Did Hailey, Idaho's three voter-passed marijuana initiatives (medical marijuana, hemp, lowest enforcement priority) hold up under Idaho law?

Plain-English summary

In 2007, voters in the small Wood River Valley city of Hailey, Idaho, passed three marijuana-related citizen initiatives: the Hailey Medical Marijuana Act, which would let "seriously ill" residents possess up to 35 grams of marijuana with a physician's recommendation; the Hailey Industrial Hemp Act, which would declare hemp cultivation a beneficial farming activity; and the Hailey Lowest Police Priority Act, which would direct the Hailey Police Department to make adult marijuana enforcement its lowest priority. The Hailey City Attorney, Ned Williamson, asked the Idaho AG which provisions of these three local laws were clearly unenforceable under Idaho law.

The Attorney General reached three conclusions. First, the medical-marijuana and industrial-hemp initiatives directly conflict with Idaho's drug laws. Possessing or using marijuana, hemp, or drug paraphernalia is a crime under Idaho Code §§ 37-2705, 37-2732, and 37-2734A. Idaho cities are creatures of the State (State v. Frederic (1916)), and Article XII, § 2 of the Idaho Constitution permits city regulations only "as are not in conflict with its charter or with the general laws." Because Initiatives 1 and 2 expressly allow what the State criminalizes, they are in direct conflict with state law and outside Hailey's constitutional authority to enact (Envirosafe Services v. Owyhee County (1987); Davidson v. Wright (2006)). The same Supremacy Clause analysis applies to federal drug law under Gonzales v. Raich (2005). Specific operational pieces of Initiative 1 also conflict with Idaho Code § 50-209 (city police shall arrest all offenders against state law) and § 50-208A (city attorneys shall prosecute state misdemeanors).

Second, the law-enforcement-priority initiative addresses a subject of administration, not legislation. Under City of Boise City v. Keep the Commandments Coalition (2006) and Weldon v. Bonner County Tax Coalition (1993), local initiatives can address subjects of legislative character but not subjects of administrative character. Setting "enforcement priorities" looks much more like a process or management decision than a "law" or "measure," so it likely is not an allowable subject for a citizen initiative.

Third, all three initiatives compel city officers to advocate publicly and through lobbyists for changes to state law to support the local ordinances' aims. That kind of compelled advocacy infringes the free-speech rights of the city officers under Article I, § 9 of the Idaho Constitution, as the Idaho Supreme Court held in Simpson v. Cenarrusa (1997). The right to free speech includes the right not to speak; absent a flagrant abuse, the government cannot compel speech.

The opinion identified clearly unlawful provisions but did not cover every problematic feature of the three initiatives. The Hailey City Attorney's office could use the analysis to decide which pieces could not be implemented at all and which might survive, on what basis, and at what risk.

Currency note

This opinion was issued in 2007. 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

Why couldn't Hailey legalize medical marijuana even by popular vote?

Under Article XII, § 2 of the Idaho Constitution, cities can enact local police, sanitary, and other regulations only if they are not in conflict with state law. State v. Frederic (1916) established that cities are creatures of the State and possess only the powers the State grants them. Idaho's drug laws (§§ 37-2705, 37-2732, 37-2734A) make possession and use of marijuana a crime statewide. A city ordinance that immunizes residents from criminal prosecution for the same conduct directly conflicts with state law and is invalid (Envirosafe v. Owyhee County (1987); Davidson v. Wright (2006), where Chief Justice Schroeder noted in concurrence that "if the initiative then passes, significant portions of it will clearly contravene state law and be invalid"). The same Supremacy Clause analysis applies to federal drug law under Gonzales v. Raich (2005), which upheld federal authority to prosecute even purely intrastate medical-marijuana use under the Controlled Substances Act.

What is the difference between a "legislative" subject and an "administrative" subject for a local initiative?

Idaho's local initiative power covers subjects of a legislative character (laws, measures, ordinances) but not subjects of an administrative character (operational, day-to-day implementation). The line is not bright. In Weldon v. Bonner County Tax Coalition (1993), a citizen group tried to use initiative and referendum to reject and replace a Bonner County budget process; the Idaho Supreme Court held that a budgeting process is not a "law" or a "measure," it is "merely the result of the statutory process set forth in the County Budget Law." Following City of Boise City v. Keep the Commandments Coalition (2006), the AG concluded that telling police what to enforce first is more about police management than enacting a new rule, so it likely is not an allowable subject for a citizen initiative.

Why does requiring city officers to lobby state legislators violate free speech?

Article I, § 9 of the Idaho Constitution protects free speech, and the Idaho Supreme Court in Simpson v. Cenarrusa (1997) held that compelling speech (there, requiring candidates to take a public position on term limits) violates that right. The right to speak includes the right not to speak. All three Hailey initiatives directed city officers, by official public declaration and through paid lobbyists, to advocate for changes to state law to support the local ordinances. Compelled advocacy of that kind, the AG concluded, is unconstitutional.

