In Our View: Voters’ Will, Meet the Law

Ferguson's ruling on pot businesses shows detail key in crafting measures



More than anything, Thursday’s ruling from state Attorney General Bob Ferguson confirmed an immutable fact of modern American life: The law is messy.

What might appear to be a cut-and-dried legal question, or a clear vote of the people, or a simple contract, often can become muddled when faced with fine-toothed legal scrutiny. That’s how it should be. In a nation of differing opinions and competing interests, the rule of law must remain sacrosanct. People can complain all they want — and they do — about wily lawyers, but we wouldn’t need lawyers if the law was defined by the whims and predilections of dictators and despots.

With that in mind, the legalization of recreational marijuana use in Washington, which was passed by voters in November 2012, apparently is more complicated than the general public realized. Ferguson’s office has ruled that local jurisdictions retain the right to effectively shut out licensed marijuana businesses. The opinion hinged on the fact that Initiative 502 did not include language that would preclude local jurisdictions from preempting the state law.

“Drafters in a single sentence could have addressed this,” Ferguson said. He added that I-502 “includes no clear indication that it was intended to preempt local authority to regulate such businesses.”

Oh, for the want of a single sentence. Instead, supporters now find themselves facing an uphill battle in many parts of Washington. Clark County commissioners have indicated they might follow the lead of Pierce County and not accept applications for marijuana growers, processors or retailers until the drug is legalized at the federal level, and several local cities have placed moratoriums on such businesses.

While we can argue the merits of allowing marijuana-related businesses as approved by voters (The Columbian editorially supported passage of I-502 and has argued in favor of the establishment of such businesses), now is not the time to rehash such debates. Instead, it is prudent to consider the fascinating legal wrangling inherent in Ferguson’s judgment.

“They got it right,” said Hugh Spitzer, a professor at the University of Washington School of Law. “The courts require pretty clear exemptions. The preemption language could have been written better by the people who wrote this initiative. I think on balance they got it right, but it’s not so clear that I would tell you a court couldn’t rule the other way.”

Which brings us to the next step in the convoluted-but-necessary legal process. The issue likely will end up in court, or the Legislature could pass a bill that would clarify the law and supersede local jurisdictions. Meanwhile, there are questions about whether the opinion from the attorney general could be applied to other initiatives passed by voters. For example, in 2012, the Legislature approved gay marriage, and voters then reaffirmed that by rejecting an initiative attempt to overturn the law.

Spitzer explained that the marijuana law falls under the police duties of the state — the right to tell people what they can and cannot do — while marriage is governed more by contract law. Fellow UW professor Kate O’Neill said, “The regulatory systems that have traditionally applied to marriage and similar personal rights are quite different from those applicable to the operation of businesses.”

For now, local leaders might be buoyed by Ferguson’s opinion on the matter and prevent marijuana-related businesses, and it should be noted that legalization was rejected by a narrow majority of Clark County voters. But it’s only a matter of time before the issue lands in court for another dive into the wonderfully messy trough that is the law.