LICENSE TO SELL: THE CONSTITUTIONALITY OF DURATIONAL RESIDENCY REQUIREMENTS FOR RETAIL MARIJUANA LICENSES.

• Author: Toma, Gregory S.

Introduction 1440 I. The History of Durational Residency Requirements and Marijuana 1442 A. The Right to Travel: Supreme Court Jurisprudence on State-Imposed Durational Residency Requirements, 1443 B. Under the Influence: The Commerce Clause's Effect on Alcohol Regulation, 1450 i. The Dormant Commerce Clause Doctrine 1451 ii. Alcohol Regulation 1453 C. Recreational Marijuana's Recent Legalization by States: The Prevalence of Durational Residency Requirements 1455 II. The Question: Can Durational Residency Requirements for Retail Marijuana Licenses Pass Constitutional Muster? 1457 A. The State View: Durational Residency Requirements for Retail Marijuana Licenses Are Permissible 1458 B. The Opposing View: Durational Residency Requiremtents for Retail Marijuana Licenses Are Unconstitutional 1462 C. Another Question: Can Durational Residency Requirements for Retail Marijuana Licenses Be Challenged under the Dormant Commerce Clause Doctrine? 1465 III. Durational Residency Requirements for Retail Marijuana Licenses Are Unconstitutional and Should Be Abolished 1468 A. The Right to Travel and Sell Marijuana 1469 B. The Illegal Interstate Market: Retail Marijuana Licenses and the Dormant Commerce Clause Doctrine 1471 C. Alternatives to Durational Residency Requirements 1473 Conclusion 1474 INTRODUCTION

"We're the ones who fought for this.... Allowing people from outside the state is not benefitting Ohio or Ohioans or our unemployment." (1) The notion that one reaps what one sows has a long history and is prevalent in U.S. culture. (2) The case is no different with regard to legalizing marijuana; (3) the citizens who pushed for legalization want to reap the benefits themselves. (4)

Despite the continued federal prohibition, in 2012, Colorado and Washington became the first states to legalize recreational marijuana use. (5) Today, nine other states and the District of Columbia have joined Colorado and Washington in legalizing recreational marijuana. (6) One way these states prevent outsiders from free riding off the work of their citizens is by imposing durational residency requirements on retail marijuana licenses. (7)

Throughout history, states have imposed durational residency requirements, and courts have grappled with their constitutionality. (8) Recently, the Supreme Court struck down Tennessee's durational residency requirement for seeking a retail liquor license under the dormant Commerce Clause doctrine. (9) However, there are many differences between alcohol and recreational marijuana, such as the fact that state regulation of the former is explicitly authorized by the Constitution while the latter is subject to federal prohibition. (10) Therefore, the merits of a dormant Commerce Clause challenge to durational residency requirements for retail marijuana licenses are questionable. (11) In light of the Court's recent decision and recreational marijuana use's growing legalization (12) at the state level, the constitutionality of durational residency requirements for retail marijuana licenses warrants examination.

Part I of this Note provides a general background on durational residency requirements and how courts have approached them. Part I also examines the recent legalization of marijuana for recreational use by several states and how those states regulate their marijuana industries. Part II examines the different arguments for and against the constitutionality of durational residency requirements for retail marijuana licenses. Finally, Part III concludes that these durational residency requirements should be abolished because they impinge on the right to travel and violate the dormant Commerce Clause.

1. THE HISTORY OF DURATIONAL RESIDENCY REQUIREMENTS AND MARIJUANA

   While the legalization of recreational marijuana usage is a recent development, (13) the existence of state-imposed durational residency requirements can be traced back to before the Constitutional Convention. (14) To understand how courts will treat durational residency requirements for retail marijuana licenses, it is first necessary to examine how they have treated durational residency requirements in other contexts. Durational residency requirements "condition certain governmental benefits and privileges upon residence within a state or locality for a specified period of time." (15) People who have been in the state for the required amount of time qualify to receive the conditioned benefit and those who have not do not. (16) States have imposed durational residency requirements in an array of contexts, and the Supreme Court has applied different standards of review to determine their constitutionality. (17)

   This Part discusses several types of durational residency requirements and the growing trend of states legalizing marijuana for recreational use. First, Section I.A examines the Supreme Court jurisprudence regarding state-imposed durational residency requirements. Second, Section I.B examines state-imposed durational residency requirements in the context of retail liquor licenses. Finally, Section I.C discusses the recent legalization of recreational marijuana use by several states.

