A second superior court judge today agreed with an opinion issued by the Attorney General’s Office last year, concluding that nothing in Initiative 502 overrides local governments’ authority to regulate or ban marijuana businesses.

The ruling came from Chelan County Superior Court Judge T.W. Small in the case of SMP Retail, LLC v. City of Wenatchee. The plaintiffs in the case sought to open a marijuana business in Wenatchee despite the city’s ban on such businesses. A formal opinion released by the AGO in January 2014 concluded that, as drafted, I-502 does not prevent cities and counties from banning marijuana businesses.

Judge Small is now the second judge to agree with the AGO opinion, following Pierce County Superior Court Judge Ronald Culpepper’s ruling in August in a similar case involving the City of Fife. If courts continue to agree with the AGO opinion that I-502 does not require local governments to allow marijuana businesses, they will not need to decide in these cases whether federal law preempts I-502. This allows I-502 to continue to be implemented.

“My office is working aggressively to uphold the will of the voters,” said Attorney General Bob Ferguson. “Today’s ruling affirms the opinion of my office earlier this year and allows Initiative 502 to continue to be implemented in Washington state. As I have said from the beginning, the drafters of Initiative 502 could have required local jurisdictions to allow the sale of recreational marijuana. It could have been done in a single sentence, but it was not. Now it is up to the Legislature to decide whether to require local governments to allow for the sale of marijuana.”

The AGO intervened in this case to uphold the will of the voters, defend I-502 and ensure its proper interpretation. The AGO does not represent the plaintiffs or the City of Wenatchee. Rather, the AGO is an additional party to the lawsuit. Deputy Solicitor General Jeff Even gave oral arguments on behalf of the Attorney General’s Office.

As noted above, Judge Small is the second judge to agree with the Attorney General’s Office on this issue. The plaintiffs in the first case, MMH, LLC v. Fife, have appealed the decision in their case to the Washington Supreme Court. The court will likely decide sometime early next year whether to accept review of that case.