Top Legal

Canna Law Blog by Hilary Bricken


Cities and Counties Banning Cannabis: Why Not Let The People Decide?

By Hilary Bricken Washington State cities and counties continue to implement bans and temporary moratoria to prevent recreational marijuana from becoming a reality within their borders. How can these local governments even opt out of I-502? According to municipalities, they can prohibit I-502 for the following reasons:+ The opinion from the office of the State Attorney General (AG) regarding I-502 + Inherent police powers + Federal prohibition We briefly analyze each of these alleged sources of banning power in the context of I-502 as follows: The State AG’s opinion. In January 2014, the AG’s office formally opined that, among other things, nothing in I-502 prevents local authorities from banning I-502 facilities. In turn, cities and counties have used that opinion to justify prohibiting State-licensed marijuana businesses. We sued Wenatchee over its ban (which is based almost entirely on the AG’s opinion) and we are confident that this will not be the last anti-marijuana city against which one of our clients takes legal action. Though the A/G’s opinion is influential, it is certainly notbinding and it has no legal power. It is one attorney’s … Read the full article

More Posts from Canna Law Blog

Recent Legal News

“You get older, you get sick, you start getting diseases, your bones stop working as well as they used to and you’re presented with this pharmacopoeia of different drugs that you have to take just to get through the day,” said Ben Pollara, who leads United for Care, the pro-Amendment 2 campaign. “To the extent that seniors can use marijuana to supplement or replace any of those drugs I think is a good thing.”

Florida Seniors’ Interest In Medical Marijuana A Pivotal election point

FLORIDA: The debate over legalizing medical marijuana in Florida constantly generates talk of young people potentially flooding the polls. But seniors are the most reliable voters and could be key to the outcome of the measure. Though polling on Amendment 2 has been erratic, seniors have been showing a level of interest in the initiative that underscores the fact they may benefit most from its passage. “You get older, you get sick, you start getting … Read the full article...


OREGON, MEASURE 91 -    % Yes ______ % No ______
ALASKA, BALLOT MEASURE 2 -    % Yes ______ % No ______
WASHINGTON, D.C., INITIATIVE 71 -    % Yes ______ % No ______
FLORIDA, AMENDMENT 2     (Requires 60% to pass) -    % Yes ______ % No ______
WASHINGTON STATE, ADVISORY VOTE NO. 8 -    % Repeal ______ % Maintain ______

Oregon learns from CO & WA as voters weigh legalization.
Oregon has had weed on the ballot for the two previous elections, and the measures have had trouble passing. New Approach Oregon's Measure 91, this year's legalization campaign, has been better organized and funded. These facts alone mean it should get more votes than the 2012 effort. A hybrid of Colorado and Washington's legalization measures it allows for homegrow and doesn't include a specific drugged-driving limit, Measure 91 tries to learn form previous efforts. Measure 91 has always enjoyed more support than opposition in the polls, but Oregon's past elections show its hardly a shire thing.  Pot is popular in Portland, but the measure needs moderate support outside the state's largest city if it's to avoid the fate of past efforts. One of the federal guidelines passed down is for pot not to travel over state lines. The practicality of this will take a big hit if Measure 91 passes.

Marijuana has come up in Oregon's governor and senate races as well. Incumbent Gov. John Kitzhabe has a activist turned girlfriend, Cylvia Hayes, who keeps finding ways to steal the campaign narrative away from the governor, including stories of a pot farm planned she intended to grow in Washington that never came to be. Even so, Republican challenger Dennis Richardson has an uphill battle, as Kitzhabe is one of the most popular political figures in the state and the scandal at issue is not pot per-say, but rather how Hayes has been influencing the governor on broader policy matters.

Oregon Senator Jeff Merkley is also up for re-election, and has said he'll be voting for Measure 91. The biggest surprise here has been how much of a non-issue cannabis has been even with both campaigns addressing it. Portland Congressman Earl Blumenauer is another green ally who will cruise to re-election. The Democrat has been eager to defend legalization when other states tried it, once it effects Blumenauer's constituents expect his efforts to take on greater urgency.

