What did Idaho's AG flag about the 2012 medical marijuana ballot initiative before it could go on the ballot?

Plain-English summary

The Idaho Medical Marijuana Act, filed as an initiative petition with Secretary of State Ben Ysursa on August 31, 2012, would have created a Department of Health and Welfare-run registry system for patients, caregivers, growers, and alternative treatment centers. Under Idaho Code § 34-1809, the AG's office had a strict statutory window to review the petition for legality. Attorney General Lawrence Wasden's certificate flagged several issues without taking a position on the underlying policy.

The biggest issue was federal preemption. Even if Idaho voters passed the Act, the federal Controlled Substances Act would still treat cultivation and distribution of marijuana as a federal crime. The opinion cited U.S. v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), where the U.S. Supreme Court rejected a "medical necessity" defense under federal law, and the "separate sovereigns" doctrine from United States v. Wheeler, 435 U.S. 313 (1978). Federal housing and employment statutes (Fair Housing Act, Americans with Disabilities Act, Rehabilitation Act) all expressly exclude illegal drug use, so the initiative's anti-discrimination provisions could not override those federal exclusions. Assenberg v. Anacortes Housing Authority (9th Cir. 2008) and Emerald Steel Fabricators v. Bureau of Labor and Industries (Or. 2010) backed the same conclusion.

The opinion also raised a single-subject concern under Article III, section 16 of the Idaho Constitution, given the initiative's mix of registration, criminal protections, anti-discrimination provisions, fees, and committee creation. Other flagged problems included a "presumption" provision that didn't say whether it was rebuttable or applied in criminal or civil proceedings, an apparent attempt to bind the legislature's plenary fiscal authority, an unprecedented restriction limiting committee membership to medical-marijuana proponents (a possible First Amendment problem), and an outdated claim that NAAG endorsed medical marijuana. NAAG had passed a 1983 resolution that expired in 1987 and at the time of the certificate took no position. Several internal statute cross-references in the proposed code sections were wrong, and there were grammatical errors that the petitioners would need to fix.

Currency note

This opinion was issued in 2012. 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.

Background and statutory framework

Under Idaho Code § 34-1809, after an initiative or referendum petition is filed, the Attorney General has a brief window to review the proposal and issue a "certificate of review" with advisory comments. The recommendations are non-binding, the petitioners can accept or reject any of them, and the AG offers no view on the policy choices in the petition. The certificate's role is to flag legal problems, suggest drafting fixes, and pave the way for the AG's preparation of short and long ballot titles.

The medical marijuana initiative reviewed here was a sweeping rewrite of state drug law. It would have created a comprehensive registration system, defined a class of cardholders (patients, caregivers, growers, treatment-center agents), and shielded them from arrest and prosecution under state law. The certificate's federal-preemption analysis was the most consequential observation, because it underscored that even with passage, cardholders would face continuing federal exposure.

Common questions

Q: Did this initiative end up on the ballot?
A: No. This was the first of several attempts; subsequent petitions in 2013 and 2015 went through the same review process. Idaho did not adopt a medical marijuana program by initiative in this period.

Q: Could the legislature later restrict how fees collected under the Act would be spent?
A: Yes. The certificate noted that proposed § 39-4716, even though it tried to dedicate fees to a specific purpose, could not bind the legislature's plenary fiscal power under Article VII, sections 11, 13, and 16 of the Idaho Constitution.

Q: What did the AG mean by the "single-subject" concern?
A: Article III, section 16 of the Idaho Constitution requires every act to embrace only one subject and matters connected to it. The certificate observed that the initiative bundled registration, criminal protections, anti-discrimination rules, fee provisions, and committee creation. A challenger could argue voters were not given a clean choice on a single question.

