By Tony Mauro, From The National Law Journal
Almost a full year after Nebraska and Oklahoma sued Colorado over its legalization of marijuana, the litigation is languishing on the U.S. Supreme Court’s docket as it awaits the views of the Obama administration.
The unusual lawsuit, which invokes the high court’s “original jurisdiction” over disputes between states, was filed last year on Dec. 18 last year. More than seven months ago, the justices on May 4 invited U.S. Solicitor General Donald Verrilli Jr. to file a brief in the case. The average wait time for the most recent invited briefs submitted by the solicitor general’s office was roughly four months.
Nebraska Attorney General Doug Peterson wasn’t reached for comment, but he told a high school audience last Thursday that he was anxious for the Supreme Court to take up the case, and that an answer was overdue. Oklahoma officials did not immediately respond to requests for comment.
“We’re in a waiting game,” said Gibson, Dunn & Crutcher partner Mark Perry, who filed a brief on behalf of former Drug Enforcement Administration officials urging the court to accept the case. “It has been a long time.”
Perry said lawyers in the solicitor general’s office met privately with all parties in the interstate dispute early last summer, but nothing has been heard since. “They are playing it close to the vest,” Perry said. It is typical for the solicitor general’s office to meet with lawyers for both sides before deciding the government’s friend-of-the-court position in pending Supreme Court cases. Verrilli declined to comment.
It is increasingly common for the court to call for the views of the solicitor general in original cases, according to new research by a George Mason University School of Law student, Abby Chestnut.
Usually, the solicitor general responds with objective legal advice, not advocacy, Chestnut found. But the Colorado case is “wholly unique,” she wrote, and the court may be opening itself up to criticism by seeking the administration’s views before it agrees to hear the case, because the federal government has such a central stake in the dispute.
In suing Colorado last December, the attorneys general of Nebraska and Oklahoma conveyed a sense of urgency, telling the Supreme Court that their states “have suffered direct and significant harm” from the influx of Colorado-sourced marijuana since its voter-approved legalization initiative took effect in January 2014.
“Marijuana flows from this gap into neighboring states, undermining plaintiff states’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems,” the states wrote in their court papers.
The two states did not ask the Supreme Court to strike down the entire law legalizing marijuana in Colorado. They focused on two sections that regulate recreational marijuana businesses, claiming such regulation is pre-empted by the federal Controlled Substances Act.
The federal government’s position on marijuana legalization efforts is complicated, which may help explain its delay in responding to the Supreme Court’s request.
A 2013 memorandum by then-Deputy Attorney General James Cole stated that the federal government still has authority to enforce the Controlled Substances Act, and still has enforcement priorities regarding marijuana—including preventing diversion of marijuana to states where it not legal.
But Cole added that if states that legalize marijuana impose “strong and effective” regulations on its production, sale and possession, federal priorities are “less likely” to be threatened. States would then remain as the main enforcers of their narcotics laws, Cole said.
Cole, now a partner at Sidley Austin in Washington, declined to comment.
The delay in taking a position may also stem from the unusual posture of the case brought by Nebraska and Oklahoma. The typical subject matter of “original jurisdiction” lawsuits between states is disputes over water rights and shifting borders—not disagreements over state drug laws.
But their brief asserts that the Supreme Court is “the sole forum” for enforcing their rights under the Constitution’s supremacy clause and the federal government’s power over regulation of interstate commerce.
Perry’s brief for former drug czars told the justices that “it is hard to imagine a clearer case” for exercising the high court’s original jurisdiction. The brief notes that a small number of “original” cases through history have targeted state policies that create nuisances like pollution in neighboring states.
But other states are not so sure. Kansas Solicitor General Stephen McAllister, an expert on the court’s original jurisdiction docket, said, “The theory underlying the case is a little troubling. If they’re taking our water, I’ll go after them, but I’m not sure about suing other states for their policy choices.”
Kansas did not join the suit, even though Kansas shares a border with Colorado.
Colorado’s response to the lawsuit asserts that the federal government’s marijuana policy is the real target, and Nebraska and Oklahoma should challenge it in the same way that they, along with Texas and other states, have challenged the administration’s immigration policy of deferring deportation of certain undocumented immigrants.
The attorneys general of Washington and Oregon also filed a brief urging the court not to use its original jurisdiction to referee the marijuana dispute.
Oregon Attorney General Ellen Rosenblum and Washington Attorney General Robert Ferguson wrote, “The court has never used its original jurisdiction to resolve such policy disagreements between states, and it should not start now.”
Even if the high court agrees soon to review the dispute, it might not be resolved by the end of the current term next June. Because “original” cases are filed with the Supreme Court directly, there is no record from courts below. As a result, the court usually—though not always—appoints a “special master” to conduct fact-finding and to recommend a solution to the justices. That process can take years.
IMAGE: Large sign in Durango, Colorado, giving directions to a medical and retail marijuana dispensary. January 10, 2015. Credit: Kara Grubis via iStockphoto.com
For more on this story go to: http://www.nationallawjournal.com/id=1202744290134/Dispute-Over-Colorados-Marijuana-Law-Sits-on-Supreme-Court-Back-Burner#ixzz3tq5xLl6L