   1. The Right to Travel: Supreme Court Jurisprudence on State-Imposed Durational Residency Requirements

      The Supreme Court has treated state-imposed durational residency requirements differently depending on the requirement's context. Over time, the Court has applied a variety of rationales to either uphold or strike down durational residency requirements. The fundamental right to travel is a product of one of these rationales.

      In the 1960s, two states and the District of Columbia enacted statutes that denied public assistance to people who were not residents for a specified period. (18) The Supreme Court struck down the statutes in Shapiro v. Thompson. (19) The Court held that the statutes at issue created "two classes of needy resident families indistinguishable from each other," other than their length of residency, and that this denied new residents "equal protection of the laws" afforded by the Fourteenth Amendment. (20) The Court explained that the requirements "touch[] on the fundamental right of interstate movement." (21)

      This "fundamental right of interstate movement" is commonly known as the right to travel. (22) The Court "explicitly specified that it had 'no occasion to ascribe the source of this right to travel... to a particular constitutional provision.'" (23) According to the Court, it was enough that it had recognized the right to travel as a fundamental right in the past. (24)

      Shapiro was the first time the Court explicitly held that any impingement on a fundamental right triggers strict scrutiny. (25) Specifically referring to the right to travel, the Shapiro Court explained that under the strict scrutiny standard, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." (26) Finding that the interests the states asserted were either constitutionally impermissible (27) or not compelling enough (28) to withstand strict scrutiny, the Court struck down the statutes. (29) The Court subsequently used the Shapiro strict scrutiny framework as the basis of its analysis of durational residency requirements in other contexts that touched on the right to travel, including voting restrictions. (30)

      The Court broadened its right to travel jurisprudence in Dunn v. Blumstein. (31) There, the Court struck down Tennessee's one-year durational residency requirement for voting in state elections (32) as a violation of the Equal Protection Clause of the Fourteenth Amendment. (33) The Court applied strict scrutiny because the durational residency requirement impinged on the fundamental right to vote (34) and the fundamental right to travel. (35) In striking down the durational residency requirement, the Court found that it was "neither narrowly tailored to [the state's] interests, nor necessary to further compelling state interests." (36) Tennessee argued that the durational residency requirement at issue did not impinge on the right to travel because it was unlikely to actually deter travel. (37) Unconvinced, the Court held that "durational residency requirements constitute[] penalties on the right to travel whether or not the statute in question actually deter[s] interstate travel." (38) Thus, the durational residency requirements only needed to be capable of deterring but did not have to actually deter travel. (39)

      The Supreme Court again struck down a state-imposed durational residency requirement in Memorial Hospital v. Maricopa County. (40) This case involved an Arizona statute that imposed a durational residency requirement on free, non-emergency medical care. (41) Applying the Shapiro framework, the Court held that the durational residency requirement impinged on the fundamental right to travel (42) by creating "an 'invidious classification' which deprived newcomers to the state of 'the basic necessities of life.'" (43) The Court, therefore, applied strict scrutiny and held that the durational residency requirements at issue violated the Fourteenth Amendment's Equal Protection Clause. (44)

      Shapiro and its progeny establish that "strict scrutiny applies to any classification which serves to penalize" the right to travel. (45) However, the Court has indicated that not all durational residency requirements are per se unconstitutional. (46)

      Sosna v. Iowa (47) was the first case where the Supreme Court upheld a durational residency requirement. (48) The durational residency requirement at issue in this case limited access to divorce. (49) However, the Court did not apply the Shapiro framework here. (50) Writing for the majority, Justice William Rehnquist distinguished Sosna based on the fact that the durational residency requirement at issue could be "justified on grounds other than purely budgetary considerations or administrative...