The city of Wenatchee stepped out of a legal bull’s-eye Monday.
City officials filed a response to a lawsuit in Chelan County Superior Court that no longer renders them a target for the ACLU, which considered making Wenatchee a battleground to resolve the conflict between state law, which has legalized weed, and federal law, which still prohibits it in all forms.
Mayor Frank Kuntz said Wenatchee wants to avoid such a costly legal battle.
A lawsuit was filed last month that set the stage for potentially high stakes. Entrepreneur Shaun Preder wants to open a pot retail store in Wenatchee. But city officials have adopted a policy that says to get a city business license, applicants must comply with federal law. That policy effectively bans legal pot merchants.
If the city had raised federal prohibition in responding to Preder’s lawsuit, then the ACLU was prepared to intervene -– with the help of private law firms -– to challenge Wenatchee’s defense. The idea, according to Alison Holcomb, ACLU criminal justice director, was to use a federally based defense by Wenatchee to test the argument that the federal government can trump or pre-empt Washington’s pot law. Holcomb believes federal law does not pre-empt the state law and she could win the argument in court, with sweeping implications for legal marijuana in other states.
But that conflict did not materialize. Wenatchee’s defense relied on an advisory opinion by state Attorney General Bob Ferguson that cities and counties could ban legal pot businesses under Initiative 502, the voter-approved measure that legalized weed in Washington.
“At this point that means the ACLU doesn’t have any interest in intervening,” said Holcomb, chief author of I-502. But the ACLU is monitoring brewing legal battles in other cities and counties that may employ a federal defense.
Wenatchee has not retreated, though, from its position that it can ban legal pot merchants. It has just based its argument on Ferguson’s opinion, Kuntz said. “The city has the right to regulate business within its borders and the AG has said as much. I think that’s our case,” the mayor said.
While Wenatchee may not be the test case for highlighting the state-federal conflict, it still could be at the heart of an important state case.
Preder’s lawyer Hilary Bricken said she plans to push on with a suit against Wenatchee challenging Ferguson’s opinion that could go all the way to the state Supreme court. Such a case could resolve the issue of whether cities and counties can rely on the state Constitution to ban pot business.
“If we have to (and if the client agrees), we’ll be challenging the Ferguson opinion (in court) all the way up” to the state Supreme Court, Bricken wrote in an email.