Smoke on the Potomac: Will D.C.'s legal pot lead to pot stores in the nation's capitol?
At the the turn of the century, the District of Colubmia's request for statehood were ignored (again). In response they slapped "Taxation Without Representation" on Washington, D.C. license plates, one of the few things the government in the nation's capitol actually controls. They have no vote in Congress, the body that controls their budget. For this reason the district can't vote on anything that changes taxes. So their legalization plan, Initiative 71, is strictly homegrown and possession for those over 21. It won't open any pot stores near the Jefferson memorial, and because D.C. is littered with federal property, so you could still get arrested all over town. But it's a pretty big insult to the federal government from their hometown, and should stop some local arrests too. If Initiative 71 doesn't pass, the legalization movement is doing something very wrong.

The only thing more certain than Initiative 71 passage, is the re-election of Eleanor Holmes-Norton for their non-voting delegate. She's popular, and vowed to defend Initiative 71before Congress to her fullest. And she does vote on the Transportation and Oversight and Government Reform committees, the latter of which helps legislate within the district. If D.C. expects to see Initiative 71 survive after passage, it will need an ally like her.

Frontier Grass: Alaska fights prohibition's chill with legal weed plan.
Alaska has a complex relationship with cannabis. After the state decriminalized in 1975, an interpretation of the state constitution expanded protections to homegrown marijuana gardens. Ballot Measure 2 gives voters the choice to expand this with a tax and regulate system. The ballot summary explains in part: "The bill would make the use of marijuana legal for persons 21 years of age or older. The bill would allow a person to possess, use, show, buy, transport, or grow set amounts of marijuana, with the growing subject to certain restrictions. The bill would ban the public use of marijuana."

The size and sparse population of the state has fostered a "live and let live" streak of individualism. Still, there are still "dry" communities (no alcohol sales) and sensitivity to drug abuse has left the measure contentious. The campaign is sponsored by a citizens group, The Alaska Campaign to Regulate Marijuana, and has received significant backing from the Marijuana Policy Project. Supporters have leaned heavily on comparing alcohol to cannabis, citing its low risk for overdose, lowered risk of dependency and aggression of users as some of the selling points. An opposition group, Big Marijuana. Big Mistake. Vote No on 2 has focused on the fear of outside marijuana commercialization, lack of local opt-out choice for communities, and a general uncertainty about the safety and federal classification of marijuana. 

The most infamous moment of the campaign thus-far has been the viral video of Charlene Egby, then a reporter for KTVA-TV discussing the Alaska Cannabis Club, a medical marijuana group of which she was the central organizer. After outing her own conflict of interest on-air, saying "[I] will be dedicating all of my energy toward fighting for freedom and fairness, which begins with legalizing marijuana here in Alaska," Egby followed up with "f*ck it, I quit." Following the live and sudden departure, Egby has become a fierce and vocal public face of the marijuana community.

As well as Ballot Measure 2, Alaskans will also be voting on a U.S. Senator and Governor. Both races have shaken up over the past few weeks. Sen. Mark Begich was in a neck-and-neck race against republican challenger Dan Sullivan, a Former Alaska Natural Resources Commissioner. A dishonest TV ad from the Begich campaign has put the senator on the defensive, and the seat is seen as a crucial pickup for the GOP in their hopes to reclaim the Senate. Alaskan Governor Sean Parnell had a smooth primary campaign, so smooth that the state Democratic party made their gubernatorial candidate the lieutenant governor on a combined ticket with Independent candidate Bill Walker. Walker was a formidable third party candidate before, but combined with Democrats has made him favored. Though Walker hasn't come out in favor of legalization in the state, Gov. Parnell actively thwarted a chance to study the impact of Ballot Measure 2, leaving the state handicapped in its preparedness should the measure pass. 

There has been relatively little polling on legalization in the Frontier State, polls and pundits have split over whether voters favor Ballot Measure 2 or not. Alaska represents the biggest toss-up of the 2014 legalization initiatives.

