Cannabis Action Coalition v. City Of Kent

n-Trv-

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.

-2-

No. 70396-0-1 (consol. with No. 69457-0-l)/3

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.

-3-

No. 70396-0-1 (consol. with No. 69457-0-l)/4

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:

No. 70396-0-1 (consol. with No. 69457-0-l)/5

§ 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.

No. 70396-0-1 (consol. with No. 69457-0-l)/6

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.

No. 70396-0-1 (consol. with No. 69457-0-l)/7

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

No. 70396-0-1 (consol. with No. 69457-0-l)/8

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,

8

No. 70396-0-1 (consol. with No. 69457-0-l)/9

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 Wn. App. 955, 963, 10 P.3d 1095 (2000) (citing RAP 10.3(c); Dvkstra v. Skagit

County. 97 Wn. 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

-10-

No. 70396-0-1 (consol. with No. 69457-0-l)/11

"[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 Wn. 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 Wn. App. 477, 483, 269 P.3d 1079, review denied, 174

Wn.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 Wn.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 Wn.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)).

-11 -

No. 70396-0-1 (consol. with No. 69457-0-l)/12

vetoes sections of a bill, the governor's veto message is considered a statement

of legislative intent. Dep't of Ecology v. Theodoratus, 135 Wn.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

-12-

No. 70396-0-1 (consol. with No. 69457-0-l)/13

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

-13-

No. 70396-0-1 (consol. with No. 69457-0-l)/14

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 Wn.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.

-14

No. 70396-0-1 (consol. with No. 69457-0-l)/15

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 Wn.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 Wn.2d at 545 (alteration in original) (quoting Wash.

Ass'n of Apartment Ass'ns v. Evans, 88 Wn.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 Wn.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 Wn.2d at 547. Thus, the current

analytical approach is that the governor is free to veto sections of a bill even

-15-

No. 70396-0-1 (consol. with No. 69457-0-l)/16

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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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.

16

No. 70396-0-1 (consol. with No. 69457-0-l)/17

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 Wn.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

-17-

No. 70396-0-1 (consol. with No. 69457-0-l)/18

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

-18-

No. 70396-0-1 (consol. with No. 69457-0-l)/19

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.

-19-

No. 70396-0-1 (consol. with No. 69457-0-l)/20

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 Wn.2d 699, 708, 985 P.2d 262 (1999)

(citing State v.S.P.. 110 Wn.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

20

No. 70396-0-1 (consol. with No. 69457-0-l)/21

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.

-21 -

No. 70396-0-1 (consol. with No. 69457-0-l)/22

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 Wn. App. 785,

789, 496 P.2d 534 (1972) (emphasis aHrlftdV accord Hass v. Citv of Kirkland. 78

Wn.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

-22-

No. 70396-0-1 (consol. with No. 69457-0-l)/23

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

-23-

No. 70396-0-1 (consol. with No. 69457-0-l)/24

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 Wn.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

Wn.2d 278, 289, 957 P.2d 621 (1998); Brown v. Citv of Yakima, 116 Wn.2d 556,

560, 807 P.2d 353 (1991)). Otherwise, municipalities will have concurrent

jurisdiction over the subject matter. HJS Dev., 148 Wn.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.

-24-

No. 70396-0-1 (consol. with No. 69457-0-l)/25

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 Wn. 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 Wn. 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 Wn.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 Wn. 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 Wn.2d 826, 834-35,

827 P.2d 1374 (1992) (internal quotation marks omitted) (quoting City of

Bellinoham v. Schampera. 57 Wn.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 Wn.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 Wn.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.

-25-

No. 70396-0-1 (consol. with No. 69457-0-l)/26

coextensive with those possessed by the State. Citv of Seattle. 94 Wn.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 Wn.2d at 109; accord State v. Kirwin, 165

Wn.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 Wn.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 Wn.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