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Jonathan Martin, Seattle Times
Gov. Chris Gregoire on Friday is expected to veto all or part of a landmark medical-marijuana bill because of federal prosecutors' threat to prosecute state employees who carry it out.
That threat, delivered by the state's two U.S. attorneys earlier this month, has prompted concerns about federal meddling in state policymaking. Legislators, law professors and marijuana activists said Thursday that threat is hollow, and may not be constitutionally legal.
Gregoire has publicly said she will not sign the bill, and has called a news conference for Friday to discuss it.
She has cited a letter by U.S. Attorneys Jenny Durkan of Seattle and Mike Ormsby of Spokane, which said state employees could be held civilly or criminally liable for enforcing the proposed law, which would legalize and regulate medical dispensaries and grow operations for the first time.
Hugh Spitzer, a state constitutional law expert, told Gregoire in a letter on Thursday that he knew of no cases "during the past 60 years, and perhaps not since the Civil War," when individual state workers were federally charged for following state law. He urged her to sign the bill.
The threat from Durkan and Ormsby, he wrote, "is an example of inappropriate Federal 'bullying' of our state in connection with a controversial policy issue where this Washington is undertaking an approach that is not preferred by that Washington."
Sen. Jeanne Kohl-Welles, D-Seattle, championed the bill, SB 5073, in response to an outcry from police, cities and patients asking for clarification of vague elements of the 1998 voter-approved medical-marijuana law.
Kohl-Welles said she understood Gregoire's concern about protecting state employees, "but I can't fathom that the federal government would send agents to arrest and then prosecute them for doing their jobs under state law. The governor is taking them totally serious, and I'm saying it's such a stretch that would happen."
In anticipation of a full or partial veto, Kohl-Welles said she was preparing a bill that could be heard during the Legislature's current special session, with provisions designed to better protect state employees.
The concern appears to hinge on subtle wording in the bill that authorizes the state to license and regulate dispensaries and grow farms, but it does not outright decriminalize those operations.
That distinction was critical in a 2010 Oregon Supreme Court case, known as Emerald Steel, which allowed employers to fire employees for use of marijuana. In that case, the court found that the federal ban on marijuana pre-empted uses of marijuana that were authorized, but not decriminalized under Oregon law.
Gregoire appears to be concerned that, should she sign the bill, federal law would pre-empt and state employees could be prosecuted. Federal officials and at least one federal court has said that for state workers to be immune from federal prosecution, they must be enforcing conduct that is decriminalized under state law.
But Robert Mikos, a Vanderbilt law professor who studies the intersection of federalism and medical-marijuana laws, doubts federal prosecutors could charge state employees unless they were actively "aiding and abetting" people in violation of federal law.
By issuing licenses, "the state here is not helping people commit federal violations," he said.
As debate about the bill spun through legal and activist circles on Thursday, federal agents in Spokane raided at least three dispensaries there, seizing marijuana and patient records.
The raids occurred at the same time as a national medical-marijuana activist, Steph Scherer, was conducting a "raid training" session at the downtown Spokane library. Cellphones began buzzing during the training, and the crowd quickly left for a protest outside one of the raided dispensaries on Spokane's South Hill.
Scherer, founder of the California-based Americans for Safe Access, said the letter from Durkan and Ormsby and the raids were part of a campaign to intimidate medical-marijuana patients. "Most of these raids are smash and grabs — they take the medicine, they take the patient records, then don't prosecute. We're sick and tried of this. We're obviously not going away."
Ormsby, in an interview, confirmed that raids were in progress, but said he could not discuss an ongoing investigation. The raids come on the heels of a letter Ormsby sent earlier this month threatening dispensaries' landlords with potential forfeiture of their properties.
"Dispensaries are huge scourge in this community," said Ormsby. Before the letter to landlords, at least 55 were operating in the area, nine of them within 500 feet of schools. "That's totally unacceptable."
Under federal law, marijuana is a Schedule I drug and cannot be prescribed, possessed or grown.
Ormsby said he was not consulted about the pending bill until Gregoire asked for his opinion earlier this month, after it had passed both chambers of the Legislature. Even if he had been, Ormsby said there is "no distribution model that will meet federal approval."
He said he went through "proper channels" within the Department of Justice before sending the letter.