Q: Why was the committee composition flagged?
A: Proposed section 39-4717 limited Medical Marijuana Oversight Committee membership to "cardholders, or proponents of the legal availability of medical marijuana." The certificate noted this was unprecedented and likely vulnerable to a free-speech challenge for excluding viewpoints contrary to the proponents.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (initiative review process)
- Idaho Constitution, Article III, section 16 (single-subject rule)
- Idaho Constitution, Article VII, sections 11, 13, 16 (legislative fiscal power)
- 21 U.S.C. § 801 et seq. (Controlled Substances Act)
- 42 U.S.C. § 3602(h) (FHA drug exclusion)
- 42 U.S.C. § 12210(a) (ADA drug exclusion)
- 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act drug exclusion)

Cases:
- United States v. Wheeler, 435 U.S. 313 (1978) (U.S. Supreme Court)
- Bartkus v. Illinois, 359 U.S. 121 (1959) (U.S. Supreme Court)
- Abbate v. United States, 359 U.S. 187 (1959) (U.S. Supreme Court)
- Moore v. Illinois, 55 U.S. (14 How.) 13 (1852) (U.S. Supreme Court)
- State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987) (Idaho Supreme Court)
- U.S. v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) (U.S. Supreme Court)
- Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (unpublished)
- Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007)
- Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010) (Oregon Supreme Court)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C092812.pdf

Original opinion text

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

September 28, 2012

The Honorable Ben Ysursa
Idaho Secretary of State
VIA HAN D DELIVERY

Re:

Certificate of Review
Proposed Initiative Related to Legalization of Medical Use of Marijuana

Dear Secretary of State Ysursa:
An initiative petition was filed with your office on August 31,2012. Pursuant
to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the
following advisory comments. Given the strict statutory timeframe within which this
office must review the petition, our review can only isolate areas of concern and
cannot provide in-depth analysis of each issue that may present problems. Further,
under the review statute, the Attorney General's recommendations are "advisory
only." The petitioners are free to "accept or reject them in whole or in part." Due to
the available resources and limited time for performing the review, we did not
communicate directly with the petitioner as part of the review process. The opinions
expressed in this review are only those that may affect the legality of the initiative.
This office offers no opinion with regard to the policy issues raised by the proposed
initiative.
BALLOT TITLES

Following the filing of the proposed Initiative, this office will prepare short and
long ballot titles. The ballot titles must impartially and succinctly state the purpose of
the measure without being argumentative and without creating prejudice for or
against the measure. While our office prepares titles for the Initiative, petitioners
may submit proposed titles for consideration. Any proposed titles should be
consistent with the standard set forth above.

P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suit 210

The Honorable Ben Ysursa
September 28,2012
Page 2 of 12
MATTERS OF SUBSTANTIVE IMPORT

A.

Summary of the Initiative

The proposed initiative ("initiative) which is self-titled the "Idaho Medical
Marijuana Act," declares that persons engaged in the use, possession, manufacture,
sale, and/or distribution of marijuana to persons suffering from debilitating medical
conditions, as authorized by the procedures established in the Initiative, are
protected from arrest, prosecution, property forfeiture, and criminal and other
penalties under Idaho law. A summary of the Initiative's provisions, tentatively
denominated as Idaho Code § 39-4700, et seq., begins with its purpose, which is:
THEREFORE the purpose of this chapter is to protect from arrest,
prosecution, property forfeiture, and criminal and other penalties, those
patients who use marijuana to alleviate suffering from debilitating
medical conditions, as well as their physicians, primary caregivers and
those who are authorized to produce marijuana for medical purposes
and to facilitate the availability of marijuana in Idaho for legal medical
use.
Prop. I.C. § 39-4702. 1
The Initiative authorizes the Idaho Department of Health and Welfare
("Department") to "establish a registry of qualifying patients, their primary caregivers,
their designated growers and alternati~e treatment centers." Prop. I.C. § 394704(1). The Initiative allows: (1) qualifying patients ("patients") to possess up to
three ounces of marijuana for medical purposes, (2) primary caregivers
("caregivers") to assist qualifying patients' medical use of marijuana, (3) designated
growers ("growers") to grow marijuana for up to six qualifying patients at "marijuana
grow sites," and (4) alternative treatment centers ("Centers") to grow, harvest,
process, display, and supply marijuana to patients or their caregivers. Prop. I.C. §§
39-4703, 39-4704, 39-4708.
The Department is required to issue "registry
identification cards," valid for one year, to patients, caregivers, growers, and Center
agents (Le., officers, board members, and employees) whose applications for such
cards are approved. Prop. I.C. §§ 39-4703(1), 39-4704(1), 39-4709(2).
To be a patient, the patient must have a "bona fide physician-patient
relationship," and the patient's primary care physiCian must certify that the patient
"may receive therapeutic or palliative benefit from the medical use of marijuana to
treat or alleviate the patient's debilitating medical condition or symptoms associated
with the debilitating medical condition[.]" Prop. I.C. § 39-4703(2), (4), (20). The

