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Cannabis Action Coalition v. City of Kent

Supreme Court of Washington, En Banc

May 21, 2015

Cannabis Action Coalition et al., Plaintiffs,
The City of Kent et al., Respondents Steve Sarich et al., Petitioners,

Argued February 24, 2015

Appeal from King County Superior Court. 12-2-19726-1. Honorable Jay V. White.

David S. Mann (of Gendler & Mann LLP ), for petitioners.

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

Noah G. Purcell, Managing Assistant Attorney General, and Jeffrey T. Even, Assistant Attorney General, on behalf of the State of Washington, amicus curiae.

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

AUTHOR: Justice Debra L. Stephens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Sheryl Godron McCloud, Justice Mary I. Yu. AUTHOR: Justice Steven C. González.


Debra L. Stephens, J.

Page 152

[183 Wn.2d 221] ¶ 1 Under the Washington State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, qualifying [183 Wn.2d 222] patients may participate in " collective gardens" to pool resources and grow medical marijuana for their own use. RCW 69.51A.085(1). [1] However, MUCA grants cities and towns the power to zone the " production, processing, or dispensing" of medical marijuana. RCW 69.51A.140(1). Given this state law, the city of Kent enacted a zoning ordinance that prohibits collective gardens within its city limits. City of Kent Ordinance 4036 (June 5, 2012) (codified at Kent City Code 15.02.074, 15.08.290) (Ordinance).

¶ 2 This case requires us to determine whether MUCA preempts the Ordinance. We hold it does not and affirm the Court of Appeals. The Ordinance is a valid exercise of the city of Kent's zoning authority recognized in RCW 69.51A.140(1) because the Ordinance merely regulates land use activity.



¶ 3 In 1971, the Washington Legislature enacted the Uniform Controlled Substances Act, chapter 69.50 RCW. That statute made it a crime to manufacture, deliver, and possess marijuana. RCW 69.50.401-.445. The same activities are criminalized under federal law. 21 U.S.C. ch. 13. But Washington has had subsequent legal developments concerning medical marijuana and recreational marijuana.

Page 153

In 1998, the people adopted Initiative 692, Laws Of 1999, ch. 2, to provide protections for medical marijuana use. And in 2012, the people adopted Initiative 502, Laws of 2013, ch. 3, to create a system for the licensed distribution of recreational marijuana and to legalize the possession of marijuana [183 Wn.2d 223] in certain circumstances. See RCW 69.50.4013(3). Initiative 502 is not relevant to this case because no party seeks to produce marijuana pursuant to a recreational marijuana producer's license. See RCW 69.50.325(1). This case concerns Washington's medical marijuana system.

¶ 4 Washington's medical marijuana system is codified as MUCA, chapter 69.51A RCW. Initially, the statute provided qualifying medical marijuana users an affirmative defense to criminal prosecutions. Former RCW 69.51A.040(2)-(3) (2010). That defense was satisfied upon compliance with the terms of the chapter, such as meeting the definition of being a " qualifying patient," having " valid documentation" from a " health care professional," having the appropriate quantity of marijuana, and satisfying other conditions. Id.; former RCW 69.51A.010(2) (2010).

¶ 5 The legislature amended MUCA in 2011. See Laws of 2011, ch. 181. But the bill the legislature passed differs significantly from the enacted law because Governor Gregoire vetoed 36 of the bill's 58 sections. See id. at 1374-76 (governor's veto message). As passed by the legislature, the bill would have created a comprehensive regulatory scheme under which all patients, physicians, processors, producers, and dispensers could be securely and confidentially registered in a database maintained by the Washington Department of Health. See id. § 901 (later vetoed). Registration would have been optional. Id. § 901(6) (later vetoed). If a patient registered, the patient would not be subject to state prosecution or civil consequences for marijuana-related offenses. Id. § 401 (codified at RCW 69.51A.040). But if the patient did not register, the patient would be entitled to only an affirmative defense to marijuana prosecutions. Id. § 402 (codified at RCW 69.51A.043).

¶ 6 In addition to the registration system, the bill authorized collective gardens and clarified that local jurisdictions retain their zoning power over medical marijuana activities. Under the bill, qualifying patients could establish collective gardens for the purpose of growing medical marijuana [183 Wn.2d 224] for personal use. Id. § 403 (codified at RCW 69.51A.085). Participating in a collective garden involves " sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use," such as by providing real estate, equipment, supplies, or labor for the collective garden. Id. § 403(2) (codified at RCW 69.51A.085(2)). Last, the bill clarified that local governments retain authority to regulate the production, ...

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