Appeals Court Rules Washington’s Medical Cannabis Collectives Are Still Illegal

The Washington State Court of Appeals ruled medical cannabis collective gardens are illegal, posing chilling risks for the hundreds of access points across the state and threatening patients.

The court ruled against Kent, Wash., collective participant Deryck Tsang in his 2012 lawsuit to stop that city’s proposed ban of collective gardens.

The right of patients and caregivers to pool resources and tend medicine collectively has been largely upheld since the state’s adoption of medical cannabis in 1998, but the existence of commercialized dispensaries has been muddled. Some cities, notably Seattle, allowed dispensaries to proliferate. Other towns were quick to complain to federal officials or find ways to close them. The suit brought both dispensary style and smaller group collectives under scrutiny.

Overall, dispensaries have never been condoned or banned by the state.

In 2011, the legislature passed a variety of changes including broader protections, clearer language for collectives and a patient registry. Tsang and his lawyer, David Mann, argued the changes made collective gardens legal for patients and their caregivers at the state level, and that the City of Kent couldn’t ban something legal under state law. Other plaintiffs were dismissed for lack of standing earlier by the state superior court.

The changes, called SB 5073, were clouded by a partial veto by then-governor Christine Gregoire. Gregoire requested the opinion of federal prosecutors asking whether state employees could be charged for participation in regulated cannabis gardens. Prosecutors responded that the federal government could indeed act, and Gov. Gregoire made this the basis for vetoing several sections of the law, including the registry. Some activists speculated this was an intentional move to stymie the medical marijuana industry while allowing Gregoire to cite the threat of federal action.

The court focused on statues where collectives referred to “registered” patients, or “licensed” dispensaries. Because the registry and other sections were vetoed, collective garden or access points don’t fall within the protection statues afforded. In the court’s view, medical cannabis remains a defensible crime, but still a crime.

Steve Sarich of the Cannabis Action Coalition, and one of the dismissed plaintiffs says some lawyers familiar with the case felt the ruling was a “political decision.”

“A plain reading of the law says that collectives are legal. The Appeals Court says they are not.” Sarich insisted in a comment on theweedblog.com “This is not a case that the Supreme Court can ignore.”

Judge Stephen Dwyer stated in the majority ruling: “Instead, [the Medical Use of Cannabis Act] provides a defense to an assertion that state criminal laws were violated. As such, medical marijuana use, including collective gardens, was not legalized by the 2011 amendments to the MUCA.” The ruling goes on to say that the ordinance “prohibits an activity that constitutes an offense under state law,” and the city could enforce it.

A patient’s rights to use, process or grow cannabis themselves remains an affirmative defense after an arrest. A patient’s right to designate a caregiver is unchanged. And a stay issued by the state Supreme Court will keep the Kent dispensary open until they decide whether to hear the case. However, if the Count upholds the ruling, or lets the lower court ruling stand municipalities and counties could take swift action against collective gardens in their jurisdiction, shutting down grows or arresting staff. At that point the only arrest protections are for the amounts voters legalized in 2012.

The legislature came very close to adopting changes to both recreational and medical cannabis laws earlier this year but fell short of the super-majorities needed to change a recently passed initiative. A patient registry was a hot topic again during this year’s legislative session. Some groups point out how common it is for federal prosecutors to utilize registries as evidence of wrongdoing. State lawmakers have insisted similar registries used to track pharmaceutical prescriptions and are a necessary tool for accountability. A compromise of a non-mandatory registry was suggested but rejected.

Washington could still address medical marijuana this year if Governor Jay Inslee calls a special session. If lawmakers keep trying to tie it into the emerging recreational markets, they’ll have to muster more support. However, beginning in 2015 they’ll need only a simple majority meaning they’ll need less consensus among legislators. The governor is likely to let courts, local governments, and perhaps federal agents do the heavy lifting on the issue for the rest of the year.

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