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

Plain-English summary

Senator Jason Rapert asked three questions following voter approval of the Arkansas Medical Marijuana Amendment (AMMA) in November 2016: (1) whether legislators voting to implement the AMMA were violating federal law; (2) whether they should refrain from such votes to honor their oaths of office; and (3) whether a legislator would have federal-court standing to seek relief from being required to vote on such legislation.

Attorney General Leslie Rutledge handled the request by attaching and incorporating her earlier opinion (Op. Att'y Gen. 2016-119), which had already addressed the same substantive ground in response to Representative Douglas House. She declined to opine separately on Question 3 because it was a request for legal advice on a procedural issue in anticipation of litigation, which is outside the scope of an AG opinion.

What Op. 2016-119 said:

• The AMMA's mandate. The plain terms of the AMMA required the General Assembly to create a Medical Marijuana Commission Fund and a Vocational and Technical Training Special Revenue Fund, and to appropriate state sales tax revenues and other revenues for distribution to administering agencies. The legislature did not have discretion to skip these tasks.

• The federal question. The AG could not address whether implementing the AMMA violated federal law because that was a federal-law question outside her statutory authority under Ark. Code Ann. § 25-17-706. She did note that the federal Controlled Substances Act made no medical marijuana exception (citing Gonzalez v. Raich) and that compliance with state law was no defense to federal prosecution (citing Rosenthal).

• The practical risk to legislators. As an abstract legal matter, the AG said legislators could not be definitively shielded from federal prosecution. But she suggested prosecution of state officials was unlikely. She referenced 2009, 2011, and 2013 DOJ memoranda that had narrowed federal enforcement to large-scale commercial cultivation and trafficking, and cited an Arizona Supreme Court decision (White County v. Maricopa County) rejecting an "aiding and abetting" theory against Arizona public employees implementing that state's medical marijuana law.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did the AG refuse to answer the standing question?
A: Because AG opinions are not advice for prospective litigation. Standing in federal court is a federal-law question that depends on the specific facts of a planned lawsuit. The AG explained that she could not "in the context of an official opinion, give legal advice for a particular case or potential case." Whether a state legislator would have standing to sue to avoid voting on AMMA implementation involved Article III injury, ripeness, and political-question doctrine, all of which are highly fact-bound.

Q: What did the AMMA's mandate look like in concrete terms?
A: Section 17(b)(4)(B) required creation of the Medical Marijuana Commission Fund. Section 17(b)(6) required creation of a Vocational and Technical Training Special Revenue Fund for grants to technical institutes and vo-tech schools. Sections 17 and 18 required the appropriation of state sales tax revenues and other AMMA-generated revenues to the agencies administering the program. Section 18(a)(4), (b)(4), and (c)(4) authorized but did not require additional appropriations from other available funds.

Q: Was federal prosecution actually a realistic concern?
A: The AG suggested no, as a practical matter. The 2013 DOJ memorandum (the Cole memo) directed federal prosecutors to focus on enforcement priorities like preventing distribution to minors, preventing diversion across state lines, and preventing involvement of organized crime. State officials implementing a regulatory framework were not on the priority list. The Arizona Supreme Court had explicitly rejected an aiding-and-abetting theory against Arizona public employees in White County v. Maricopa County (2016).

Q: Could a legislator nonetheless be prosecuted federally?
A: As an abstract legal matter, the AG could not rule it out. The Controlled Substances Act on its face prohibited possession and distribution, with no medical exception (Raich; Rosenthal). State law could not preempt federal law. The AG's practical observation was that DOJ enforcement priorities pointed away from prosecuting state officials, but those priorities could change with administrations.

Q: Why did the AG decline to address the federal-law questions head-on?
A: Ark. Code Ann. § 25-17-706 limited the AG's official-opinion authority to questions of state law. Federal-law questions are outside the AG's official advisory role. The AG pointed Senator Rapert toward the U.S. Attorney's offices for the Eastern and Western Districts of Arkansas if he wanted federal-law guidance.

Q: What was the underlying tension Senator Rapert raised?
A: His framing was that voting to implement a state law that facilitated activity prohibited by federal law might conflict with a legislator's oath to uphold the U.S. Constitution. The AG did not rule on this constitutional argument, again because of the state-law boundary on her opinion authority. She implicitly suggested that the AMMA-mandated votes were nonetheless mandatory under state law, leaving the legislator to wrestle with the conflict on their own.

Background and statutory framework

The Arkansas Medical Marijuana Amendment (Issue 6, 2016) was a constitutional initiative that established a regulated medical-marijuana program with cultivation licensure, dispensary licensure, and patient registration. By embedding the program in the constitution rather than in statute, voters made the framework binding on the General Assembly: the legislature could pass implementing legislation but could not refuse to fund or appropriate.

The federal-law tension was real but managed through DOJ guidance throughout the 2009-2017 period. Federal prosecutors generally deferred to state regulatory frameworks when those frameworks were robust and effective. State officials implementing those frameworks had not been the targets of federal prosecution.

The opinion is a useful artifact for understanding how the AG handled questions on the boundary between state and federal law during the early implementation of Arkansas's medical-marijuana program. The pattern, declining federal-law analysis while affirming the state-law mandate, was consistent across this and the related Op. 2016-119.

Citations

• AMMA (Arkansas Medical Marijuana Amendment of 2016)
• 21 U.S.C. §§ 801-904 (Controlled Substances Act)
• Ark. Code Ann. § 25-17-706
• Gonzalez v. Raich, 545 U.S. 1 (2005)
• United States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006)
• White County v. Maricopa County, CV 2012-053585 (Ariz. S. Ct. Dec. 20, 2016)
• Op. Att'y Gen. 2016-119 (incorporated)
• DOJ Memo, "Guidance Regarding Marijuana Enforcement" (Aug. 29, 2013) (Cole Memo)
• DOJ Memo on Ogden Memo (Oct. 19, 2009)

Source

• Landing page: 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