Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

Aug 15 2016

Two cases challenge state authority to enact marijuana laws

Attorney General Bob Ferguson urged the U.S. Court of Appeals for the 10th Circuit to reject two cases challenging Colorado’s recreational marijuana laws.

A lower federal court rejected both cases, and Ferguson argues in an amicus — or “friend of the court” — brief filed today that the appeals court should affirm those decisions and dismiss the challenges to state law.

The two lawsuits — Safe Streets Alliance v. Hickenlooper and Smith et al. v. Hickenlooper — argue that the federal Controlled Substances Act preempts Colorado state law, which provides for a regulated and licensed market in marijuana.

Initiative 502 created similar recreational marijuana laws in the State of Washington.

“Cases like this threaten the core of I-502,” Ferguson said. “The people of Colorado and Washington have voted to allow recreational marijuana, and my job is to make sure the will of the people is upheld.”

In his brief, which the State of Oregon also joined, Ferguson argues that the Controlled Substances Act “expressly preserves state legislative authority regarding controlled substances,” allowing states to be the “primary enforcers of drug laws.”

More than 20 states have adopted medical marijuana laws, and more than a dozen states require no jail time for the possession of marijuana intended for personal use.

Further, the federal Department of Justice’s own guidance — issued in 2013 — sets forth a framework for state recreational marijuana laws. In its guidance, the Justice Department stated it would not intervene in or challenge the voter initiatives in states that legalized recreational marijuana, as long as those states maintained a “strict system of regulation” that followed several federal enforcement guidelines.

Those guidelines include keeping marijuana out of the hands of minors, impaired driving prevention programs and preventing revenues from the sale of marijuana from benefiting criminal enterprises, among others.

Ferguson argues that Colorado’s and Washington’s regulatory structures for recreational marijuana meet and exceed the federal guidelines.

Ferguson’s brief further argues that the plaintiffs in both cases lack legal standing to call for the federal government’s intervention, as the power to enforce the Controlled Substances Act rests solely with the Attorney General of the United States.

The Attorney General’s amicus brief was prepared by Deputy Solicitor General Jeff Even and Assistant Attorney General Bruce Turcott.


The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.


Peter Lavallee, Communications Director, (360) 586-0725; PeterL@atg.wa.gov