1

References to "proposed" I.C. § 39-4700, et seq., will read, "Prop. I.C. § 39-4700," etc.

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The Honorable Ben Ysursa
September 28,2012
Page 3 of 12
physician must have "completed a full assessment of the . .. patient's current
medical condition and past twelve (12) month medical history, including a personal
physical examination." Prop. I.C. § 39-4703(2). Minors are also entitled to be
issued registry identification cards (impliedly) as patients under certain criteria.
Prop. I.C. § 39-4704(17).
Caregivers and growers must be at least 18 years old, cannot be on felony
probation, parole, or misdemeanor probation, and cannot have been "convicted of a
felony drug offense, with the exception of medical use, production and rossession of
marijuana that would have been covered by this act had it been law[.]" Prop. I.C. §
39-4703(10)(d), (19)(d). Additionally, "felony drug offense" does not include "[o]ne
(1) offense for which the sentence, including any term of probation, incarceration or
supervised release, was completed five (5) or more years earlier[.]" Prop. I.C. § 394703(9)(a). Center agents cannot have been convicted of a felony drug offense and
must be at least 21 years old. Prop. I.C. §§ 39-4703(1), 39-4709(4). A denial by the
Department of an application or renewal request for a registry identification card
based on falsified information or a previous card revocation "may be a final agency
decision" subject to the provisions of the Idaho Administrative Procedure Act,
otherwise the applicant has ten days to appeal a denial to the Department. Prop.
I.C. § 39-4710(8), (9).
The Department is required to establish rules for a "marijuana grow site
registration system" to authorize production of marijuana by patients, caregivers,
and growers who have been issued a registry identification card. Prop. I.C. §§ 394703(3), 39-4704(4). Patients, caregivers, and growers may possess three ounces
or less of "usable marijuana" and twelve or fewer marijuana plants (up to four
mature, four immature, and four seedlings). Prop. I.C. § 39-4706(1). All growers,
whether a patient, caregiver, or mere "grower," "must contain all marijuana plants in
an enclosed, locked facility," which "means a closet, room, greenhouse, fenced area
or other enclosed area equipped with locks or other security devices that permit
access only by a cardholder." Prop. I.C. §§ 39-4703(8), 39-4704(8). A patient does
not need to have an affiliated grower, caregiver, or Center to legally use marijuana a patient may register as a grower. Prop. I.C. § 39-4704(14). Prop I.C. § 394706(4)(a) states that "[p]ossession as a result of excess above (3) three ounces of
usable marijuana that has been cured, and manicured to be taken to an alternative
treatment center is allowed." Any "excess" marijuana, up to one pound, harvested
by a grower must be taken to a Center within three weeks of harvesting, and the
grower will be reimbursed for the excess only "for proven legitimate growing costs,
such as electricity and water." Prop. I.C. § 39-4706(4)(a).

Whether a prior felony drug offense is excepted because it would have fallen under the proposed Act's
protections if the Act had been in effect is a matter that would be subject to litigation.

