What did Idaho's AG say about the February 2013 medical marijuana ballot initiative?

Plain-English summary

This was the second of three Idaho medical marijuana initiative petitions that came through Attorney General Lawrence Wasden's office in 2012 to 2015. Filed January 22, 2013, it would have set up a Department of Health and Welfare-administered registration system for "qualifying patients," "designated caregivers," and three categories of "medical marijuana organizations" (production facilities, dispensaries, and safety compliance facilities). Proposed Idaho Code § 39-9100 et seq. would have shielded cardholders from state-level criminal sanctions for cultivation, testing, transport, and sale of marijuana.

Wasden's certificate followed the same template as his September 2012 review of the predecessor initiative. The most consequential finding was again that the federal Controlled Substances Act would continue to apply, regardless of what Idaho voters did. State decriminalization could not override federal criminal exposure for cardholders, dispensaries, or growers. Federal anti-discrimination statutes (FHA, ADA, Rehabilitation Act) all expressly excluded illegal drug use, so the initiative's housing and employment protections could not bind federal actors or override federal exclusions.

Other flagged issues included single-subject concerns under Article III, section 16 of the Idaho Constitution given the breadth of the proposal, definitional gaps in the categories of "medical marijuana organizations," and the recurring problem with sweeping initiatives bundling many subjects.

Currency note

This opinion was issued in 2013. 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

Idaho's initiative review statute, Idaho Code § 34-1809, gives the Attorney General a short window after a petition is filed to issue a certificate of review with non-binding advisory comments. The certificate's audience is the petitioners, who can adopt or ignore any of the AG's recommendations. The certificate also previews issues that may surface later in the AG's separate ballot title preparation.

This 2013 petition was a successor to the 2012 medical marijuana initiative reviewed in this office's prior certificate. The AG flagged the same federal preemption framework that defeats every state-only medical marijuana scheme: state law cannot stop federal prosecution under the Controlled Substances Act, and federal anti-discrimination statutes do not protect illegal drug use.

Common questions

Q: How was this petition different from the 2012 version?
A: The structure was similar but used a different code section (Title 39, Chapter 91) and added a "safety compliance facility" category. The legal issues identified by the AG were largely the same.

Q: Did this initiative make the ballot?
A: No. Idaho did not adopt a medical marijuana program by initiative during this period.

Q: Could a state shield cardholders from federal prosecution?
A: No. Under the "separate sovereigns" doctrine, federal authority to prosecute under the Controlled Substances Act is independent of state law. Decriminalization at the state level does not bind federal prosecutors.

Q: What about employment and housing protections in the initiative?
A: Federal statutes (the Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act) all expressly exclude illegal drug users from their protections. State law cannot override those federal exclusions.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (initiative review)
- Idaho Constitution, Article III, section 16 (single-subject rule)
- 21 U.S.C. § 801 et seq. (federal Controlled Substances Act)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C02202013.pdf

Original opinion text

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

February 20, 2013

The Honorable Ben Ysursa
Idaho Secretary of State
Statehouse
VIA HAND 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 January 22, 2013. 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 reviews, 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 TITLE

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.
MATTERS OF SUBSTANTIVE IMPORT
A.

Summary of the Initiative

The initiative, which is self-titled the "Idaho Medical Marijuana Act" (hereafter "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 Act, are protected from arrest, prosecution, property forfeiture ,
and criminal and other penalties under Idaho law. A summary of the Act's provisions, tentatively
denominated as Idaho Code § 39-9100, et seq., begins with its purpose, which is:

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

The Honorable Ben Ysursa
February 20, 2013
Page 2 of 11
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. § 39-9102. 1
In general, the Act authorizes the Idaho Department of Health and Welfare
("Department") to establish a comprehensive registration system for instituting and maintaining
the production and dispensing of marijuana for use by persons diagnosed with a debilitating
medical condition. Prop. I.C. § 39-9106. The Act directs the Department to approve or deny
applications for "registry identification cards" presented by "qualifying patients," their "designated
caregivers," and "agents" of "medical marijuana organizations." Prop. I.C. §§ 39-9103(3), 399103(16), 39-9108 to 39-9113. The Department is required to issue "registration certificates" to
qualifying "medical marijuana organizations," defined as "medical marijuana production
facilities," "medical marijuana dispensaries," and "safety compliance facilities." Prop. I.C. §§ 399103(10), 39-9103(15), 39-9107, 39-9113, 39-9115. The Act permits, without state civil or
criminal sanctions, marijuana to be produced by medical marijuana production facilities
throughout the state (and qualified patients and/or designated caregivers whose registry
identification cards allow them to "cultivate" marijuana), tested for potency and contaminants at
safety compliance facilities, and transported to medical marijuana dispensaries for sale to
qualifying patients and/or their designated caregivers.
The Act provides that: (1) qualifying patients ("patients") may possess up to 2% ounces
of marijuana, and, if a patient's registry identification card states that the patient "is exempt from
criminal penalties for cultivating marijuana," the patient may also possess up to 12 marijuana
plants in an enclosed locked facility, etc., and any marijuana produced from those plants, and
(2) designated caregivers ("caregivers") to assist up to 5 patients' medical use of marijuana, and
to independently possess, for each patient assisted, the same amounts of marijuana described
above, but not exceeding a total of 30 marijuana plants (assuming the caregiver's registry
identification card bears a "cultivator" exemption). Prop. I.C. § 39-9103(2).
In order to become a patient, a person must have a "practitioner" (defined as a person
authorized to prescribe drugs pursuant to the Medical Practice Act (I.C. § 18-5400, et seq.))
provide a written certification that, in the practitioner's professional opinion, the patient "is likely
to 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
condition." Prop. I.C. §§ 39-9103(13), 39-9103(21). The certification must specify the patient's
debilitating medical condition and may only be signed (and dated) in the course of a
"practitioner-patient relationship after the practitioner has completed a full assessment of the
qualifying patient's medical history and current medical condition." Id. Minors are also entitled
to be issued registry identification cards as patients under certain criteria. Prop. I.C. § 399110(2).
A "debilitating medical condition" means not only the conditions listed (such as cancer,
glaucoma, HIV, AIDS, "agitation of Alzheimer's disease," post-traumatic stress syndrome, etc.),
1 References to "proposed" I.C. § 39-9100, et seq., will read, "Prop. I.C. § 39-9100," etc.