Did Hailey actually have to follow these initiatives after the AG opinion?

The AG opinion is advisory, not a court order. Practically, however, an unconstitutional or preempted ordinance is unenforceable: a Hailey police officer who refused to arrest a marijuana user citing the local initiative could be (and according to § 50-209 should be) overridden by state law. A district court would resolve any actual challenge. Whether Hailey amended, repealed, or quietly stopped enforcing the initiatives is a question for current city records.

Could Hailey have set police priorities through a non-initiative route?

Probably yes. The AG's concern was specifically about whether priorities could be set by ballot initiative, given that the initiative power is constrained to legislative subjects. The Hailey City Council could potentially direct policing priorities through normal budget and personnel decisions, subject to its general management authority, without using the initiative mechanism.

Background and statutory framework

Idaho's local initiative power lets citizens enact city or county legislation by direct vote without going through the city council or county commission. The constraint is constitutional: under Article XII, § 2, local regulations must not conflict with state law, and under the case law (Keep the Commandments, Weldon, Davidson v. Wright), the subject of the initiative must be legislative in character.

Idaho's drug laws sit in title 37, chapter 27 of the Idaho Code. Section 37-2705 schedules controlled substances, including marijuana. Section 37-2732 makes possession a crime. Section 37-2734A makes possession of drug paraphernalia a crime. There is no state-level medical marijuana exemption.

Federal drug law operates in parallel under the Controlled Substances Act. Gonzales v. Raich (2005) confirmed Congress's commerce power to reach intrastate medical marijuana use, holding that even California's Compassionate Use Act could not displace federal criminal authority. The same logic applies to local Idaho ordinances.

City police authority comes from Idaho Code § 50-209, which gives city policemen the power to "arrest all offenders against the law of the state." Idaho Code § 50-208A requires city attorneys to prosecute state misdemeanors committed within municipal limits. A local initiative that directs city police to ignore state crimes, or directs the city attorney to dismiss state misdemeanor charges, conflicts directly with these statutes.

The compelled-speech analysis comes from Article I, § 9 of the Idaho Constitution and Simpson v. Cenarrusa (1997). The Idaho Supreme Court has treated compelled speech and content-restricting government action under the same general framework: absent a flagrant abuse of the right being protected against, the government cannot compel speech.

Citations

U.S. Constitution: art. VI, cl. 2.

Idaho Constitution: art. I, § 9; art. XII, § 2.

Idaho Code: §§ 37-2705, 37-2732, 37-2734A, 50-208A, 50-209.

U.S. Supreme Court: Gonzales v. Raich, 545 U.S. 1 (2005).

Idaho cases: Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980); City of Boise City v. Keep the Commandments Coalition, 143 Idaho 254, 141 P.3d 1123 (2006); Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006); Envirosafe Services of Idaho v. Owyhee County, 112 Idaho 687, 735 P.2d 998 (1987); Simpson v. Cenarrusa, 130 Idaho 609, 944 P.2d 1372 (1997); State v. Barsness, 102 Idaho 210, 628 P.2d 1044 (1981); State v. Frederic, 28 Idaho 709, 155 P. 977 (1916); Weldon v. Bonner County Tax Coalition, 124 Idaho 31, 855 P.2d 868 (1993).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion07-2.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION NO. 07-2

To: Mr. Ned C. Williamson
Hailey City Attorney
115 Second Avenue S.
Hailey, ID 83333

Per Request for Attorney General's Opinion

You have requested an Attorney General's Opinion regarding three initiatives recently passed by Hailey voters concerning the possession and use of marijuana. This opinion addresses the question you have presented.

QUESTION PRESENTED

Are any of the provisions of the three "marijuana" initiatives recently passed by Hailey voters clearly illegal under Idaho law?

CONCLUSION

The major provisions of Initiative 1 (medical marijuana) and Initiative 2 (hemp) conflict with state law and are invalid. The major provision of Initiative 3 (law enforcement priorities) is administrative rather than legislative in nature and is likely not an allowable subject for an initiative and therefore invalid. The observations contained in this letter identify the clearly unlawful provisions of these initiatives and do not include all of their problematic consequences.

ANALYSIS

A. Summary of the Initiatives

Initiative 1 is entitled "The Hailey Medical Marijuana Act." It allows persons described as "seriously ill citizens" to use up to 35 grams of marijuana for medicinal purposes upon the "recommendation" of a physician. It immunizes persons who possess and use marijuana and marijuana paraphernalia from arrest and prosecution and restricts the discretion of municipal law enforcement to enforce state drug laws. Additionally, it instructs city officers to advocate, by official public declaration and through lobbyists, for changes to state law and establishes a Community Oversight Committee, whose membership includes a representative of the Liberty Lobby of Idaho.

Initiative 2 is entitled "The Hailey Industrial Hemp Act." It declares that the growth and cultivation of industrial hemp is a positive and beneficial farming activity and that the legalization of such activity by the state and the federal government is favored. It contains provisions for advocacy and establishment of the Community Oversight Committee similar to Initiative 1.