2

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The Honorable Ben Ysursa
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The Department is authorized to accept application from entities for permits to
operate as Alternative Treatment Centers, which are to be non-profit entities. Prop.
I.C. § 39-4708. Centers are authorized to:
Acquire a reasonable initial and ongoing inventory, as determined by
the department, of usable marijuana, or marijuana seeds or seedlings
and any apparatus, possess, cultivate, plant, grow, harvest, process,
display, manufacture, deliver, transfer, transport, distribute, supply, sell
or dispense marijuana, or related supplies to qualifying patients or their
primary caregivers who are registered with the department pursuant to
Section 39-4704, Idaho Code.
Prop. I.C. § 39-4708(1). The Department is authorized to charge fees for Center
permits every two years, and is mandated to adopt rules for Centers to: document
deliveries and pick-ups of marijuana for patients; monitor, oversee, and investigate
"all activities performed by an alternative treatment center;" and, ensure 24-hour
security for their locations and delivery methods. Prop. I.C. § 39-4708(9). Centers
are allowed to dispense no more than three ounces of marijuana to a patient (or
affiliated caregiver) in any 14 day period, and charge patients and caregivers for the
"reasonable costs associated with the production and distribution of marijuana for
the cardholder." Prop. I.C. §§ 39-4708(8), 39-4714. The Initiative requires Centers
to "determine the grade and quality [of marijuana] and test for mold, pesticides, and
other contaminates[,]" which may be done at the Center or by sending the marijuana
to be tested to an independent lab. Prop. I.C. § 39-4714. Center "agents" must be
registered with the Department before working at a Center, and may obtain a
§ 39-4709(2).
registry identification card. Prop. I.C.
The Initiative mandates constant updating of information pertinent to the
issuance of registration identification cards by patients, caregivers, growers, and
Center agents. Prop. I.C. § 39-4704, et seq. The Department is required to
maintain a "list of the persons to whom it has issued registry cards," which, along
with "information contained in any application form or accompanying or supporting
document, shall be confidential[,]" the only exceptions being: (a) use by Department
employees as is necessary to perform official duties, and (b) use by state and local
law enforcement agencies "only as necessary to verify that a person who is engaged
in the suspected or alleged medical use of marijuana is lawful [sic] in possession of
a registry identification card." Prop. I.C. § 39-4704(11). Unlawful disclosure of
registry identification card information constitutes a misdemeanor, punishable for not
more than six months in jail, a $1,000 fine, or both. Prop. I.C. § 39-4704(12).
Within 120 days of the Act's enactment, the Director of the Department
("Director") is required to appoint between seven and thirteen persons (at least one
person from each of the seven Department regions of the state) to serve on a
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The Honorable Ben Ysursa
September 28,2012
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Medical Marijuana Oversight Committee ("Committee"). Prop. I.C. § 39-4717. The
Committee is required to have "at least one physician ... who recommends medical
marijuana to some of his or her patientsL]" and all other members "shall be
cardholders, or proponents of the legal availability of medical marijuana." Id. The
Committee is mandated to meet at least four times each year in public, and provide
recommendations to ensure proper implementation of the Act, as well as report at
least annually to the Department on the implementation of the Act and ongoing
needs. Id. The Committee will "have the power to promulgate rules and regulations
not inconsistent with [the Act] to govern its own conduct and public meetings." Id.
Also within 120 days of the Act's enactment, the Department must establish a
"verification system," which allows law enforcement personnel a way to determine
whether a person is a current registered qualifying patient, grower, or registered
primary caregiver. Prop. I.C. § 39-4704(19).
The Initiative exempts patients, caregivers, growers, Centers, physicians and
laboratories from "criminal penalties if they are following the provisions set forth in
this chapter.,,3 Prop. I.C. § 39-4715. The Initiative further provides:
An alternative treatment center, an alternative treatment center agent,
a physician, or any other person active [sic] in accordance with the
provisions of this chapter shall not be subject to arrest, prosecution or
any civil or administrative penalty, or denied any right or privilege
including, but not limited to, civil penalty or disciplinary action by a
professional licensing board, related to the medical use of marijuana as
authorized under this chapter[.]
Prop. I.C. § 39-4706(2). The Initiative exempts all persons assisting, or aiding and
abetting in the use, possession, delivery, or production of medical marijuana, and all
parents (and guardians, etc.) assisting minors in the authorized use of medical
marijuana, from arrest and prosecution. Prop. I.C. § 39-4706(6), (7). Schools,
landlords, and employers may not be penalized or denied any state benefit. for
enrolling, leasing to, or employing patients, caregivers or growers. Prop. I.C. § 394717. Further, interests in, or rights to, property that is owned, possessed or used
"in connection with the medical use of marijuana or acts incidental to the medical
use of marijuana may not be forfeited under any provision of state law providing that
the property is used in accordance with the provisions of this [Act]." Prop. I.C. § 394706(8). Prop. I.C. § 39-4706(12) creates a "presumption," which reads:
The Initiative makes it a crime for persons to knowingly sell (etc.) a registration card, or altered
registration card, issued under the Act. Prop. I.C. § 39-4713(1). Additionally a "cardholder who sells or
distributes marijuana to a person who is not allowed to use marijuana for medical purposes under [the
Act] shall have his or her registry identification card revoked and is guilty of a crime." Prop. I.C. § 394713(2).
3

