Oregon Cannabis: Josephine County Loses Again

Poor Josephine County.

We have been writing on this blog about the southern Oregon county’s mounting frustrations with cannabis, its successive losses in litigation, and its most recent attempt in federal district court to submarine Oregon’s cannabis programs. We immediately identified this lawsuit as a “stunning overreach” and we predicted the county would lose. To that end, and just before the holiday weekend, a U.S. magistrate judge issued a Report and Recommendation (“Report”) that Josephine county’s case should be dismissed. That will almost certainly occur.

By way of background, we explained back in April that Josephine County wanted the federal court to:

1. Declare that cannabis production cannot qualify as a pre-existing “lawful use” because of federal prohibition;
2. Declare that counties can place any restrictions they want, including a full ban, on cannabis businesses because state legal regimes are pre-empted by federal law;
3. Declare that Oregon’s medical and recreational regimes unlawfully restrict the county’s police powers in light of federal prohibition; and
4. Enjoin the State from bringing official misconduct charges against any local or county official that ignores their duties under state law.

Well, none of that is happening. The magistrate judge issued a thoughtful, eight-page opinion (no public link available– email me if you want a copy) which rested on two points of law: 1) Josephine County, as a political subdivision of the State of Oregon, lacks standing to sue the state in Federal District Court; and 2) no justiciable case or controversy exists between the parties. Let’s take a quick look at each finding.

Standing. For one party to sue another, it must convince a court of a sufficient connection to, and harm from, the law or action challenged. Here, the Report cited a mountain of Ninth Circuit precedent to the effect that a state cannot be sued by its political subdivisions. In apparent anticipation of this, Josephine County had argued that its “home rule” status creates an exception, but the Report swatted that argument away in two brisk paragraphs. When a party has no standing, the merits of its claims don’t matter.

No Justiciable Case or Controversy. The Report covered this argument almost as an afterthought. The judge found that even if the court could find an exception to the fatal standing issue, the case should be dismissed because Oregon has not prohibited Josephine County from enacting the regulations it wants to enact (restricting marijuana grows on rural residential land). Instead, the county erred by not providing landowners required notice, and that deficiency (rather than any substantive deficiency) was the sole reason a lower court iced the county’s restrictive ordinance. The judge had fun in this section of this Report. He notes that:

On a practical rather than legal note, 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, as would be theoretically required by full compliance with the [Controlled Substances Act]. Instead, the County merely seeks to limit the use and production in rural residential zones, while continuing to allow marijuana use and production in other instances. Apparently the County is only worried about aiding and abetting federal felonies on certain kinds of land and not others.”

Indeed! So what happens next? The Report will be referred to a district court judge. The county’s objections, if any, are due within 14 days. After that, the state would have 14 days to respond. Once those windows close, the judge will issue a final opinion, which is almost certain to agree with the Report. Theoretically that ruling could be appealed to the Ninth Circuit Court of Appeals, and ultimately the U.S. Supreme Court. In our opinion, though, it’s unlikely either of those courts would take up the case. We also believe that Josephine County should stop wasting taxpayer funds on ill-conceived litigation and bad press. Who knows if that will actually happen, though.

For more on the Josephine County saga, check out the following posts: