Cannabis Action Coalition v. City Of Kent ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CANNABIS ACTION COALITION,
ARTHUR WEST, DIVISION ONE
Plaintiffs, No. 70396-0-1
(Consolidated with
STEVE SARICH, JOHN No. 69457-0-1)
WORTHINGTON, and DERYCK
TSANG,
Appellants,
CITY OF KENT, a local municipal PUBLISHED OPINION
corporation,
Respondent. FILED: March 31, 2014
Dwyer, J. — The Washington Constitution grants the governor the power
to veto individual sections of a bill. The governor may exercise this power even
when doing so changes the meaning or effect of the bill from that which the
legislature intended. As a corollary of this power, when the governor's sectional
veto alters the intent of the bill and the legislature does not override the veto, the
governor's veto message becomes the exclusive statement of legislative intent
that speaks directly to the bill as enacted into law.
No. 70396-0-1 (consol. with No. 69457-0-l)/2
In this case, the governor vetoed over half of the sections in a 2011 bill
amending the Washington State Medical Use of Cannabis Act1 (MUCA),
substantially changing the meaning, intent, and effect of the bill. Although
Engrossed Second Substitute Senate Bill (ESSSB) 5073 was originally designed
to legalize medical marijuana through the creation of a state registry of lawful
users, as enacted it provides medical marijuana users with an affirmative
defense to criminal prosecution.
Following the governor's sectional veto and the new law's effective date,
the City of Kent enacted a zoning ordinance which defined medical marijuana
"collective gardens" and prohibited such a use in all zoning districts. By so doing,
Kent banned collective gardens.
An organization and several individuals (collectively the Challengers)
brought a declaratory judgment action challenging the ordinance. The
Challengers claimed that ESSSB 5073 legalized collective gardens and that Kent
was thus without authority to regulate or ban collective gardens. In response,
Kent sought an injunction against the individual challengers enjoining them from
violating the ordinance. The superior court ruled in favor of Kent, dismissed the
Challengers' claims for relief, and granted the reliefsought by Kent.
We hold that neither the plain language of the statute nor the governor's
intent as expressed in her veto message supports a reading of ESSSB 5073 that
legalizes collective gardens. The Kent city council acted within its authority by
enacting the ordinance banning collective gardens. Accordingly, the trial court
1 Ch. 69.51A RCW.
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did not err by dismissing the Challengers' actions and granting relief to Kent.
I
In 2011, the Washington legislature adopted ESSSB 5073, which was
intended to amend the MUCA.2 The bill purported to create a comprehensive
regulatory scheme, whereby—with regard to medical marijuana—all patients,
physicians, processors, producers, and dispensers would be registered with the
state Department of Health. The legislature's intended purpose in amending the
statute, as stated in section 101 of the bill, was so that
(a) Qualifying patients and designated providers complying
with the terms of this act and registering with the department of
health will no longer be subject to arrest or prosecution, other
criminal sanctions, or civil consequences based solely on their
medical use of cannabis;
(b) Qualifying patients will have access to an adequate, safe,
consistent, and secure source of medical quality cannabis; and
(c) Health care professionals may authorize the medical use
of cannabis in the manner provided by this act without fear of state
criminal or civil sanctions.
Engrossed Second Substitute S. B. (ESSSB) 5073, § 101, 62nd Leg., Reg.
Sess. (Wash. 2011) (italics and boldface omitted). The legislature also amended
RCW 69.51A.005, the MUCA's preexisting purpose and intent provision, to state,
in relevant part:
Qualifying patients with terminal or debilitating medical conditions
who, in the judgment of their health care professionals, may benefit
from the medical use of cannabis, shall not be arrested,
prosecuted, or subject to other criminal sanctions or civil
consequences under state law based solely on their medical use of
2The MUCA, as it existed priorto the 2011 legislative session, was a product of Initiative
Measure No. 692 passed by the voters in the 1998 general election and subsequently codified as
chapter 69.51A RCW. The MUCA was amended in 2007 and 2010 in manners not pertinent to
the issues presented herein. Laws of 2007, ch. 371; Laws of 2010, ch. 284.
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cannabis, notwithstanding any other provision of law.
ESSSB 5073, §102.
As drafted by the legislature, ESSSB 5073 established a state-run registry
system for qualified patients and providers. Significantly, section 901 of the bill
required the state Department of Health, in conjunction with the state Department
of Agriculture, to "adopt rules for the creation, implementation, maintenance, and
timely upgrading of a secure and confidential registration system." ESSSB 5073,
§ 901(1). Patients would not be required to register; rather, the registry would be
"optional for qualifying patients." ESSSB 5073, § 901(6). On the one hand, if a
patientwas registered with the Department of Health, he or she would not be
subjectto prosecution for marijuana-related offenses.3 ESSSB 5073, § 405. On
the other hand, if a patient did not register, he or she would be entitled only to an
affirmative defense to marijuana-related charges.4 ESSSB 5073, § 406.
The bill also allowed qualified patients to establish collective gardens for
the purpose of growing medical marijuana for personal use.5 ESSSB 5073,
3 This section of the bill is now codified as follows:
The medical use of cannabis in accordance with the terms and conditions of this
chapter does not constitute a crime and a qualifying patient or designated
provider in compliance with the terms and conditions of this chapter may not be
arrested, prosecuted, or subject to other criminal sanctions or civil
consequences, for possession, manufacture, or delivery of, or for possession
with intent to manufacture or deliver, cannabis under state law, or have real or
personal property seized or forfeited for possession, manufacture, or delivery of,
or for possession with intent to manufacture or deliver, cannabis under state law,
and investigating peace officers and law enforcement agencies may not be held
civilly liable for failure to seize cannabis in this circumstance.
