Josephine County's Suit Against State Over Marijuana Dismissed

A U.S. District Court judge dismissed the County's lawsuit against the State of Oregon...but County lawyer Wally Hicks says that they have found 'invaluable clarity' through the decision.

Posted: Sep 4, 2018 6:34 PM
Updated: Sep 4, 2018 6:52 PM

GRANTS PASS, Ore. — Josephine County's lawsuit against the state of Oregon over an ongoing marijuana debate has been dismissed, according to a statement from the County released on Tuesday.

The County filed suit at the beginning of April following their defeat at the Land Use Board of Appeals (LUBA)—where local pot farmers fought back against a new ordinance that would have restricted growing for certain property owners. The defining factor in that case, however, hinged on the County's failure to properly inform property owners of the new ordinance.

Following the LUBA loss, the County drew up their lawsuit against the state—and argued, essentially, that Oregon could not enforce marijuana's legality in Josephine County when the federal government continues to prohibit the substance.

County legal Counsel Wally Hicks said on Tuesday that the County was "seeking answers to significant legal questions that had been the subject of vast speculation" when they filed the lawsuit.

Federal magistrate judge Mark D. Clarke's dismissal of the case represents a resounding refusal to hear the argument:

"Finally...the Court is unpersuaded by Josephine County's argument that the State is 'requiring' it to 'aid and abet a federal felony.' The County has provided no evidence to the Court that it has attempted to ban any and all marijuana use and production," the judge wrote in his dismissal opinion.

"Apparently the County is only worried about aiding and abetting federal felonies on certain kinds of land and not others," wrote Judge Clarke.

Judge Clarke also wrote that the LUBA decision against the County had little to do with marijuana and did not represent the state intervening on behalf of marijuana, since the ruling hinged on the County's failure to adequately notify constituents of the new ordinance.

In other, similar cases, Clarke wrote, LUBA has frequently sided with counties—with no dispute from the state.

However, County legal counsel Wally Hicks put a positive spin on the decision.

“For basically the cost of a $400.00 filing fee and staff time, Josephine County has obtained invaluable clarity on the subjects of marijuana legalization and ‘Home Rule’ in Oregon," said Hicks. "The court’s ruling seems to extend much further than the single topic of marijuana regulation. But this decision could be writing on the wall that the federal government will soon drop marijuana to a lower schedule.”

"While the courts may, at some point in the future, have to grapple with the conflict between state and federal laws regarding marijuana," concluded Judge Clarke in his opinion, "the issue must be properly presented and ripe for adjudication. Such is not the case in this instance."

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