Getting a Second Opinion

Fifteen State House Representatives, led by Roger Goodman, have sent Attorney General Rob McKenna a letter asking him to weigh in with his opinion on the recent furor over Governor Gregoire’s partial veto of the medical marijuana bill. The legislators would like to know McKenna’s official opinion on the following three things:

1) Where the federal Controlled Substances Act prohibits state activities that create a “positive conflict” between state and federal laws (see 21 U.S.C. Section 903), would the exercise of our state’s (and its instrumentalities’) regulatory, licensing and zoning powers related to cannabis cultivation, processing and dispensing, as set forth in SB 5073, create a “positive conflict” with federal law, even where no state employee would be required to engage in specific activities that are prohibited by the Controlled Substances Act?

2) What is the likelihood, in consideration of current federal policy respecting individuals whose actions are “in clear and unambiguous compliance with existing state laws,” (see so-called “Holder Memorandum” of 10/29/09) that Washington state employees would be subject to federal criminal liability for activities to implement the cannabis cultivation, processing and dispensing system as set forth in SB 5073, where no such comparable federal criminal liability has ever been attached to any state employees in the past and where state employees’ activities in this case would fall far short of “aiding and abetting” the violation of federal law?

3) How enforceable is Washington’s medical cannabis law in general and what is the permissible extent of Washington’ police power to protect the health, welfare and safety of the people in the face of the absolute federal prohibition of cannabis?

The first two parts of this letter focus on the main excuse Governor Gregoire has used to justify her partial veto. She continues to claim – despite UW law professor Hugh Spitzer’s dismissals – that state employees are at risk of arrest for regulating the industry.

It’s been brought up several times that other states regulate marijuana production distribution without any problem. This is far from secret. In fact, in a recent episode of CNBC’s “Marijuana Inc” series, you can see one of those state employees at work. Go to the 10:30 mark of the following video to see a Colorado state employee – a former narcotics officer, no less – doing exactly what Christine Gregoire says her state employees will get arrested if they do.

In response to the growing awareness that Gregoire’s stated reasons for the partial veto are fiction, she’s now claiming that the policy under Obama has changed recently. But as Dominic Holden points out, Western Washington’s U.S. Attorney Jenny Durkan disputes that. The Obama Administration won’t go after folks who are in compliance with state law. Goodman’s letter to McKenna is an attempt to have the Attorney General weigh in to provide some clarity in this mess.

UPDATE: Dominic Holden has more analysis at Slog.