RCW 69.51 A. 040.
4 This section is now codified as RCW 69.51A.043(1), which states, "A qualifying patient
ordesignated provider who is not registered with the registry established in *section 901 of this
act may raise the affirmative defense."
5 Now codified as RCW 69.51 A.085, this section provides:
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§ 403. Furthermore, even though the bill purported to legalize medical marijuana
for registered patients and providers, it nevertheless granted authority to
municipalities to regulate medical marijuana use within their territorial confines.
Section 1102, now codified as RCW69.51A.140, provides in relevant part:
(1) Cities and towns may adopt and enforce any of the following
pertaining to the production, processing, or dispensing of cannabis
or cannabis products within their jurisdiction: Zoning requirements,
business licensing requirements, health and safety requirements,
and business taxes. Nothing in this act is intended to limit the
authority of cities and towns to impose zoning requirements or
other conditions upon licensed dispensers, so long as such
requirements do not preclude the possibility of siting licensed
dispensers within the jurisdiction. Ifthe jurisdiction has no
commercial zones, the jurisdiction is not required to adopt zoning to
accommodate licensed dispensers.
ESSSB 5073, §1102.
(1) Qualifying patients may create and participate in collective gardens for the
purpose of producing, processing, transporting, and delivering cannabis for
medical use subject to the following conditions:
(a) No more than ten qualifying patients may participate in a single
collective garden at any time;
(b) A collective garden may contain no more than fifteen plants per
patient up to a total of forty-five plants;
(c) A collective garden may contain no more than twenty-four ounces of
useable cannabis per patient up to a total of seventy-two ounces of useable
cannabis;
(d) A copy of each qualifying patient's valid documentation or proof of
registration with the registry established in *section 901 of this act, including a
copy of the patient's proof of identity, must be available at all times on the
premises of the collective garden; and
(e) No useable cannabis from the collective garden is delivered to
anyone other than one of the qualifying patients participating in the collective
garden.
(2) For purposes of this section, the creation of a "collective garden"
means qualifying patients sharing responsibility for acquiring and supplying the
resources required to produce and process cannabis for medical use such as, for
example, a location for a collective garden; equipment, supplies, and labor
necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and
cuttings; and equipment, supplies, and labor necessary for proper construction,
plumbing, wiring, and ventilation of a garden of cannabis plants.
(3) A person who knowingly violates a provision of subsection (1) of this
section is not entitled to the protections of this chapter.
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The bill was passed by both houses of the legislature and sent to Governor
Gregoire for her signature.
On April 14, 2011, the United States Attorneys for the Eastern and
Western Districts of Washington wrote an advisory letter to Governor Gregoire
regarding ESSSB 5073. Therein, the district attorneys explained the Department
of Justice's position on the bill:
The Washington legislative proposals will create a licensing
scheme that permits large-scale marijuana cultivation and
distribution. This would authorize conduct contrary to federal law
and thus, would undermine the federal government's efforts to
regulate the possession, manufacturing, and trafficking of controlled
substances. ... In addition, state employees who conducted
activities mandated by the Washington legislative proposals would
not be immune from liability under the CSAJ6! Potential actions the
Department could consider include injunctive actions to prevent
cultivation and distribution of marijuana and other associated
violations of the CSA; civil fines; criminal prosecution; and the
forfeiture of any property used to facilitate a violation of the CSA.
After receiving this missive, Governor Gregoire vetoed all sections ofthe
bill which might have subjected state employees to federal charges. The
governor vetoed 36 sections7 ofthe bill that purported to establish a state
registry, including section 901, and including section 101, the legislature's
statement of intent. Laws of 2011, ch. 181. The governor left intact those
sections of the bill that did not create or were not wholly dependent on the
creation of a state registry. Laws of 2011, ch. 181. In her official veto message,
Governor Gregoire explained her decision to leave parts of the bill intact:
6 Controlled Substances Act, Title 21 U.S.C., Ch. 13.
7The bill contained 58 sections as passed by the legislature. The governor vetoed 36 of
those sections.
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Today, I have signed sections of Engrossed Second Substitute Bill
5073 that retain the provisions of Initiative 692 and provide
additional state law protections. Qualifying patients or their
designated providers may grow cannabis for the patient's use or
participate in a collective garden without fear of state law criminal
prosecutions. Qualifying patients or their designated providers are
also protected from certain state civil law consequences.
Laws of 2011, ch. 181, governor's veto message at 1374-75.
The governor recognized that her extensive exercise of the sectional veto
power rendered meaningless any ofthe bill's provisions that were dependent
upon the state registry, noting that "[bjecause I have vetoed the licensing
provisions, I have also vetoed" numerous other sections. Laws of 2011, ch. 181,
governor's veto message at 1375. However, the governor also recognized that-
after her extensive vetoes—portions of some sections would remain meaningful
even though references to the registry within those sections would not.
Importantly, in one particular example, the governor stated:
I am not vetoing Sections 402 or 406, which establish affirmative
defenses for a qualifying patient or designated provider who is not
registered with the registry established in section 901. Because
these sections govern those who have not registered, this section is
meaningful even though section 901 has been vetoed.
Laws of 2011, ch. 181, governor's veto message at 1376. Another section that
the governor believed to have meaning, even though it referenced registered
entities, was section 1102. With respect to this section, the governor stated:
Section 1102 sets forth local governments' authority pertaining to
the production, processing or dispensing of cannabis or cannabis
products within their jurisdictions. The provisions in Section 1102
that local governments' zoning requirements cannot "preclude the
possibility of siting licensed dispensers within the jurisdiction" are
without meaning in light ofthe vetoes ofsections providing for such
licensed dispensers. It is with this understanding that I approve
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section 1102.