MMJ in the Sunshine State, Florida Amendment too close to call.
Earlier this year, Florida enacted a low-tetrahydrocannabinol (THC) legislation. The law made available CBD strains like "Charlotte's Web" to people suffering from epilepsy or seizures, but that didn't stop activists from getting a more expansive law on the ballot. However, because the "Right to Medical Marijuana Initiative" known as Amendment 2, requires 60% of the vote to be adopted, it's facing an uphill battle. The law would allow all THC heavy strains, and a wider range of conditions to qualify. Opponents argue it's too broad, and their criticism may be gaining ground, recent polls have shown Amendment 2 to be narrowing in support. Should it pass it will be one of the largest states to support legislation since California enacted the first medical marijuana law in 1996.

Florida Gov. Rick Scott made his fortune in the healthcare industry, but doesn't see THC as being part of it. His fear of drug abuse led him to oppose Amendment 2. His opponent, former GOP governor turned Democrat Charlie Crist, supported the amendment early on when it polled more popularly around the Sunshine State than he did. Still, support doesn't break down along party lines, and its unlikely that the issue will make or break either candidate.

Will Colorado voters keep legalization growing with more stores in more towns?
Colorado and Washington both enacted legalization in 2012 under Democratic governors and U.S. Senators. None of those seats are open in Washington, but Colorado's governor and one Senator are. Former Congressman Bob Beauprez is running against incumbent democrat, Gov. John Hickenlooper. Hickenlooper is famed for his tepid embrace of legalization, recently describing voters decision as "reckless." Both candidates desire for public safety and caution rule their vision of implementation. Though Beauprez suggested earlier this month that voters should consider repealing the effort, meaning he's unlikely to do anything to help it work.

Colorado also has a hotly contested Senate race. Incumbent Sen. Mark Udall is running against Congressman Cory Gardner. Udall, along with the other senators from Colorado and Washington asked the Obama Administration for "consistent and uniform" guidelines for states that have legalized earlier this year. Gardner voted against defunding DEA raids earlier this year (fortunately, the bill passed) and has gotten significant support from conservative billionaire Sheldon Adelson. Adelson is a clear marijuana opponent, giving millions to oppose Florida's medical amendment. It's impossible to believe Gardner would be a stronger advocate in the Senate than Udall. Colorado does enjoy a vocal cannabis ally in Rep. Jared Polis, the Denver area Democrat has sponsored or co-sponsored every marijuana reform bill in this Congress. He's in a safe district, which is good because the marijuana community will need more like him if federal law is to change.

Colorado also has a contentious Attorney General Race, Republican Cynthia Coffman leads Democrat Don Quick, with a small minority for Libertarian David K. Williams. All three have pledged to defend the matter in court, though Williams was the only candidate to support Amendment 64 before it passed in 2012.

Multiple towns have ballot measures to ban or legalize retail pot stores. Amendment 64 gave municipalities a clear opt out path for stores (possession is legal statewide) and some local residents are exercising it. For example, Manitou, Colorado's Measure 2G will let the town decide whether or not to outlaw it's only retail stop, Maggie's farm, the only store in the area. The town's mayor, Marc Snyder, told local news he thought the effort was unlikely to pass, legalization was widely supported in 2012 and concerns about increased lawlessness and panhandling had little supporting evidence. A clear pattern of rejecting bans, and embracing retail access would provide a powerful narrative that Colorado's experiment is working. Below is a list of local marijuana measures in Colorado:
    •    City of Manitou Springs Retail Marijuana Ban, Measure 2G
    •    Town of Lakewood Marijuana Retail Ban, Measure 2A 
    •    Town of Paonia Marijuana Retail Legalization Referendum 
    •    Town of Red Cliff Marijuana Retail Ban, Question 2G 
    •    City of Manitou Springs Retail Marijuana Ban, Measure 2G 
    •    Town of Ramah Marijuana Retail Legalization, Measure 2B 
    •    Town of Palmer Lake Marijuana Retail Legalization & Taxation, Measure 300 
    •    Town of Palmer Lake Recreational Marijuana Retail Ban, Measure 301 
    •    Cañon City Marijuana Retail Legalization, Measure 2C 
    •    Town of Palisade Retail Marijuana Legalization, Measure 2A 