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The Honorable Ben Ysursa
September 28, 2012
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There will exist a presumption that a qualifying patient, primary
caregiver, or grower is engaged in the medical use of marijuana if the
qualifying patient, primary caregiver, or grower:
(a) Is in possession of a registry identification card
issued pursuant to this Chapter; and
(b) Is in possession of an amount of marijuana that does
not exceed the amount of allowed of [sic] usable
marijuana.
It should be noted that the provision does not· delineate whether the presumption
described pertains to criminal proceedings, civil proceedings, or both. Nor does the
provision state whether such a presumption is rebuttable.
Under the heading, "Discrimination Prohibited," the Initiative makes it illegal
for schools and landlords to discriminate against any person on the basis of their
status as a cardholder (unless the school or landlord would lose a federal benefit),
and for employers to discriminate on the basis of a person's status as a cardholder
or positive drug test for the presence of marijuana unless the person is impaired on
the job. Prop. I.C. § 39-4707. The Initiative prohibits discrimination against
cardholders in regard to medical care, organ transplants, custody and visitation
rights, state related benefits, and pain management plan contracts. Prop. I.C. § 394707(3)-(6).
In two unrelated, yet notable provisions, the Initiative requires reciprocity with
other states' registry identification card equivalents, Prop. I.C. § 39-4706(9), and
allows patients, caregivers and growers to "give marijuana to another ... patient, ...
caregiver, or grower to whom they are not connected through the department's
registration process, ... provided no moneys are exchanged for the marijuana, and
that the recipient does not exceed the applicable limits of three (3) ounces of usable
marijuana," Prop. I.C. § 39-4707(7). There are no direct monitoring requirements for
such exchanges of marijuana.
The Initiative contains a provision allowing nursing care type institutions to
adopt reasonable restrictions on the use of marijuana by their residents. The
provision, Prop. I.C. § 39-4711, states that such facilities "will not store or maintain
the patient's supply of marijuana[,]"· and that the facility employees are not
responsible for providing marijuana to qualifying patients. However, a facility may
not "unreasonably limit" a patient's access to or use of marijuana authorized by the
Act, unless the facility would lose money or a licensing benefit under federal law.

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The Honorable Ben Ysursa
September 28,2012
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The Director is mandated to issue a report to the governor and legislature
annually on the work of the Medical Marijuana Oversight Committee, the actions
taken by the Department to implement the provisions of the Act, and report the
number of applications for registry identification cards, the number of qualifying
patients and primary caregivers registered, and other relevant information. Prop.
I.C. § 39-4718. Finally, the Department must promulgate such rules necessary to
implement the Act within 90 days of the Act's enactment, unless otherwise specified.
In sum, the Initiative generally decriminalizes under state law the possession
of up to three ounces of marijuana for patients and caregivers, and up to three
ounces of marijuana and twelve marijuana plants for growers. The Initiative protects
participants from civil forfeitures and penalties under state law, and makes it illegal
under state law to discriminate against such participants in regard to education,
housing, and employment. Patients certified by physicians as having debilitating
medical conditions may obtain marijuana for medicinal use from a grower authorized
to grow marijuana at a marijuana grow site or from an alternative treatment center.
Patients, caregivers, and growers must obtain a registry identification card from the
Department, and Center agents must be registered with the Department before
working at a Center. The Department is tasked with an extensive list of duties,
including, inter alia: formulating rules and regulations to implement and maintain the
initiative's numerous and far-reaching measures; verifying information and approving
applications submitted for various types of permits; establishing and maintaining a
law enforcement verification system; and, providing comprehensive annual reports
to the Idaho Legislature and Governor.
B.