Laws of 2011, ch. 181, governor's veto message at 1375. The bill, now
consisting only of the 22 sections not vetoed by the governor, was signed into
law and codified in chapter 69.51 A RCW. The legislature did not override the
governor's veto.
Subsequently, Kent sought to exercise its zoning power to regulate
collective gardens. On July 5, 2011 and January 3, 2012, Kent issued six month
moratoria prohibiting collective gardens within the city limits. On June 5, 2012,
Kent enacted Ordinance No. 4036 (the Ordinance), defining collective gardens
and banning them within the city limits. The Ordinance states, in relevant part:
A. Collective gardens, as defined in KCC 15.02.074, are prohibited
in the following zoning districts:
1. All agricultural districts, including A-10 and AG;
2. All residential districts, including SR-1, SR-3, SR-4.5, SR-
6, SR-8, MR-D, MR-T12, MR-T16, MR-G, MR-M, MR-H, MHP,
PUD, MTC-1, MTC-2, and MCR;
3. All commercial/office districts, including: NCC, CC, CC-
MU, DC, DCE, DCE-T, CM-1, CM-2, GC, GC-MU, O, O-MU, and
GWC;
4. All industrial districts, including: MA, M1, M1-C, M2, and
M3; and
5. Any new district established after June 5, 2012.
B. Any violation ofthis section is declared to be a public nuisance
per se, and shall be abated by the city attorney under applicable
provisions of this code or state law, including, but not limited to, the
provisions of KCC Chapter 1.04.
Thereafter, the Cannabis Action Coalition, Steve Sarich, Arthur West,
John Worthington, and Deryck Tsang filed suit against Kent, seeking declaratory,
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injunctive, and mandamus relief.8 Worthington, Sarich, and West stated in their
complaint that they intended to participate in a collective garden in Kent. None of
the three, however, actually resided in, owned or operated a business in, or
participated in a collective garden in Kent. Tsang, on the other hand, is a
resident of Kent and currently participates in a collective garden in the city limits.
In the superior court proceeding, the parties filed competing motions for
summary judgment. After considering all documentation submitted by the
parties, the trial court ruled in favor of Kent. The trial court dismissed the claims
of Cannabis Action Coalition, Sarich, West, and Worthington for lack of
standing.9 On the merits of Tsang's claims, the trial court held that "[t]he Kent
City Council had authority to pass Ordinance 4036, Ordinance 4036 is not
preempted by state law, and Ordinance 4036 does not violate any constitutional
rights of Plaintiffs." The trial court also granted Kent's request for a permanent
injunction against all plaintiffs, prohibiting them from violating the Ordinance.
The Challengers appealed to the Washington Supreme Court and
requested a stay of the injunction. The Supreme Court Commissioner granted
the stay. While the appeal was pending, Kent filed a motion to strike portions of
Worthington's reply brief, which Worthington countered with a motion to waive
Rule of Appellate Procedure (RAP) 10.3(c).10 The Supreme Court transferred
8The Cannabis Action Coalition is no longer a party to this matter. Although West filed a
notice of appeal, he never filed an appellate brief; he has thus abandoned his appeal.
9 However, the trial court stated that "even ifall plaintiffs do have standing," its motion
granting summary judgment in favor of Kent was "dispositive as to all plaintiffs."
10 Kent asserts that the majority of Worthington's reply brief should be stricken because
they contain arguments not raised in the trial court, they contain arguments not raised in
Worthington's opening brief, and they are not in response to Kent's brief. Worthington contends
No. 70396-0-1 (consol. with No. 69457-0-l)/10
the appeal to this court, along with the two unresolved motions.
II
A
The Challengers contend that the plain language of the MUCA legalizes
collective gardens.11 This is so, they assert, because the MUCA provides that
that this court should waive RAP 10.3(c) and that his entire reply briefshould be considered in
order to "meet the ends of justice and facilitate a ruling on the merits."
RAP 10.3(c) provides that, "[a] reply brief should conform with subsections (1), (2), (6),
(7), and (8) of section (a) and be limited to a response to the issues in the brief to which the reply
brief is directed." "A reply brief is generally not the proper forum to address new issues because
the respondent does not getan opportunity to address the newly raised issues." City ofSpokane
v. White. 102 Wash. App. 955, 963, 10 P.3d 1095 (2000) (citing RAP 10.3(c); Dvkstra v. Skagit
County. 97 Wash. App. 670, 676, 985 P.2d 424 (1999)).
Sections A, C, G, and IofWorthington's reply brief all consist ofarguments not previously
raised orare premised on facts not in the record. Kent's motion is granted with respect tothese
sections. Kent's motion is denied with respect to sections B, D, and H.
Kent additionally moved to strike all appendices toWorthington's reply brief. "An
appendix may not include materials not contained in the record on review without permission from
the appellate court, except as provided in rule 10.4(c)." RAP 10.3(a)(8).
Appendix Ddoes not appear in the record, nor did Worthington seek permission from the
Supreme Court to include materials not contained in the record. We therefore grant Kent's
motion to strike appendix D. Kent's motion is denied with respect to Appendices Aand C.
Appendix Bis a copy of an unpublished federal district court decision, which Worthington
cited in support of his argument in section G. As we have already stricken section G, we have no
basis to consider the material in Appendix B. Kent's motion with respect to this appendix is thus
moot.
