Judge agrees with Attorney General’s opinion, upholds I-502 against challenge

For the Reporter

The Attorney General’s Office today presented arguments in MMH, LLC v. Fife in Pierce County Superior Court before Judge Culpepper. Solicitor General Noah Purcell gave oral arguments on behalf of the AGO.

Culpepper ruled today following the hearing that nothing in Initiative 502 overrides local governments’ preexisting authority to regulate local businesses, including marijuana businesses, through zoning or otherwise.

Because the court agreed with the AGO opinion that I-502 did not require local governments to allow marijuana businesses, the court never had to address whether federal law preempts I-502. This allows I-502 to continue to be implemented.

“My office aggressively worked to uphold the will of the voters,” said Attorney General Bob Ferguson. “Today’s ruling affirms the opinion of my office earlier this year and allows Initiative 502 to continue to be implemented in Washington state. As I have said from the beginning, the drafters of Initiative 502 could have required local jurisdictions to allow the sale of recreational marijuana. It could have been done in a single sentence, but it was not. Now it is up to the Legislature to decide whether to require local governments to allow for the sale of marijuana.”

The AGO intervened in this case to uphold the will of the voters, defend I-502 and ensure its proper interpretation. The AGO did not represent the plaintiffs or the City of Fife. Rather, the AGO was an additional party to the lawsuit.

The American Civil Liberties Union also intervened to represent several potential marijuana businesses in other jurisdictions.

The plaintiffs in this case sought to open marijuana businesses in Fife despite the city’s ban on such businesses. A formal opinion released by the AGO in January 2014 concluded that, as drafted, I-502 does not prevent cities and counties from banning marijuana businesses.

The city argued that it is not required to allow such businesses under I-502. The city also argued that if I-502 does require it to allow such businesses, then I-502 is preempted by federal law. “Federal preemption” is when federal law is determined to override state law.

The AGO presented two arguments today:

1. Nothing in Initiative 502 overrides the strong deference under state law given to local governments to regulate local businesses, including marijuana businesses, through zoning or otherwise. The City of Fife agreed with the AGO on this issue.

2. Even if I-502 did require local governments to allow marijuana businesses, it would not be preempted by federal law. The plaintiffs and ACLU agreed with the AGO on this issue.