If Enacted, the Initiative Would Have No Legal Impact on Federal
Criminal, Employment, or Housing Laws Regarding Marijuana

Idaho is free to enforce its own laws, just as the federal government is free to
do the same. The United States Supreme Court has explained:
In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate v.
United States, 359 U.S. 187 [1959], ... this Court reaffirmed the wellestablished principle that a federal prosecution does not bar a
subsequent state prosecution of the same person for the same acts,
and a state prosecution does not bar a federal one. The basis for this
doctrine is that prosecutions under the laws of separate sovereigns do
not, in the language of the Fifth Amendment, "subject [the defendant]
for the same offence to be twice put in jeopardy":
An offence, in its legal signification, means the
transgression of a law. . .. Every citizen of the United
States is also a citizen of a State or territory. He may be
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The Honorable Ben Ysursa
September 28,2012
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said to owe allegiance to two sovereigns, and may be
liable to punishment for an infraction of the laws of either.
The same act may be an offense or transgression of the
laws of both. ... That either or both may (if they see fit)
punish such an offender, cannot be doubted."
United States v. Wheeler, 435 U.S. 313, 317, 98 S. Ct. 1079, 1083, 55 L.Ed.2d 303
(1978) (superseded by statute) (quoting Moore v. Illinois, 14 How. 13, 19-20, 14
L.Ed. 306 (1852)) (footnote omitted; emphasis added); See State v. Marek, 112
Idaho 860, 865, 736 P.2d 1314, 1319 (1987) ("[T]he double jeopardy clause of the
fifth amendment does not prohibit separate sovereigns from pursuing separate
prosecutions since separate sovereigns do not prosecute for the 'same offense."').
Under the concept of "separate sovereigns," the State of Idaho is free to create its
own criminal laws and exceptions pertaining to the use of marijuana. However, the
State of Idaho cannot limit the federal government, as a separate sovereign, from
prosecuting marijuana-related conduct under its own laws.
In U.S. v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 486, 121 S.
Ct. 1711, 1715, 149 L. Ed.2d 722 (2001), the United States Supreme Court
described a set of circumstances that appear similar to the system proposed in the
Initiative:
In November 1996, California voters enacted an initiative
measure entitled the Compassionate Use Act of 1996. Attempting "[t]o
ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes," Cal. Health & Safety Code Ann. §
11362.5 (West Supp. 2001), the statute creates an exception to
California laws prohibiting the possession and cultivation of marijuana.
These prohibitions no longer apply to a patient or his primary caregiver
who possesses or cultivates marijuana for the patient's medical
purposes upon the recommendation or approval of a physician. Ibid.
In the wake of this voter initiative, several groups organized "medical
cannabis dispensaries" to meet the needs of qualified patients. ...
Respondent Oakland Cannabis Buyers' Cooperative is one of these
groups.
A federal district court denied the Cooperative's motion to modify an injunction
that was predicated on the Cooperative's continued violation of the federal
Controlled Substance Act's "prohibitions on distributing, manufacturing, and
possessing with the intent to distribute or manufacture a controlled substance." Id.
at 487. On appeal, the Ninth Circuit determined "medical necessity is a legally
cognizable defense to violations of the Controlled Substances Act." Id. at 489.
However, the United States Supreme Court reversed the Ninth Circuit and held:
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The Honorable Ben Ysursa
September 28, 2012
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It is clear from the text of the [Controlled Substances] Act that
Congress has made a determination that marijuana has no medical
benefits worthy of an exception. The statute expressly contemplates
that many drugs "have a useful and legitimate medical purpose and are
necessary to maintain the health and general welfare of the American
people," § 801 (1), but it includes no exception at all for any medical use
of marijuana. Unwilling to view this omission as an accident, and
unable in any event to override a legislative determination manifest in a
statute, we reject the Cooperative's argument.

