Cannabis Action Coal. v. City of Kent

• Decision Date: 21 May 2015
• Docket Number: No. 90204–6.,90204–6.
• Citation: 183 Wash.2d 219,351 P.3d 151
• Court: Washington Supreme Court
• Parties: CANNABIS ACTION COALITION, Arthur West, David Hallin, Plaintiffs, Steve Sarich, John Worthington, and Deryck Tsang, Petitioners, v. CITY OF KENT, a local municipal corporation, Kent City Council, Kent Mayor, State of Washington, Respondents.

183 Wash.2d 219

351 P.3d 151

CANNABIS ACTION COALITION, Arthur West, David Hallin, PlaintiffsSteve Sarich, John Worthington, and Deryck Tsang, Petitioners

v.CITY OF KENT, a local municipal corporation, Kent City Council, Kent Mayor, State of Washington, Respondents.

No. 90204–6.

Supreme Court of Washington, En Banc.

Argued Feb. 24, 2015.

Decided May 21, 2015.

David Scott Mann, Gendler & Mann LLP, Seattle, WA, for Petitioners.

Thomas C. Brubaker, Arthur Merritt Fitzpatrick, David Andrew Galazin, City of Kent Legal Department, Kent, WA, for Respondents.

Noah Guzzo Purcell, Washington Attorney General's Office, Jeffrey Todd Even, Office of the Attorney General, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, amicus counsel for State of Washington.

Sarah A. Dunne, Attorney at Law, Mark Muzzey Cooke, ACLU of Washington, Jared Van Kirk, Garvey Schubert Barer, Seattle, WA, amicus counsel for Aclu.

David Scott Mann, Gendler & Mann LLP, Seattle, WA, for other parties.

Opinion

STEPHENS, J.

¶ 1 Under the Washington State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, qualifying 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.

I. BACKGROUND

A

¶ 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.

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 mariuana and to legalize the possession of marijuana 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. SeeLaws 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 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, processing, or dispensing of medical marijuana through zoning, business licensing, health and safety requirements, and business taxes. Id. § 1102 (codified at RCW 69.51A.140 ).

¶ 7 After the legislature passed the bill and sent it to Governor Gregoire for her approval, the United States attorneys for the Eastern and Western Districts of Washington wrote the governor a letter. It warned that the legislature's bill authorized conduct illegal under federal law, noted that Washington State employees who administered the registry would not be immune from federal prosecution, and threatened such prosecution. Cannabis Action Coal. v. City of Kent, 180 Wash.App. 455, 464, 322 P.3d 1246 (2014). Governor Gregoire vetoed all of the bill's sections that could have subjected state employees to federal charges, most importantly the establishment of the bill's centerpiece, the registration system. She did not veto the provision concerning collective gardens, RCW 69.51A.085, or the provision concerning local zoning requirements, RCW 69.51A.140. She explained her decision in an official veto message. Laws of 2011, ch. 181, at 1374–76.

¶ 8 Against this state law backdrop, in 2012 the city of Kent enacted the Ordinance at issue. Styled as a zoning ordinance, it prohibits collective gardens (largely as defined in RCW 69.51A.085 ) in every zoning district within the city and deems any violation a nuisance per se that shall be abated by the city attorney. Kent City Code 15.02.074, 15.08.290. The city may enforce the Ordinance with criminal and civil sanctions. Id. ch. 1.04.

B

¶ 9 The Cannabis Action Coalition, Steve Sarich, Arthur West, John Worthington, and Deryck Tsang (collectively plaintiffs) sued the city of Kent, its city council, and its mayor Suzette Cook (collectively Kent) in King County Superior Court, seeking to have the Ordinance declared preempted and invalid. On competing motions for summary judgment, the superior court ruled in Kent's favor and upheld the Ordinance. It also dismissed the claims of Sarich, West, and Worthington for lack of standing because these plaintiffs did not reside or operate a collective garden in the city of Kent. The court determined that Tsang had standing because he currently participates in a collective garden in the city of Kent's limits. The court enjoined all plaintiffs from violating the Ordinance.

¶ 10 Sarich, Worthington, and Tsang appealed. Recognizing that Tsang's standing to appeal was never in doubt, the Court of Appeals held that Sarich and Worthington also had standing to appeal because they were burdened by the trial court's injunction prohibiting them from violating the Ordinance. Cannabis Action Coalition, 180 Wash.App. at 469 n. 11, 322 P.3d 1246. On the merits, the Court of Appeals affirmed the superior court and held state law does not preempt the Ordinance. Id. at 469–83, 322 P.3d 1246. We granted the plaintiffs' petitions for review. Sarich v. City of Kent, 181 Wash.2d 1022, 336 P.3d 1165 (2014).

II. ANALYSIS

A

¶ 11 The Washington constitution grants every local government the power to “make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” Wash . Const . art. XI, § 11. This court has established that an ordinance is valid under this provision “unless: (1) the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable exercise of the [local government's] police power; or (3) the subject matter of the Ordinance is not local.” Weden v. San Juan County, 135 Wash.2d 678, 692–93, 958 P.2d 273 (1998). Under this test, “a heavy burden rests upon the party challenging [the ordinance's] constitutionality” and “ ‘[e]very presumption will be in favor of constitutionality.’ ” HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 477, 61 P.3d 1141 (2003) (quoting Lenci v. City of Seattle, 63 Wash.2d 664, 668, 388 P.2d 926 (1964) ). “Whether an ordinance is reasonable, local, or conflicts with a general law for purposes of article XI, section 11 is purely a question of law subject to de novo review.” Weden, 135 Wash.2d at 693, 958 P.2d 273.

¶ 12 The plaintiffs do not contend that the Ordinance is unreasonable or nonlocal. They contend only that MUCA is a general law in conflict with the Ordinance—i.e., that MUCA preempts the Ordinance. A state statute may preempt a local ordinance in two ways: it will “preempt[ ] an ordinance on the same subject if the statute occupies the field, leaving no room for concurrent jurisdiction, or if a conflict exists such that the statute and the ordinance may not be harmonized.” Lawson v. City of Pasco, 168 Wash.2d 675, 679, 230 P.3d 1038 (2010).

B

¶ 13 A statute preempts the field and invalidates a local ordinance within that field “if there is express legislative intent to preempt the field or...