Could Arkansas legislators violate federal law by voting to implement the state's medical marijuana amendment?

Plain-English summary

Senator Jason Rapert asked whether Arkansas legislators would violate federal law by voting to implement the Arkansas Medical Marijuana Amendment of 2016 (AMMA), whether they should refrain from voting, and whether a legislator could seek federal-court relief from having to vote. Attorney General Leslie Rutledge attached and incorporated her earlier Opinion 2016-119 for the first two questions. She declined to answer the standing question because it sought advice about a possible lawsuit.

The attached opinion says the AMMA's plain terms required the General Assembly to establish a fund and appropriate revenues generated under the amendment. Rutledge could not decide whether implementation violated federal law in an official state-law opinion. She noted that the federal Controlled Substances Act had no medical-marijuana exception and that state law would not shield a person from federal prosecution. She nevertheless thought prosecution of state officials for implementing the AMMA more likely than not to fail. As a practical matter, she suspected people actually possessing and distributing marijuana were more likely to face federal prosecution than lawmakers or executive officials implementing the amendment.

Currency note

This opinion was issued in 2017. Check current state and federal law before using it to assess a present legal obligation or risk.

Common questions

Q: Did the AG say legislators had to fund the medical marijuana program?
A: The attached Opinion 2016-119 says the AMMA's plain terms required the General Assembly to establish the Medical Marijuana Commission Fund and appropriate revenues arising under the amendment. It says the legislature lacked discretion to skip those actions.

Q: Did the AG decide whether an implementing vote violated federal law?
A: No. She said that interpreting and applying federal law lay outside the scope of her official opinion. The attached opinion discussed possible federal exposure but did not resolve that question.

Q: What did the AG say about the likelihood of prosecuting state officials?
A: She said it was impossible to rule out federal prosecution as an abstract matter, but believed such a prosecution would more likely than not fail. She suspected those possessing or distributing marijuana were more likely targets than state officials carrying out the AMMA. The opinion cites no Justice Department enforcement memorandum.

Q: Did the AG answer whether a legislator could sue in federal court?
A: No. She characterized that as legal advice on a procedural issue in anticipation of litigation and declined to opine on it.

Background and statutory framework

The AMMA imposed certain funding and appropriation duties on Arkansas's General Assembly, according to the attached Opinion 2016-119. The federal Controlled Substances Act prohibited possession and distribution of marijuana without a medical-use exception. Rutledge distinguished the state-law duty she could interpret from federal-law liability that she could not decide in an official opinion.

Citations

• Arkansas Medical Marijuana Amendment of 2016
• Federal Controlled Substances Act
• Op. Att'y Gen. 2016-119 (attached and incorporated)

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-019
March 6, 2017
The Honorable Jason Rapert
State Senator
P.O. Box 10388
Conway, AR 72034
Dear Senator Rapert:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for my opinion on the following questions concerning implementation of the Arkansas Medical Marijuana Amendment of 2016 ("AMMA"), which voters approved at the November, 2016 general election:

1) Is it your opinion that if members of the General Assembly affirmatively vote on legislation that implements the Arkansas Medical Marijuana Amendment they are, in fact, violating federal law?

2) If it is your opinion that an affirmative vote to implement the Arkansas Medical Marijuana Amendment is a violation of federal law, is it your opinion that members refrain from casting such votes to ensure they do not violate their oaths of office?

3) Is it your opinion that a member of the General Assembly, put in this untenable position, would have standing in federal court, in one's official capacity, to seek relief from the requirement of having to cast a vote on legislation that would result in the violation of a federal law?

RESPONSE

Please find the attached Attorney General Opinion No. 2016-119, which I believe addresses to the full extent I can your first two questions.

Your third question regarding a legislator's possible standing to seek judicial relief from voting on legislation to implement the AMMA is more in the nature of a request for legal advice on a procedural issue in anticipation of litigation. I cannot, in the context of an official opinion, give legal advice for a particular case or potential case. I must therefore respectfully decline to opine on that procedural question.