For these reasons, we hold that medical necessity is not a
defense to manufacturing and distributing marijuana. The Court of
Appeals erred when it held that medical necessity is a "legally
cognizable defense." 190 F.3d. at 1114. It further erred when it
instructed the District Court on remand to consider "the criteria for a
medical necessity exemption, and, should it modify the injunction, to
set forth those criteria in the modification order." Id., at 1115.
The Oakland Cannabis Buyers' Cooperative decision makes clear that
prosecutions under the federal Controlled Substances Act are not subject to a
"medical necessity defense," even though state law precludes prosecuting persons
authorized to use marijuana for medical purposes, as well as those who
manufacture and distribute marijuana for such use. Therefore, passage of the
Initiative would not affect the ability of the federal government to prosecute
marijuana related crimes under federal laws.
In sum, Idaho is free to pass and enforce its own laws creating or negating
criminal liability relative to marijuana. But, as the United States Supreme Court's
Oakland Cannabis Buyers' Cooperative decision demonstrates, even if the Initiative
is enacted, persons exempted from state law criminal liability under its provisions
would still be subject to criminal liability under federal law.
The same holds true in regard to federal regulations pertaining to housing and
employment. In Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643,
2008 WL 598310 at 1) (unpublished) (9th Cir. 2008), contrary to the plaintiff's
contention that, because he was authorized under state law to use marijuana for
medical purposes, he was illegally denied housing. The Ninth Circuit explained:
The district court properly rejected the Plaintiffs' attempt to assert
the medical necessity defense. See Raich v. Gonzales, 500 F.3d 850,
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The Honorable Ben Ysursa
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861 (9th Cir.2007) (stating that the defense may be considered only
when the medical marijuana user has been charged and faces criminal
prosecution). The Fair Housing Act, Americans with Disabilities Act,
and Rehabilitation Act all expressly exclude illegal drug use, and AHA
did not have a duty to reasonably accommodate Assenberg's medical
marijuana use. See 42 U.S.C. §§ 3602(h), 12210(a); 29 U.S.C. §
705(20)(C)(i).
AHA did not violate the Department of Housing and Urban
Development's ("HUD") policy by automatically terminating the
Plaintiffs' lease based on Assenberg's drug use without considering
factors HUD listed in its September 24, 1999 memo. . ...
Because the Plaintiffs' eviction is substantiated by Assenberg's
illegal drug use, we need not address his claim . . . whether AHA
offered a reasonable accommodation.
The district court properly dismissed Assenberg's state law
claims. Washington law requires only "reasonable" accommodation.
[Citation omitted.] Requiring public housing authorities to violate
federal law would not be reasonable.
Similarly, the Oregon Supreme Court recently held that, under Oregon's
employment discrimination laws, an employer was not required to accommodate an
employee's use of medical marijuana. Emerald Steel Fabricators, Inc. v. Bureau of
Labor and Industries, 230 P.3d 518, 520 (2010). Therefore, the provisions of the
Initiative, Prop. I.C. §§ 39-4701, et seq., cannot interfere or otherwise have an effect
on federal laws, criminal or civil, which rely, in whole or part, on marijuana being
illegal under the federal Controlled Substances Act.
C.

