Washington cannabis case upholds compulsory residency

On July 23, 2021, the Thurston County Superior Court gave the Washington State Liquor and Cannabis Board (WSLCB) a summary order in a lawsuit filed by Idaho businessman Todd Brinkmeyer contesting Washington state residency requirements for marijuana licensing Decision. Since Brinkmeyer is not a Washington resident, he cannot own a stake in a licensed marijuana business despite being licensed as a financier in a retail license.

The summary judgment ruling found that Brinkmeyer, the plaintiff, “failed to meet his heavy burden of proving that Washington’s residency requirement under Washington’s preferential and immunity clause is unconstitutional.” [because] The plaintiff is not a citizen of Washington, and Article 1, Section 12 of the Washington Constitution, the Preferential and Immunity Clause, does not apply to him Resolve unanswered questions regarding the constitutionality of residency requirements under the US Constitution.

Photo by Photo by Elsa Olofsson via Unsplash

If you’re looking for a full breakdown of the litigation history of the Brinkmeyer v WSLCB case, you’ve come to the right place with Cannabis Observer, who kept an excellent record of how this case developed. Here is a summary of some key points in the case as provided by Cannabis Observer:

• June 2020 – Brinkmeyer sued the WSLCB to remove the state’s residence requirement. The lawsuit sought a declaratory judgment finding that the residency requirement encompassed the Dormant Commercial Clause (DCC) of the U.S. Constitution, Article IV, and the Privilege and Immunity Clause of the 14th Amendment to the U.S. Constitution, the 14th and the 14. Amendment of the equal protection clause. The lawsuit also sought discharge under the Washington State Constitution under the privilege or immunity clause in Article I, Section 12.
• July 2020 – The case moves to a United States District Court for the Western District of Washington because much of the legal assistance requested was under the U.S. Constitution and a federal court is better placed to rule on these issues than a state court .
• October 2020 – The Federal Supreme Court refers the case back to the Regional Court, “until the state law claims have been finally clarified”. The case then moved to Thurston County Superior Court.
• June-July 2020 – Both Brinkmeyer and the WSLCB are filing motions for a summary judgment. The superior court only allows the WSLCB’s motion for a summary judgment for the Washington Constitution’s right to discharge under Article 1, Section 12.

According to Cannabis Observer, the Honorable Mary Sue Wilson stated in her order that “‘issues related to the federal dormant trade clause” “could be brought up in federal proceedings because that court” remained competent “even for that clause when Brinkmeyer’s complaint was brought up the regional court was rejected. “

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The US Constitution contains a passage commonly known as the “trade clause” that states that “Congress has power. . . Regulate trade. . . among the several states[.]“The US Supreme Court (“ SCOTUS ”) has long interpreted this clause to include an accompanying or“ dormant ”trade clause (the“ DCC ”) that prohibits states from enacting laws that affect trade between States hinder.

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In a recent case, Tennessee Wine and Spirits Retailers Association v. Thomas, ruled in 2019 that SCOTUS invalidated a two-year residency requirement for liquor stores in Tennessee. Applying the DCC to the present case, the Court wrote: “If a state law discriminates against foreign goods or non-resident economic agents, the law can only be upheld if it is demonstrated that it is closely tailored to serve a legitimate local purpose Promote. ”SCOTUS noted that“ Tennessee’s two-year permanent residence requirement clearly favors Tennessee over non-residents, noting that the law was not “tightly tailored” to promote a legitimate local purpose and invalidated Tennessee’s residency requirement as unconstitutional.

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It remains to be seen whether Brinkmeyer will continue his legal battle before the federal court. Regardless of this finding, the question remains whether or not Washington’s residency requirement would survive the DCC analysis. I suspect that if a federal court were to examine the substance of Brinkmeyer’s DCC claim, Washington’s residency requirement would be unconstitutional as it is not closely tied to a legitimate local purpose.

Daniel Shortt is a Seattle, Washington-based corporate and regulatory attorney who works extensively with entrepreneurs in the cannabis industry. You can reach him at info @gl-lg.com or (206) 430-1336.

This article originally appeared in the Green Light Law Group and was republished with permission.