Worthington contends that we should waive RAP 10.3(c) and nevertheless consider
sections A, C, G, I, and Appendices Band D. RAP 18.8(a) allows this court to waive any of the
RAPs "in order to serve the ends ofjustice." In addition toWorthington's opening brief, this court
has received briefing from Sarich, Tsang, Kent, and two amici curiae. Accordingly, it is not
necessary to consider Worthington's new arguments "in order to serve the ends of justice" in this
case. Worthington's motion is denied.
11 As an initial matter, Kent claims that Sarich and Worthington lack standing to assert
these arguments. However, in the trial court, Kent sought and was granted affirmative relief
against all plaintiffs, including Sarich and Worthington. Because Sarich and Worthington are now
subject to a permanent injunction, they both have standing on appeal. Orion Corp. v. State, 103
Wn.2d441,455, 693 P.2d 13RQ (1985)- see also Casev v. Chapman, 123 Wn. App. 670,676,98
P.3d 1246 (2004) ("Parties whose financial interests are affected by the outcome of a declaratory
judgment action have standing."). Moreover, as soon as Kent sought affirmative relief against
them in the trial court, their standing wasestablished. Vovos v. Grant, 87Wn.2d 697, 699, 555
P2d 1343 (1976) ("A person has standing to challenge a court order or other court action if his
protectable interest is adversely affected thereby.") The critical question is whether "if the relief
requested is granted," will the litigants' protectable interests be affected. Herrold v. Case, 42
Wn2d912 Q1K ?t;Q p ™ «3" Mafia); r.f Snohomish County Bd. ofEqualization v. Dep't of
Revenue, 80 Wii.2d 262, 264-64, 493 P.2d 1012 (1972) ("Without a decision of this court, [the
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"[qualifying patients may create and participate in collective gardens." RCW
69.51A.085(1). Kent, in response, contends that the plain language of the
MUCA did not legalize collective gardens because collective gardens would only
have been legalized in circumstances wherein the participating patients were
duly registered, and the registry does not exist. The trial court properly ruled that
Kent is correct.
We review issues of statutory interpretation de novo. Fiore v. PPG Indus..
Inc., 169 Wash. App. 325, 333, 279 P.3d 972 (2012). "The goal of statutory
interpretation is to discern and carry out legislative intent." Bennett v. Seattle
Mental Health, 166 Wash. App. 477, 483, 269 P.3d 1079, review denied, 174
Wash. 2d 1009 (2012). "The court must give effect to legislative intent determined
'within the context of the entire statute.'" Whatcom County v. City of Bellinqham,
128Wn.2d 537, 546, 909 P.2d 1303 (1996) (quoting State v. Elgin, 118Wn.2d
551, 556, 825 P.2d 314 (1992)). "If the statute's meaning is plain on its face, we
give effect to that plain meaning as the expression of what was intended."
TracFone Wireless. Inc. v. Dep't of Revenue, 170 Wash. 2d 273, 281, 242 P.3d 810
(2010^ (citing Dep't of Ecology v. Campbell & Gwinn. LLC, 146Wn.2d 1,9-10,43
P.3d 4 (2002)). "In approving or disapproving legislation, the governor acts in a
legislative capacity and as part of the legislative branch of government." Hallin v.
Trent, 94 Wash. 2d 671, 677, 619 P.2d 357 (1980). Accordingly, when the governor
plaintiffs] were placed in a position of making a determination of a difficult question of
constitutional law with the possibility offacing both civil and criminal penalties if they made the
wrong choice. One of the purposes of declaratory judgment laws is to give relief from such
situations." (emphasis added) (footnotes omitted)).
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vetoes sections of a bill, the governor's veto message is considered a statement
of legislative intent. Dep't of Ecology v. Theodoratus, 135 Wash. 2d 582, 594, 957
P.2d 1241 (1998).
The plain language of ESSSB 5073, as enacted, does not legalize medical
marijuana or collective gardens. Subsection (1) of RCW 69.51 A.085 delineates
the requirements for collective gardens. RCW 69.51A.085 further provides that
"[a] person who knowingly violates a provision of subsection (1) of this section is
not entitled to the protections of this chapter." RCW 69.51A.085(3).
The "protections of this chapter" to which RCW 69.51A.085(3) refers are
found in RCW 69.51A.040 and 69.51A.043. RCW 69.51A.040 provides that
"[t]he medical use of cannabis in accordance with the terms and conditions of this
chapter does not constitute a crime" if the patient meets the six listed
requirements. One of the listed requirements is that
The qualifying patient or designated provider keeps a copy of his or
her proof of registration with the registry established in *section 901
of this act and the qualifying patient or designated provider's
contact information posted prominently next to any cannabis plants,
cannabis products, or useable cannabis located at his or her
residence.
RCW 69.51A.040(3) (emphasis added). Therefore, in order to obtain the
protections provided by RCW 69.51A.040, the patient must be registered with the
state.
RCW 69.51A.043, on the other hand, delineates the protections for
patients who are not registered:
(1) A qualifying patient ordesignated provider who is not
registered with the registry established in *section 901 of this act
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may raise the affirmative defense set forth in subsection (2) of this
section, if:
(a) The qualifying patient or designated provider presents his
or her valid documentation to any peace officer who questions the
patient or provider regarding his or her medical use of cannabis;
(b) The qualifying patient or designated provider possesses
no more cannabis than the limits set forth in RCW 69.51 A.040(1);
(c) The qualifying patient or designated provider is in
compliance with all other terms and conditions of this chapter;
(2) A qualifying patientor designated provider who is not
registered with the registry established in *section 901 of this act,
but who presents his or her valid documentation to any peace
officer who questions the patient orprovider regarding his or her
medical use of cannabis, may assert an affirmative defense to
charges of violations of state law relating to cannabis through proof
at trial, by a preponderance of the evidence, that he orshe
otherwise meets the requirements of RCW 69.51 A.040. A
qualifying patient or designated provider meeting the conditions of
this subsection but possessing more cannabis than the limits set
forth in RCW 69.51A.040(1) may, in the investigating peace
officer's discretion, be taken into custody and booked into jail in
connection with the investigation of the incident.
(Emphasis added.) Section 901 of ESSSB 5073, referred to in both RCW
69.51A.040 and 69.51A.043, was vetoed. As a result of the governor's veto,
the state registry does not exist. Thus, it is impossible for an individual to be
registered with the registry. Accordingly, no individual is able to meet the
requirements of RCW 69.51A.040.
Pursuant to RCW 69.51 A.043, patients who are notregistered may be
entitled to an affirmative defense. As we hold today in State v. Reis, No.
69911-3-1, slip op. at 11 (Wash. Ct. App. Mar. 31, 2014), "by default,
qualifying patients and designated providers are entitled only to an affirmative
defense." As such, the only available "protection" to which collective garden
participants are entitled pursuant to RCW 69.51 A.085(3) is an affirmative
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defense to prosecution.
Although such a reading may appear to render RCW 69.51 A.040
meaningless, it does not, in fact, do so. RCW 69.51 A.040 delineates the non-
registry related conditions for possessing medical marijuana. These
conditions are referenced in RCW 69.51A.04312 and are essential
components of the affirmative defense. Thus, the plain language of the
statute does not legalize the use of medical marijuana.13 Instead, it provides
a defense to an assertion that state criminal laws were violated. As such,
medical marijuana use, including collective gardens, was not legalized by the
2011 amendments to the MUCA.
B
All parties contend that the legislative history of ESSSB 5073 supports
their reading of the Act. In order to analyze the legislative history of ESSSB 5073
as enacted, however, we must first determine which sources of legislative intent
are proper for us to consider. For the reasons thatfollow, we hold thatthe
12 "(b) The qualifying patient ordesignated provider possesses no more cannabis than
the limits set forth in RCW 69.51 A.040(1); (c) The qualifying patient or designated provider is in
compliance with all other terms and conditions ofthis chapter." RCW 69.51 A.043(1).
13 In State v. Kurtz. 178 Wash. 2d 466, 476, 309 P.3d 472 (2013), the Supreme Court briefly
stated in dicta, "[l]n 2011 the legislature amended the Act making qualifying marijuana use a legal
use, not simply an affirmative defense." As authority for this assertion, the court cited RCW
69.51 A.005. RCW 69.51 A.005, a preexisting provision entitled "Purpose and intent," was
amended by the legislature in ESSSB 5073, section 102. Section 102 was included in the bill as
passed by both houses of the legislature and accurately expresses the intent of the original bill.
While the governor did not veto section 102, the governor's veto of numerous other sections of
the bill significantly changed the bill's purpose. Additionally, the governor did veto section 101, a
new statement of legislative purpose quoted, suora. at 3. Moreover, the parties in Kurtz did not
address this question in their briefing to the Supreme Court and the court's footnoted statement
was not important to its holding. Thus, we do not view this statement in Kurtz as controlling the
outcome of this litigation. In our decision in Reis. No. 69911-3-1, we further explain our view in
this regard.
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governor's veto message is the sole source of relevant legislative history on the
2011 amendments to the MUCA, as enacted.
Article III, section 12 of the Washington Constitution allows for the
governor to veto "one or more sections . . . while approving other portions of the
bill." Prior to 1984, the long-standing rule governing the governor's sectional veto
power was that the governor could only use the executive veto power in a
"negative" manner, and not in an "affirmative" manner. Wash. Fed'n of State
Employees, AFL-CIO, Council 28 AFSCME v. State, 101 Wash. 2d 536, 545, 682
P.2d 869 (1984). Phrased another way,
"[T]he Governor may use the veto power to prevent some act or
part of an act of the legislature from becoming law. Likewise, the
Governor may not use the veto power to reach a new or different
result from what the legislature intended. In other words, the veto
power must be exercised in a destructive and not a creative
manner."
State Employees, 101 Wash. 2d at 545 (alteration in original) (quoting Wash.
Ass'n of Apartment Ass'ns v. Evans, 88 Wash. 2d 563, 565-66, 564 P.2d 788
(1977)).
In State Employees, the Supreme Court disavowed that rule, holding that,
"[i]ts use by the judiciary is an intrusion into the legislative branch, contrary to the
separation of powers doctrine, and substitutes judicial judgment for the judgment
of the legislative branch." 101 Wash. 2d at 546 (citations omitted). From then on,
"[t]he Governor [was] free to veto 'one or more sections or appropriation items',
without judicial review." State Employees, 101 Wash. 2d at 547. Thus, the current
analytical approach is that the governor is free to veto sections of a bill even
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when doing so changes the meaning of the bill from that which the legislature
originally intended.
Significantly, the Supreme Court characterized the veto process as
follows:
"In approving or disapproving legislation, the Governor acts
in a legislative capacity and as part of the legislative branch of
government." Hallin v. Trent, 94 Wash. 2d 671, 677, 619 P.2d 357
(1980). In effect, the Governor holds one-third of the votes. The
veto is upheld if the Legislature fails to override it. Fain v.
