Oregon Cannabis: Josephine County Loses Again

Josephine County marijuana cannabis litigation

…another Josephine County setback.

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. And that is what should occur.

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

Declare that cannabis production cannot qualify as a pre-existing “lawful use” because of federal prohibition;
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;
Declare that Oregon’s medical and recreational regimes unlawfully restrict the county’s police powers in light of federal prohibition; and
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 attempted to argue that its “home rule” status makes for 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 Continue Reading

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