Initiative 3 is entitled "The Hailey Lowest Police Priority Act." It directs that Hailey law enforcement officers make enforcement of marijuana laws, where the drug is intended for adult personal use, the city's lowest law enforcement priority, with some exceptions. It prohibits Hailey law enforcement officers from accepting or renewing formal deputizing or commissioning by federal law enforcement agencies if the deputizing or commissioning will include investigating, citing, arresting, or seizing property from adult marijuana users. As in Initiatives 1 and 2, it contains provisions for advocacy and establishment of the Community Oversight Committee.

B. Issues

1. Conflict With State Law

Cities are municipal corporations that are subdivisions of the State. "A municipal corporation possesses only such powers as the state confers upon it, subject to addition or diminution at its discretion." State v. Frederic, 28 Idaho 709, 711, 155 P. 977, 979 (1916). Article XII, § 2 of the Idaho Constitution states that:

Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.

(Emphasis added.) A local regulation may conflict with a state law in two ways:

1. The local regulation may be in direct conflict by "expressly allowing what the state disallows, and vice versa." Envirosafe Services of Idaho v. Owyhee County, 112 Idaho 687, 689, 735 P.2d 998, 1000 (1987); see also State v. Barsness, 102 Idaho 210, 628 P.2d 1044 (1981).

2. A conflict may be inferred where the state has intended to fully occupy or preempt a particular area of regulation to the exclusion of local governmental entities. See Envirosafe, 112 Idaho at 689, 735 P.2d at 1000.

Here, we need not examine the question of implied preemption, since conflict with state law is apparent. It is a criminal act to possess or use marijuana, hemp, or drug paraphernalia. Idaho Code §§ 37-2705, 37-2732 and 37-2734A. Therefore, the provisions of Initiatives 1 and 2, which immunize persons from prosecution for any of these acts, thus allowing what the state disallows, are in conflict with state law and outside of the constitutional powers of the City of Hailey to enact. See Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006), holding that the Sun Valley City Clerk could review an initiative for proper form but not for constitutionality. Chief Justice Schroeder wrote, in a special concurrence that "[i]f enough signatures are gathered to qualify the initiative for the ballot, and if the initiative then passes, significant portions of it will clearly contravene state law and be invalid." See also Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), wherein the United States Supreme Court held that the Supremacy Clause of the United States Constitution meant that California's medical marijuana law (the Compassionate Use Act) could not limit federal law which, like Idaho, also prohibits the use of marijuana and hemp. U.S. Const. art. VI, cl. 2.

Additionally, Idaho Code § 50-209 empowers the police of every city to "arrest all offenders against the law of the state ...." The provision of Initiative 1 that restricts enforcement of state law by summons only is in direct conflict with this statute and therefore invalid. Further, Idaho Code § 50-208A requires city attorneys to prosecute state misdemeanors committed within the municipal limits. Consequently, the provision of Initiative 1 that directs the municipal prosecuting attorney to dismiss certain misdemeanor drug charges is also in direct conflict with state law and invalid.

2. Free Speech

The Idaho Constitution guarantees that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty." Idaho Const. art. I, § 9. The right to free speech includes the right not to speak. In Simpson v. Cenarrusa, 130 Idaho 609, 944 P.2d 1372 (1997), the Idaho Supreme Court declared that a proposition that required candidates for elective office to take a stand on the issue of term limits was an unconstitutional infringement of free speech. Absent a flagrant abuse of the right, the government cannot control speech. All three of Hailey's initiatives instruct city officers to advocate for changes to state law to support the goals and implementation of each ordinance. Compelling this advocacy is clearly an infringement upon the free speech rights of city officers, rendering these provisions unconstitutional.

3. Legislation and Administration

In the case City of Boise City v. Keep the Commandments Coalition, 143 Idaho 254, 141 P.3d 1123 (2006), the Idaho Supreme Court stated that, while subjects of a legislative nature were allowable for local initiatives, subjects of an administrative nature were not. While it noted that there was "no bright line rule" to distinguish between legislative and administrative subjects, it did cite one of its prior opinions: Weldon v. Bonner County Tax Coalition, 124 Idaho 31, 855 P.2d 868 (1993). In Weldon, a coalition of citizens sought, through referendum and initiative, to reject a Bonner County budget decision and implement a new county budget process. The court held that the coalition did not seek to reject or propose a law (e.g., a measure passed by the Board of County Commissioners) but rather a process. It stated that "[t]he county budgeting process, which results in an ad valorem levy, is not an 'act' or 'measure,' but instead it is merely the result of the statutory process set forth in the County Budget Law... ." Applying the precedent of Keep the Commandments and Weldon to Initiative 3, it is likely that a court would find "enforcement priorities" a matter of administration rather than legislation and therefore not an allowable subject for an initiative.

DATED this 20th day December, 2007.

LAWRENCE G. WASDEN
Attorney General

Analysis by:
MITCHELL E. TORYANSKI
Deputy Attorney General