Chapman, 94 Wash. 2d 684, 688, 619 P.2d 353 (1980). To override
the Governor's veto, the Senate and House must agree by a two-
thirds vote. Const, art. 3, § 12 (amend. 62).
State Employees, 101 Wash. 2d at 544. The legislature's power to override, the
Supreme Court held, serves as an adequate "check" on the governor's veto
power. State Employees, 101 Wash. 2d at 547. Thus, if the legislature disapproves
ofthe new meaning or effect ofthe bill resulting from the governor's veto, it can
vote to override the veto and restore the bill to its original meaning or effect.
Here, Governor Gregoire vetoed 36 of the 58 sections of ESSSB 5073.
This veto significantly altered the meaning and effect ofthe sections that
remained for enactment. When returning the bill to the Senate, the governor
provided a formal veto message expressing her opinion as to the meaning and
effect of the bill after her veto. See Wash. State Grange v. Locke, 153 Wash. 2d
475, 490, 105 P.3d 9 (2005) ("The expression of[an opinion as to the statute's
interpretation] is within the governor's prerogative.") Had the legislature objected
to the governor's veto, it could have overturned it by a two-thirds vote. Const.
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art. Ill, § 12. A legislative override would also have nullified the governor's veto
message. By not overriding the veto, the legislature failed to provide an
interpretation of the MUCA contrary to that articulated by Governor Gregoire. Cf,
Rozner v. City of Bellevue, 116 Wash. 2d 342, 349, 804 P.2d 24 (1991)
(legislature's actions in not overriding veto, but later amending parts of the
statute, functioned as legislative approval of governor's veto message with
respect to unamended portions of the statute).
All parties urge us to consider the intent of the legislature in passing
ESSSB 5073. However, ESSSB 5073, as passed by both houses of the
legislature, was not the bill that was enacted. Rather, the bill that was enacted
was that which existed after the governor's veto. Thus, the governor's veto
message is the only legislative history that speaks directly to the law as it was
enacted. It is the paramount source for us to refer to in order to discern the
legislative intent behind the enacted law.
The governor's intent in vetoing a significant portion of ESSSB 5073 was
that there should not be a state registry, and that medical marijuana should not
be legalized. In her veto message, Governor Gregoire stated:
/ have been open, andremain open, to legislation to exempt
qualifying patients and their designated providers from state
criminal penalties when they join in nonprofit cooperative
organizations to share responsibility for producing, processing and
dispensing cannabis for medical use. Such exemption from
criminal penalties should be conditioned on compliance with local
government location and health and safety specifications.
Laws of 2011, ch. 181, governor's veto message at 1376 (emphasis added). By
stating that she was open to future legislation that would exempt patients from
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criminal penalties, the governor indicated that she did not read this bill as
creating any such exemptions.
Further, the governor concluded her veto message by stating:
I am not vetoing Sections 402 or 406, which establish affirmative
defenses for a qualifying patient or designated provider who is not
registered with the registry established in section 901. Because
these sections govern those who have not registered, this section is
meaningful even though section 901 has been vetoed.
Laws of 2011, ch. 181, governor's veto message at 1376. This statement
indicates that the governor realized that her veto would preclude the legislature's
attempt to legalize certain medical marijuana uses. The governor affirmatively
stated her understanding that only affirmative defenses to criminal prosecutions
survived her veto.
These two statements, read in conjunction, demonstrate that the governor
did not intend for ESSSB 5073 to legalize medical marijuana. The governor did
not read the bill as enacted as exempting medical marijuana users from
prosecution. Significantly, although the MUCA provides for an affirmative
defense, "[a]n affirmative defense does not per se legalize an activity." State v.
Fry, 168Wn.2d 1, 10, 228 P.3d 1 (2010). Thus, the plain language of the
statute, which does not read so as to legalize medical marijuana, is consonant
with the governor's expressed intent in signing the bill, as amended by her
vetoes.
The governor's statement regarding collective gardens does not suggest
otherwise. In her veto message, Governor Gregoire stated, "Qualifying patients
or their designated providers may grow cannabis for the patient's use or
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participate in a collective garden without fear of state law criminal
prosecutions."14 Laws of 2011, ch. 181, governor's veto message at 1374-75.
Two paragraphs earlier, Governor Gregoire stated, "In 1998, Washington voters
made the compassionate choice to remove the fear of state criminal prosecution
for patients who use medical marijuana for debilitating or terminal conditions."
Laws of 2011, ch. 181, governor's veto message at 1374. The governor's use of
the phrase "state criminal prosecution[s]" in both sentences indicates that she
intended for the bill to extend the existing legal protections to collective gardens.
The 1998 ballot initiative (I-692) provided qualifying patients with an affirmative
defense to drug charges. Former RCW 69.51 A.040 (1999). I-692 did not
legalize medical marijuana, but the governor nevertheless described it as
"removing] the fear of state criminal prosecution." Her use of the same phrase
when describing ESSSB 5073 must be read in this light. The governor plainly did
not intend for ESSSB 5073, after her vetoes, to legalize medical marijuana. The
plain language of the MUCA is consonant with the governor's expressed intent.
Ill
A
The Challengers nevertheless contend that the plain language of the
MUCA does not allow Kent to regulate collective gardens. This is so, they
assert, because RCW 69.51A.085, which deals with collective gardens, is a
stand-alone statute that does not grant any regulatory authority to municipalities.
14 Kent characterizes this statement as errant. As stated above, the governor was not
saying that she intended to legalize marijuana. As the bill did add an affirmative defense relating
to collective gardens, the governor's statement was not errant.
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We disagree.
