Medical marijuana bill in limbo after letter from U.S. attorneys

OLYMPIA – The Legislature’s efforts to provide structure and regulations to Washington’s burgeoning medical marijuana operations could be snuffed out by a warning last week from the state’s federal prosecutors.

A bill to require the state Agriculture Department to license medical marijuana growers and processors, and the state Health Department to license dispensaries, would run headlong into federal law, U.S. Attorneys Mike Ormsby in Spokane and Jenny Durkan in Seattle told Gov. Chris Gregoire in a letter Thursday.

The proposal has passed both houses in some version, but still must be reconciled to eliminate the differences. It won’t stop federal prosecution of medical marijuana growers and sellers in its present form, federal prosecutors said. There may not be any way the state can do that.

“Growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities,” Ormsby and Durkan wrote. “State employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the Controlled Substance Act.”

Gregoire, who had asked the U.S. Justice Department for written guidance on some system to regulate medical marijuana, said last week she’d veto the bill in its present form: “I will not sign anything subjecting state employees to prosecution.”

She called for meetings with key legislators trying to find a way through conflicting federal and state laws. Sen. Jeanne Kohl-Wells, D-Seattle, the bill’s prime sponsor, said she remains optimistic some compromise can be worked out.

But today starts the last week of the Legislature’s regular session, and much of the time likely will be devoted to budgets. Senate Majority Leader Lisa Brown, D-Spokane, stopped short of saying the medical marijuana bill is dead, because a compromise that’s reached could have a chance in an expected special session.

“We haven’t made that decision yet,” Brown said Friday afternoon. “It would have been good to hear about these objections earlier.”

But no one knows how to satisfy two diametrically opposing views on medical marijuana. The state’s voters in 1998 said overwhelmingly they wanted it to be legal to use marijuana to treat certain medical conditions. Despite that, and medical marijuana laws in 14 other states, the federal government doesn’t recognize any medicinal uses for the plant and classifies it as a Schedule 1 drug, illegal for all uses.

A 2009 Justice Department memo says the federal government will not spend time prosecuting patients who smoke marijuana to relieve symptoms or who grow small amounts for personal use. But prosecutors recently have stepped up efforts to close dispensaries where marijuana is sold.

Dispensary operators risk having their property seized, and landlords who rent to dispensaries could suffer the same fate, Ormsby warned early this month in a letter to owners of property being used for dispensaries. That letter may have closed as many as 10 dispensaries in Spokane as nervous landlords canceled leases in less than two weeks, said Ken Martin, Spokane director of CannaCare, which operates clinics and dispensaries in Washington.

The letter also sent a shock wave through the Legislature as it was debating SB 5073, Kohl-Wells’ bill that already had its share of detractors. Law enforcement was opposed to anything suggesting marijuana has a legitimate use. Some established clinics and dispensaries argued the bill was unworkable, with its voluntary registry for marijuana patients and zoning rules for where dispensaries could be located, coupled with different agencies in charge of licensing different aspects of production and sales.

“Nothing would make me happier than to see this bill dead,” said Steve Sarich, CannaCare’s executive director in Seattle, who with Martin testified against it in committee hearings. He fears that any version of Kohl-Wells’ bill that would pass now will be stripped of protections for growers or dispensaries and simply set up a registry of medical marijuana patients sought by law enforcement.

Like Brown, Kohl-Wells said Friday she was concerned the warning letter from Ormsby and Durkan came so late in the legislative process. She thinks Gregoire’s concern for state employees is misplaced because the bill doesn’t require them to come in contact with marijuana, so federal drug agents wouldn’t be going into state offices to arrest state workers.

Ormsby said the letter was a response to Gregoire’s request; he wasn’t aware of the bill until recently. He understands that his April 6 warning to landlords may have caused some state officials to re-examine the bill, but that wasn’t the purpose of that notice.

“We have a significant problem here in Spokane with the proliferation of dispensaries,” he said. The Legislature didn’t ask for advice on how to craft a bill to regulate medical marijuana, but even if it did, he has no idea what would work.

“It’s still an illegal drug on the federal level,” he said. Until Congress removes it from Schedule 1 and reclassifies it for legal or medicinal use, the conflict will remain.

On that point, at least, Martin agrees. Taking marijuana off Schedule 1 is “really what we need to do,” he said. Until then, conflicts between Washington voters’ decision to allow marijuana for medical use and the federal government’s total prohibition likely will be fought in the courts.