Municipalities consider MMJ rules as California gears up for 2016 legalization fight.
One of the closest watched ballot measures in 2010 was California's legalization measure, Proposition 19. The proposition lost, but it came close, and showed cannabis as a competitive developing issue. Though the state will not be voting on legalization this year, there is one relevant statewide proposition, and a variety of candidates, and local medical marijuana measures that will keep the plant at the forefront of voters minds. Proposition 47 is a measure to reduce most nonviolent crimes from a felony to a misdemeanor in an effort to address the state's bloated prison population. Though marijuana has been decriminalized for years, the measure will reaffirm voters preference towards less incarceration and lower emphasis on non-violent offenses, which are often drug-related. Proposition 47 has a wide berth of support and endorsements, though there has not been much polling, it looks likely to pass. 

Marijuana has also figured prominently in the state's Attorney General race. Incumbent democrat Kamala Harris wooed the marijuana industry with solid support of medical access in 2010. Over the last four years, however, the movement has soured on her lack of support for recreational use, and scant efforts to protect state dispensaries from raids by the federal government. Republican challenger, attorney Ron Gold has used the rift to shore up support around the state by promising to look out for both the existing medical market, and the potential recreational one. Gold is still unlikely to win, but the results will show how much, if any, Harris's popularity has suffered due to giving cannabis users the cold shoulder.

California has several "green" representatives in the House of Representatives, but two stand out as strong supporters, Democrat Barbara Lee, and Republican Dana Rohrabacher. While Lee represents an urban Los Angeles with liberal ideology to match, Rohrabacher is from a more conservative and suburban Orange County district, and is a rank-and-file Republican. Both voted for or sponsored legislation to let states set their own marijuana policies, and protect medical marijuana patients from DEA raids. Both are sure bets for re-election.

California will also have a variety of local marijuana measures. Most focus on regulating or taxing the medical dispensaries in the state. Some are a response to current local laws, others are meant to normalize an industry with very little state oversight. Two counties have two marijuana initiatives, in the event both pass, the one with the greatest number of votes gets enacted into law. Butte County has Measures A and B, A enacts a county council-approved plan to regulate size of collective gardens by acreage, Measure B is a voter-drafted plan which does the same thing, but is more lenient and based on plant count. Lake County also has competing Measures, O and P. Measure O sets up production and sales rules for medical marijuana that are closer in structure to Washington and Colorado's legalization plans. Measure P seeks to establish a human right to personal gardens, marijuana included, but supporters framed the issue broadly as an effort to protect small farms in lawsuits from large corporations over genetically modified products, and medical homegrown too. Below is a list of local marijuana measures in California.
    •     City of Encinitas Medical Marijuana Initiative, Proposition F 
    •     Butte County Medical Marijuana Ordinance 4075 Referendum, Measure A
    •     Butte County Medical Marijuana Initiative, Measure B 
    •     Shasta County Outdoor Medical Marijuana Ordinance Referendum, Measure A 
    •     Nevada County Medical Marijuana Cultivation, Measure S
    •     Lake County "Medical Marijuana Control Act" Initiative, Measure O
    •     Lake County "Freedom to Garden Human Rights Restoration Act" Initiative, Measure P 
    •     City of Long Beach Medical Marijuana Sales Tax, Proposition A

Washington voters advise state, is cannabis like any other crop?
Pot is back on the ballot in Washington state, albeit in a less binding way. Legislation over the past year stripped marijuana from being classified as an agriculture crop, denying growers tax deductions on their businesses. Between federal taxes, and few deductions at the state level, the marijuana industry is not a "get rich quick" kind of business. Advisory Vote No. 8, "Washington Elimination of Agricultural Tax Preferences for Marijuana" gives voters a chance to weigh in on the change. They can vote to maintain denying pot an agriculture listing, or vote to repeal the legislature's efforts. There has been no campaign for or against, so it suffers from low awareness. Though it won't change state law, a majority voting for repeal, or even a very close "maintain" vote would create hesitation in Olympia about adding further red-tape to the burgeoning industry.