Although RCW 69.51A.085 does not itself grant powers to municipalities,
this statutory provision cannot be read in isolation. "We construe an act as a
whole, giving effect to all the language used. Related statutory provisions are
interpreted in relation to each other and all provisions harmonized." C.J.C. v.
Corp. of Catholic Bishop of Yakima. 138 Wash. 2d 699, 708, 985 P.2d 262 (1999)
(citing State v.S.P.. 110 Wash. 2d 886, 890, 756 P.2d 1315 (1988)). RCW
69.51A.085 was passed as part of a comprehensive bill amending the MUCA.
This provision must therefore be read in conjunction with the other enacted
provisions of ESSSB 5073.
Importantly, ESSSB 5073, as enacted, includes a section specifically
granting regulatory powers to municipalities. RCW 69.51 A.140 states:
Cities and towns may adopt and enforce any of the following
pertaining to the production, processing, or dispensing of cannabis
or cannabis products within theirjurisdiction: Zoning requirements,
business licensing requirements, health and safety requirements,
and business taxes. Nothing in chapter 181, Laws of 2011 is
intended to limit the authority of cities and towns to impose zoning
requirements or other conditions upon licensed dispensers, so long
as such requirements do not preclude the possibility of siting
licensed dispensers within the jurisdiction.
(Emphasis added.) The plain language of this section allows municipalities to
regulate the production, processing, and dispensing of medical marijuana.
Only "licensed dispensers" are listed as users that a city may not exclude.
This necessarily implies that a city retains its traditional authority to regulate
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all other uses of medical marijuana.15 Thus, the MUCA expressly authorizes
cities to enact zoning requirements to regulate or exclude collective gardens.
B
The Challengers contend that the legislative history of ESSSB 5073 does
not support a reading of RCW 69.51A.140 that would allow a city to regulate or
exclude collective gardens. To the contrary, it is the Challengers' interpretation
of the statute that is not supported by the legislative history.
In enacting the 2011 amendments to the MUCA, the governor provided
some insight into a locality's ability to regulate medical marijuana. In her veto
message, the governor stated:
Section 1102 sets forth local governments' authority pertaining to
the production, processing or dispensing of cannabis or cannabis
products within their jurisdictions. The provisions in Section 1102
that local governments' zoning requirements cannot "preclude the
possibility of siting licensed dispensers within the jurisdiction" are
without meaning in light ofthe vetoes ofsections providing for such
licensed dispensers. It is with this understanding that Iapprove
Section 1102.
Laws of 2011, ch. 181, governor's veto message at 1375. This statement
indicates that the governor intended section 1102 to have meaning even though
one provision therein was meaningless. Accordingly, the governor's
understanding of section 1102 of the bill was that municipalities would be able to
regulate medical marijuana production, processing or dispensing within their
territorial confines.
15 Acity's traditional authority is defined by the state constitution as 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." Const, art. XI, § 11.
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Further, the governor stated:
I have been open, and remain open, to legislation to exempt
qualifying patients and their designated providers from state
criminal penalties when they join in nonprofit cooperative
organizations to share responsibility for producing, processing and
dispensing cannabis for medical use. Such exemption from state
criminal penalties should be conditioned on compliance with local
government location and health and safety specifications.
Laws of 2011, ch. 181, governor's veto message at 1376 (emphasis added).
"[Location and health and safety specifications" are precisely whatthe
Washington Constitution anticipates municipalities will address by enacting
ordinances. "Municipalities derive their authority to enact ordinances in
furtherance of the public safety, morals, health and welfare from article 11,
section 11 of our state constitution." Citv of Tacoma v. Vance, 6 Wash. App. 785,
789, 496 P.2d 534 (1972) (emphasis aHrlftdV accord Hass v. Citv of Kirkland. 78
Wash. 2d 929, 932, 481 P.2d 9 (1971). The governor's message thus indicated her
understanding that, in the future, if a bill succeeded in legalizing medical
marijuana, municipalities should continue to retain their ordinary regulatory
powers, such as zoning.
Nonetheless, the Challengers contend that the phrase "production,
processing, or dispensing of cannabis or cannabis products" in RCW 69.51A.140
refers only to commercial production, processing, ordispensing. The
Challengers' interpretation would render all of RCW 69.51A.140 a nullity.
Commercial producers, processors, and dispensers are those producers,
processors, and dispensers that would have been licensed by the Department of
Health. ESSSB 5073, § 201(12), (13), (14). As a result of the governor's veto of
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all sections creating a licensing system, commercial producers, processors, and
dispensers do not exist. If "producers, processors, and dispensers" referred only
to those commercial licensed entities, all of section 1102 would be meaningless.
However, the governor did not veto section 1102 along with the other sections
creating licensed producers, processors, and dispensers. Rather, the governor
stated in her veto message that only those "provisions in Section 1102 that local
governments' zoning requirements cannot 'preclude the possibility ofsiting
licensed dispensers within the jurisdiction' are without meaning." Laws of 2011,
ch. 181, governor's veto message at 1375. The governor's veto did not leave
municipalities without the ability to regulate. In this regard, the Challengers'
interpretation of the amended MUCA is contrary to the legislative history of the
bill.
The governor clearly understood the bill to allow cities to use their
zoning power to regulate medical marijuana use within their city limits. The
governor's understanding is consistent with the plain language of the MUCA.
IV
The Challengers next contend that the Ordinance is invalid because, they
assert, the MUCA preempts local regulation of medical marijuana and because
the Ordinance conflicts with state law.16 We disagree.
