Jayson Jacoby
The Baker City Herald

Baker City's attorney, Brent Smith, wrote in a Monday memo to City Manager Mike Kee and Police Chief Wyn Lohner that a 2010 Oregon Supreme Court ruling could clear the way for cities to ban medical marijuana dispensaries.

The City Council last month passed just such an ordinance.

But because of uncertainty regarding a bill that the Oregon Legislature is considering that might restrict cities' authority to ban medical marijuana outlets, the City Council included a sunset clause of June 15, 2014, with the ordinance.

Smith wrote in his memo that even if the Legislature passes a bill that allows cities to regulate, but not to outright ban, medical marijuana stores, the 2010 Oregon Supreme Court ruling in the Emerald Steel case could supersede that bill.

In that 2010 ruling the state Supreme Court decided that an employer could fire an employee who used medical marijuana.

Smith wrote in his memo that state Sen. Ted Ferrioli, the John Day Republican who represents Baker County, asked the state Legislative Counsel to issue an opinion about how the Emerald Steel ruling might apply to city ordinances banning medical marijuana dispensaries, and specifically whether cities would be required to allow medical marijuana dispensaries to operate.

The Legislative Counsel's response: "The answer to this question is no. We believe a court would not require a local government to permit the transfer of medical marijuana."

Smith wrote in his memo:"Basically, legislative counsel is saying that if a suit arises under the current controversy that the Oregon Supreme Court will either have to continue under its Emerald Steel reasoning and allow local governments to ban activities that are inconsistent with federal law, or the Supreme Court will have to overturn its recent decision in Emerald Steel."

In response to Smith's memo, Lohner sent a memo to city councilors in which he asks:

"Do we want to create another ordinance to simply remove the 'sunset clause' from Ordinance #3330 and leave the prohibition on the books as is, or do you wish to go another direction with it?"