Marijuana, SCOTUS

Marijuana Melee: Nebraska And Oklahoma v. Colorado

It is anyone’s guess as to how SCOTUS will handle this potentially critical case of first-impression, and most involved with the marijuana industry are rightfully nervous.

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In December of last year, Nebraska and Oklahoma (the “NO States”) filed suit against Colorado in the United States Supreme Court, seeking to invalidate Colorado’s recreational cannabis laws. Last week, the Supreme Court invited the Obama Administration to weigh in with its position on the lawsuit.

The NO states allege that marijuana from Colorado has strained their financial and legal resources by forcing them to spend time and money making arrests, housing criminals, impounding vehicles, and seizing drugs. Colorado marijuana has also allegedly undermined the NO States’ marijuana prevention programs. Without any statistics to support their claims, the NO States also allege that Colorado has failed to keep its marijuana in Colorado.

The NO States argue that Article VI of the Constitution requires federal law prevail over contradictory state law and no state may “authorize the violation of federal law.” According to the NO States, Colorado’s allowing growing and distribution of marijuana on a commercial basis violates federal law and ultimately damages the NO States. Above all, the NO States seek a ruling from SCOTUS mandating that Colorado cease its commercial cannabis operations.

Importantly, the NO States do not seek a ruling mandating that Colorado ban the personal use of marijuana, or that it prosecute marijuana use as a crime. The lawsuit instead seeks to end Colorado’s regime that allows for legal commercial growing and distribution of cannabis for recreational use. Washington and Oregon filed amicus briefs supporting Colorado’s right to legalize cannabis for adult use.

Procedurally, the Constitution mandates that one state may sue another state in the Supreme Court without first having to sue in a lower court, but only with permission of the Supreme Court to do so. When states sue each other and invoke the jurisdiction of the Supreme Court (which only rarely happens), the Supreme Court has original jurisdiction power, rather than appellate power. In this type of scenario, SCOTUS does not host a trial on the merits of the case; it typically selects and assigns an expert to the case to gather facts and make recommendations about how it should proceed.

On Monday of last week, SCOTUS asked the Justice Department (specifically, the Office of the Solicitor General) essentially to explain its “position” regarding the litigation. Though a DOJ response is not expected for months, I am hoping the DOJ will reiterate to SCOTUS its position as set forth in the most recent Cole Memo.

According to the Wall Street Journal, at least one high-level legal scholar has opined that the lawsuit should and likely will be dismissed on procedural grounds:

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University of Texas law professor Sanford Levinson said odds were slim that the justices would allow Nebraska and Oklahoma to circumvent the normal process of filing suit in district court and appealing to circuit court before seeking Supreme Court review. “The real lawsuit shouldn’t be filed against Colorado. It ought to be Nebraska and Oklahoma v. Lynch, to force the attorney general to enforce federal law which undoubtedly is supreme over Colorado law,” Mr. Levinson said.

I’m not so sure given the high stakes involved.

The last time SCOTUS weighed in on a marijuana case of significant magnitude, it did not go well for the marijuana industry. Nonetheless, much has changed since Gonzales v. Raich, evidenced by the increasingly large number of states that have chosen to end marijuana prohibition and by the recent California federal court decision to hear evidence on the constitutionality of marijuana as a Schedule I drug under federal law.

At this point though, it is anyone’s guess as to how SCOTUS will handle this potentially critical case of first-impression, and most involved with the marijuana industry are rightfully nervous. If Colorado’s legalization experiment gets shut down by its neighbors, there will be little in the way to stop more “NO States” from going after the other handful of states that have legalized, ultimately setting back years of marijuana advocacy, curtailing states’ rights, and emboldening federal prohibition.

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Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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