the registry would be " optional for qualifying patients." ESSSB 5073, § 901(6). On the one hand, if a patient was registered with the Department of Health, he or she would not be subject to prosecution for marijuana-related offenses.[3]

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ESSSB 5073, § 405. On the other hand, if a patient [180 Wn.App. 463] did not register, he or she would be entitled only to an affirmative defense to marijuana-related charges.[4] ESSSB 5073, § 406.

¶ 8 The bill also allowed qualified patients to establish collective gardens for the purpose of growing medical marijuana for personal use.[5] ESSSB 5073, § 403. Furthermore, even though the bill purported to legalize medical marijuana for registered patients and providers, it nevertheless granted authority to municipalities to regulate medical marijuana use within their territorial confines. Section 1102, now codified as RCW 69.51A.140, provides in relevant part:

[180 Wn.App. 464] (1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes. Nothing in this act is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers.

ESSSB 5073, § 1102.

¶ 9 The bill was passed by both houses of the legislature and sent to Governor Gregoire for her signature.

¶ 10 On April 14, 2011, the United States Attorneys for the Eastern and Western Districts of Washington wrote an advisory letter to Governor Gregoire regarding ESSSB 5073. Therein, the district attorneys explained the Department of Justice's position on the bill:

The Washington legislative proposals will create a licensing scheme that permits large-scale marijuana cultivation and distribution. This would authorize conduct

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contrary to federal law and thus, would undermine the federal government's efforts to regulate the possession, manufacturing, and trafficking of controlled substances. ... In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.[6] Potential actions the Department could consider include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA.

¶ 11 After receiving this missive, Governor Gregoire vetoed all sections of the bill which might have subjected state employees to federal charges. The governor vetoed 36 sections [7] [180 Wn.App. 465] of the bill that purported to establish a state registry, including section 901, and including section 101, the legislature's statement of intent. Laws of 2011, ch. 181. The governor left intact those sections of the bill that did not create or were not wholly dependent on the creation of a state registry. Laws of 2011, ch. 181. In her official veto message, Governor Gregoire explained her decision to leave parts of the bill intact:

Today, I have signed sections of Engrossed Second Substitute Bill 5073 that retain the provisions of Initiative 692 and provide additional state law protections. Qualifying patients or their designated providers may grow cannabis for the patient's use or participate in a collective garden without fear of state law criminal prosecutions. Qualifying patients ...

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