Sincerely,
LESLIE RUTLEDGE
Attorney General

Enclosure

Opinion No. 2016-119
January 24, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Douglas House
State Representative
8923 Bridge Creek Road, CATO
North Little Rock, AR 72120-9469
Dear Representative House:

This is in response to your request for an opinion concerning the Arkansas Medical Marijuana Amendment of 2016, which voters approved at the November 2016 general election. You ask in this regard:

1. Are members of the Legislature obligated, under the terms of the Marijuana Amendment, to take certain actions that would facilitate the manufacture and delivery of cannabis in violation of the laws of the United States?

2. Would voting to pass laws and regulations to carry out the purposes of the Marijuana Amendment, or the execution of such laws and regulations by the executive, constitute a violation of such laws of the United States? Of particular concern are the statutes prohibiting manufacture and distribution, conspiracy, and the Racketeer Influenced Corrupt Organization statutes [and] . . . federal tax statutes and Food and Drug Administration laws that bear on the subject of cannabis, as well as others [that] may be relevant to my inquiry.

RESPONSE

In response to your first question, the actions required of the General Assembly under the Arkansas Medical Marijuana Amendment of 2016 ("AMMA" or "Amendment") appear to be mandatory under the plain terms of the Amendment. More specifically, based on the AMMA's plain terms, it is my opinion that the General Assembly lacks discretion to decide whether to establish the Medical Marijuana Commission Fund or appropriate revenues arising under the Amendment. I am unable to opine on your second question, as it depends upon the interpretation and application of federal law.

DISCUSSION

Question 1: Are members of the Legislature obligated, under the terms of the Marijuana Amendment, to take certain actions that would facilitate the manufacture and delivery of cannabis in violation of the laws of the United States?

The General Assembly is obligated under the plain terms of the Arkansas Medical Marijuana Amendment of 2016 to create a fund to defray certain administrative and regulatory costs under the AMMA. The General Assembly will also be required to appropriate state sales tax revenues and other revenues generated under the AMMA, for proper distribution to state agencies charged with administering various aspects of the Amendment. The AMMA authorizes the General Assembly to enact additional appropriations, depending upon the availability of other funds. Based on the Amendment's plain terms, however, the General Assembly lacks discretion to decide whether to establish the Medical Marijuana Commission Fund or appropriate revenues arising under the Amendment.

Question 2: Would voting to pass laws and regulations to carry out the purposes of the Marijuana Amendment, or the execution of such laws and regulations by the executive, constitute a violation of such laws of the United States? Of particular concern are the statutes prohibiting manufacture and distribution, conspiracy, and the Racketeer Influenced Corrupt Organization statutes [and] . . . federal tax statutes and Food and Drug Administration laws that bear on the subject of cannabis, as well as others [that] may be relevant to my inquiry.

The resolution of this question depends upon the interpretation and application of federal law, which are matters falling outside the scope of an opinion from this office.

The federal Controlled Substances Act ("CSA") prohibits the possession and distribution of marijuana; and there is no exception for marijuana used for medical purposes. The AMMA thus cannot act as a shield to federal criminal prosecution under the CSA. As an abstract legal matter, because federal law prohibits the possession and distribution of marijuana and there is no exception for medical marijuana, it is impossible to definitively say that no state government official or employee could be subject to prosecution for actions required by the AMMA. Such decisions lie in the discretion of federal officials. Nevertheless, I believe it is more likely than not that such a prosecution would fail. At least one state's high court has rejected an argument that public employees could be liable as "aiders or abettors" by complying with their obligations under their state's medical marijuana law.

Moreover, as a practical matter, I suspect that those actually possessing and distributing marijuana are the ones more likely to face the prospect of federal prosecution, as opposed to either state lawmakers who must enact laws in accordance with the AMMA or executive-branch officials who must enforce the Amendment.

I regret that I cannot provide a more definitive answer to your question. However, the foregoing will hopefully be of some guidance. Elected officials in other states have requested letters from U.S. Attorneys in their districts for guidance on the question of potential criminal liability of individuals who implement their medical marijuana laws.

Sincerely,
LESLIE RUTLEDGE
Attorney General