Washington also has a couple Congressional races worth watching. Freshman Rep. Dennis Heck has supported the Marijuana Business Access to Banking Act, crucial legislation that would make it easier for pot stores and their suppliers to get bank accounts and insurance. Heck, a Democrat, is being challenged by Joyce McDonald, a county executive who worked to ban marijuana businesses from her county, and suggested that Washington voters should have gotten federal law changed first if they wanted legal cannabis. This is one of the only house races where both candidates are publicly at odds over marijuana. It's not the central campaign issue, but will be important in showing how ineffective prohibitionist ideas are in modern politics.

Southwestern Washington Republican Rep. Jaime Hererra-Beulter walks the line between not advocating legalization or prohibition. Though the city of Vancouver, across the Columbia river from Portland, Ore. is very supportive of the Evergreen state's newly legal weed, most of her district voted against it, and she's happy leave the issue to others. Her challenger, Bob Dingethal, has tried to make his support of legalization pay off, helping Vancouver proclaim a "marijuana day" for the city at a MJBA event on the campaign trail. Dingethal's support isn't a political liability, which is a positive change itself, but probably won't be enough to swing the district away from Herrera-Beutler this year.

Maine-stream idea, local ballots set the scene for New England legalization.
In 2013, Maine's capitol of Portland voted to make adult possession legal, the municipal law was promptly ignored by local police who favored the feds and state law over the town they served. Thankfully, this insult hasn't made the idea less popular, and now two other cities, South Portland and Lewiston, have legalization measures before voters this year. If they pass it will be yet another sign of legalization's steady support outside of big, progressive cities. But because of their limited enforcement, the ballot measures may do little to stop the damage of the state's pot prohibition. 

Maine also has the only U.S. Senate candidate endorsed by the National Organization for the Reform of Marijuana Laws (NORML), Democrat Shenna Bellows. Bellows is a former head of Maine's chapter of the American Civil Liberties Union (ACLU) who has been polling far below incumbent GOP Senator Susan Collins. The NORML endorsement is unlikely to swing voters, which is a shame because there are painfully few U.S. senators backing federal cannabis reform.

Michigan, where local legalization efforts are popular and affordable.
Michigan doesn't come to mind when most people think of pot legalization when they think of Michigan, but clearly they should. Many of these measures are supported by the Safer Michigan Coalition which has gotten many similar measures passed around the state previously, as well has defending the Michigan Medical Marijuana Act, adopted in 2008. While most seek to make possession by adults over 21 a ticket-able, and not arrest-able offense, the City of Frankfort has a straight-up legalization proposal that would make such possession legal in the city. Safer Michigan's Chuck Ream explains it's effectiveness: “These local initiatives are really, really cheap, compared to anything that can be done on a state level. For a few thousand dollars we can show that the average voter doesn’t support cannabis prohibition any longer.” Here is a full list of local Michigan marijuana proposals:
    •    (MI) City of Frankfort Marijuana Legalization Proposal 
    •    (MI) City of Mount Pleasant Marijuana Decriminalization Proposal 
    •    (MI) City of Lapeer Marijuana Decriminalization Proposal 
    •    (MI) City of Harrison Marijuana Decriminalization Proposal 
    •    (MI) City of Saginaw Marijuana Decriminalization Proposal 
    •    (MI) City of Port Huron Marijuana Decriminalization Proposal 
    •    (MI) City of Onaway Marijuana Decriminalization Proposal
    •    (MI) City of Clare Marijuana Decriminalization Proposal

Also in Michigan is Congressman Justin Amish, the liberty-centric Republican is in a safe district to be re-elected. Since the exit of Ron Paul, no one in the House makes a stronger case for local control of cannabis like Rep. Amish.

MJ News Network 2014 Midterm Marijuana Scorecard:

MJNN CANNABIS ELECTION GUIDE OREGON, MEASURE 91 -    % Yes ______ % No ______ ALASKA, BALLOT MEASURE 2 -    % Yes ______ % No ______ WASHINGTON, D.C., INITIATIVE 71 -    % Yes ______ % No ______ FLORIDA, AMENDMENT 2     (Requires 60% to pass) -    % Yes ______ % No ______ WASHINGTON STATE, ADVISORY VOTE NO. 8 -    % Repeal ______ % Maintain ______ By Bailey Hirschburg Oregon learns from CO & WA as voters weigh legalization. Oregon has had weed … Read the full article...