16 The Challengers also contend that RCW 69.51A.025 precludes cities from banning
collective gardens. This provision states, "Nothing in this chapter or in the rules adopted to
implement it precludes a qualifying patient or designated provider from engaging in the private,
unlicensed noncommercial production, possession, transportation, delivery, or administration of
cannabis for medical use as authorized under RCW 69.51 A.040." RCW 69.51 A.025. Contrary to
the Challengers' assertion, a city zoning ordinance is not a "rule adopted to implement" the
MUCA. The cited provision refers to anticipated Department of Health regulations which would
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Generally, municipalities possess constitutional authority to enact zoning
ordinances as an exercise of their police power. Const, art. XI, § 11. However,
a municipality may not enact a zoning ordinance which is either preempted by or
in conflict with state law. HJS Dev., Inc. v. Pierce County ex rel. Dep't of
Planning & Land Servs., 148 Wash. 2d 451, 477, 61 P.3d 1141 (2003).
State law preempts a local ordinance when "the legislature has expressed
its intent to preempt the field or that intent is manifest from necessary
implication." HJS Dev., 148Wn.2d at 477 (citing Rabon v. Citv of Seattle, 135
Wash. 2d 278, 289, 957 P.2d 621 (1998); Brown v. Citv of Yakima, 116 Wash. 2d 556,
560, 807 P.2d 353 (1991)). Otherwise, municipalities will have concurrent
jurisdiction over the subject matter. HJS Dev., 148 Wash. 2d at 477. The MUCA
does not express the intent to preempt the field of medical marijuana regulation.
To the contrary, as previously discussed in section III, the MUCA explicitly
recognizes a role for municipalities in medical marijuana regulation. As the
MUCA explicitly contemplates its creation, the Ordinance is not directly
preempted by state law.
A local ordinance that is not directly preempted may nevertheless be
invalid if it conflicts with state law. Pursuant to article XI, section 11 of the
Washington Constitution, "[a]ny county, city, town or township may make and
enforce within its limits all such local police, sanitary and other regulations as are
not in conflict with general laws." Acity ordinance is unconstitutional under
have been adopted as rules contained within the Washington Administrative Code, had the
governor not vetoed the regulatory scheme.
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article XI, section 11 if "(1) the ordinance conflicts with some general law; (2) the
ordinance is not a reasonable exercise of the city's police power; or (3) the
subject matter of the ordinance is not local." Edmonds Shopping Ctr. Assocs. v.
Citv of Edmonds, 117 Wash. App. 344, 351, 71 P.3d 233 (2003). Whether a local
ordinance is valid under the state constitution is a pure question of law, which
this court reviews de novo. Edmonds Shopping Ctr., 117 Wash. App. at 351.
Here, the Challengers contend that the Ordinance is unconstitutional
because it conflicts with the MUCA.17 Ordinances are presumed to be
constitutional. HJS Dev., 148 Wash. 2d at 477. As the party challenging the
Ordinance, the burden is on the Challengers to prove beyond a reasonable doubt
that it is unconstitutional. Edmonds Shopping Ctr., 117 Wash. App. at 355. "'In
determining whether an ordinance is in "conflict" with general laws, the test is
whether the ordinance permits or licenses that which the statute forbids and
prohibits, and vice versa.'" Citv of Tacoma v. Luvene, 118 Wash. 2d 826, 834-35,
827 P.2d 1374 (1992) (internal quotation marks omitted) (quoting City of
Bellinoham v. Schampera. 57 Wash. 2d 106, 111, 356 P.2d 292 (1960)). "The
conflict must be direct and irreconcilable with the statute, and the ordinance must
yield to the statute if the two cannot be harmonized." Luvene, 118 Wash. 2d at 835.
"The scope of [a municipality's] police power is broad, encompassing all
those measures which bear a reasonable and substantial relation to promotion of
the general welfare of the people." State v. Citv of Seattle. 94 Wash. 2d 162, 165,
615 P.2d 461 (1980). Generally speaking, a municipality's police powers are
17 The Challengers do not contend that the Ordinance is unreasonable or not local.
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coextensive with those possessed by the State. Citv of Seattle. 94 Wash. 2d at 165.
Without question, a municipality's plenary powers include the power to "enact
ordinances prohibiting and punishing the same acts which constitute an offense
under state laws." Schampera, 57 Wash. 2d at 109; accord State v. Kirwin, 165
Wash. 2d 818, 826-27, 203 P.3d 1044 (2009). As the plain language of the statute
and the governor's veto message indicate, collective gardens are not legal
activity. The Ordinance, by prohibiting collective gardens, prohibits an activity
that constitutes an offense under state law. As it prohibits an activity that is also
prohibited under state law, the Ordinance does not conflict with the MUCA.18
The trial court did not err by so holding.19
Affirmed.
We concur:
18 To decide this case, we need not determine whether the Ordinance would be valid had
the MUCA actually legalized medical marijuana. Therefore, we decline to further address this
subject.
19 The Challengers additionally assert that the trial court erred by issuing a permanent
injunction against them. We review the trial court's decision to grant a permanent injunction for
an abuse of discretion. Wash. Fed'n of State Emps. v. State, 99 Wash. 2d 878, 887, 665 P.2d 1337
(1983). "A party seeking an injunction must show (1) a clear legal or equitable right, (2) a well-
grounded fear of immediate invasion of that right, and (3) actual and substantial injury as a
result." Resident Action Council v. Seattle Hous. Auth., 177 Wash. 2d 417, 445-46, 300 P.3d 376
(2013). In their pleadings, each plaintiff expressed an intention to violate Kent's ordinance. Thus,
the trial court did not abuse its discretion by granting the injunction.
26