Miscellaneous Potential Concerns

The Idaho Constitution, article III, section 16, requires that acts "embrace but
one subject and matters properly connected therewith" and that the subject of the
act be expressed in the title and that any portion of the act not embraced by the title
"shall be void." The proposal in question addresses registration of qualifying
patients and caregivers; mandates reciprocity with other states' determinations of
eligibility for registration; grants protections against criminal prosecutions; includes
anti-discrimination provisions; defines criminal acts and conduct; requires collection
and disbursement of funds; and, creates an oversight committee. Although this all
deals generally with medical marijuana, it could be argued that the accumulation of
requirements does not allow voters to vote for or against a single issue and that the

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The Honorable Ben Ysursa
September 28,2012
Page 11 of 12
State Constitution requires that voters should be allowed to cast their votes for
discrete portions of the proposed law.
It should further be noted that although proposed section 39-4716 provides
that fees collected "will be used" in a particular manner and "shall not go to a general
fund," if passed, this statute will not prevent the Legislature from exercising its
plenary power over the state fisc. Idaho Const. art. VII, §§ 11, 13, 16.
Finally, proposed section 39-4717 limits membership on the Committee to
"one person from within the department," "at least one physician . . . who
recommends medical marijuana to some of his or her patients," and "cardholders, or
proponents of the legal availability of medical marijuana." Although it is common to
create committees that are balanced between the political parties, requiring a
particular view on a political topic as a condition for membership on a committee
seems unprecedented. Creation of a committee designed to exclude views contrary
to the proponents of the law is likely subject to challenge on grounds that it violates
the freedom of expression.
D.

Recommended Revisions or Alterations

The Initiative contains many "findings" in Prop. I.C. § 39-4701 that, with one
exception, have not been verified for the purposes of this review due to time
constraints. The claim that the National Association of Attorneys General ("NAAG")
is one of the organizations that have endorsed medical access to marijuana, as
stated in the first "WHEREAS" clause, is outdated and possibly misleading. On
September 17, 2012, counsel for NAAG represented to the Idaho Office of the
Attorney General that, although NAAG passed a resolution in 1983 supporting
legalization of medical marijuana, that resolution expired four years later. NAAG
currently takes no position on the issue.
The Initiative has several internal citations that are incorrect, described as
follows:
(1)
(2)
(3)
(4)
(5)

Prop. I.C. § 39-4703(13) refers to "39-4704(3)" - it should read
39-4704(4);
Prop. I.C. § 39-4704(2) refers to "39-4710(1) or 39-4710(a)" - it
appears it should read 39-471 O( 1)-(3);
Prop. I.C. § 39-4704(17)(b) refers to "39-4703(1)" - it should
read 39-4704(1 )-(2);
Prop. I.C. § 39-4708(5) refers to "39-4710(3)" - it should read
39-4710(4);
Prop. I.C. § 39-4710(1 )(a) refers to "39-4703(2)" - it should read
"39-4703(20);
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The Honorable Ben Ysursa
September 28, 2012
Page 12 of 12
(6)
(7)

Prop. I.C. § 39-4718(2) refers to "39-3704(11)" - it should read
"39-4704(11 );
SECTION 2 refers to "39-4704(10)" - it should read 39-4704(1).

There are several grammatical errors in the language of the Initiative. First,
the second sentence of the first paragraph of Prop. I.C. § 39-4708(1) reads: "Every
alternative treatment center issued a permit regions shall be a nonprofit entity." The
word "regions" makes no sense in the overall context of the sentence. Next,
subsections (a) and (b) of Prop. I.C. § 39-4717(2) are redundant, as subsection (a)
requires the Medical Marijuana Oversight Committee to "[p]rovide recommendations
to ensure proper implementation of this Chapter," and subsection (b) requires the
Committee to "make recommendation to the department regarding appropriate
regulations to carry out this Chapter." Finally, SECTION 2 is grammatically
incorrect, and should read in relevant part, "and information ... , are exempt from
disclosure." (Italicized words indicating correct changes.)
CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form,
style, and matters of substantive import. The recommendations set forth above
have been communicated to Petitioner via a copy of this Certificate of Review,
deposited in the U.S. Mail to Lindsey Rinehart, 2912 W. Malad, Boise, Idaho 83705.
Sincerely,

Attorney General
Analysis by:

JOHN C. McKINNEY
Deputy Attorney General

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