The Honorable Ben Ysursa
February 20, 2013
Page 3 of 11
but also any treatment of those conditions "that produces cachexia or wasting syndrome, severe
and chronic pain, severe nausea, seizures, including those characteristic of epilepsy, or severe
and persistent muscle spasms, including those characteristic of multiple sclerosis," any terminal
illness with life expectancy of less than 12 months, or "[a]ny other medical condition or its
treatment added by the department pursuant to section 39-9104." Prop. I.C. § 39-9103(4). The
Act provides two methods in which to add new debilitating medical conditions or treatments to
the list: (1) the public may petition the Department, and (2) "upon receipt by the department of a
petition signed by at least fifty (50) practitioners requesting the debilitating medical condition or
treatment be added." Prop. I.C. § 39-9104.
"Agents" are defined as principal officers, board members, employees, or volunteers of a
medical marijuana organization who are at least 21 years old and who have "not been convicted
of a felony offense." Prop. I.C. § 39-9103(1). A "felony offense" means a felony which is either
a "violent crime" or a violation of a state or federal controlled substance law. Prop. I.C. § 399103(8). Caregivers, in contrast, do not have the "felony offense" restriction, but are required to
be at least 21 years old and "agree to assist no more than five (5) qualifying patients at the
same time." Prop. I.C. § 39-9103(6).
Patients may apply for registry identification cards for themselves and their caregivers by
submitting a written certification issued by a practitioner within the last 90 days, application and
fee, and a "designation as to who will be allowed to cultivate marijuana plants for the qualifying
patient's medical use if a medical marijuana dispensary is not operating within fifteen (15) miles
of the qualifying patient's home and the address where the marijuana plants will be cultivated."
Prop. I.C. § 39-9109(1 ).2 The Department is obligated to verify the information in an application
(or renewal request) for a registry identification card, and approve or deny the application within
ten days after receiving it, and must issue a card within five more days thereafter. Prop. I.C. §
39-9110(1). If a registry identification card "does not state that the cardholder is authorized to
cultivate marijuana plants, the department must give written notice to the registered qualifying
patient ... of the names and addresses of all registered medical marijuana dispensaries." Prop.
I.C. § 39-9110(3). The registry identification cards must include a "random twenty (20) digit
alphanumeric identification number that is unique to the cardholder," and a "clear indication of
whether the cardholder has been authorized by this chapter to cultivate marijuana plants for the
qualifying patient's medical use." Prop. I.C. § 39-9111 (1 )(d)(g). The Department may deny an
application or renewal request for a registry identification card for failing to meet the
requirements of the Act, and must provide written notice of its reasons for doing so. Prop. I.C. §
39-9112. Registry identification cards expire after one year, and may be renewed for a fee.
Prop. I. C. § 39-9113.
Medical marijuana organizations must have operating documents that include
procedures for the oversight of the organization and accurate recordkeeping, and are required
to implement security measures to deter theft of marijuana and unauthorized entrance into
areas containing marijuana. Prop. I.C. § 39-9115. Medical marijuana production facilities must
restrict marijuana cultivation, harvesting, etc., within an enclosed, locked facility only accessible
to registered agents. Prop. I.C. § 39-9115(3). Medical marijuana production facilities and
dispensaries "may acquire usable marijuana or marijuana plants from a registered qualifying
patient or registered designated caregiver only if the ... patient or ... caregiver receives no
compensation for the marijuana." Prop. I.C. § 39-9115(4).
2 The Act also allows "visiting qualifying patients" from other states to possess medical marijuana while in Idaho.

Prop. I.C. § 39-9103(20).

The Honorable Ben Ysursa
February 20, 2013
Page 4 of 11
The Department is required to "establish and maintain a verification system for use by
law enforcement personnel and registered medical marijuana organization agents to verify
registry identification cards." Prop. I.C. § 39-9118. Patients are required to notify the
Department within ten days of any change in name, address, designated caregiver, and their
preference regarding who may cultivate marijuana for them, and, upon receipt of such notice,
the Department has ten days to issue a new registry identification card. Prop. I.C. § 399119(1 )(4). If the patient changes the caregiver, the Department must notify the former
caregiver that "his duties and rights ... for the qualifying patient expire fifteen (15) days after the
department sends notification." Prop. I.C. § 39-9119(6).
The Department is required to keep all records and information received pursuant to the
Act confidential, and any dispensing of information by medical marijuana organizations or the
Department must identify cardholders and such organizations by their registry identification
numbers and not by name or other identifying information. Prop. I.C. § 39-9121 (1), (2).
Department employees may notify state or local law enforcement about suspected fraud or
criminal violations if the employee who suspects the fraud or criminality "has conferred with his
supervisor and both agree the circumstances warrant reporting." Prop. I.C. § 39-9121 (6)(a)(b).
Department employees may notify the board of medical examiners "if they have reason to
believe that a practitioner provided a written certification without completing a full assessment of
the qualifying patient's medical history and current medical condition, or if the department has
reason to believe the practitioner violated the standard of care, or for other suspected violations
of this chapter." Prop. I.C. § 39-9121 (6)(c).
Prop. I.C. § 39-9122 creates a rebuttable presumption that patients and caregivers are
deemed to be lawfully engaged in the medical use of marijuana if their conduct complies with
the Act. However, the provision does not specify the types of cases (criminal, civil, or
administrative) to which the presumption applies. Next - and most significantly - it provides that
patients, caregivers, and practitioners are not subject to arrest, prosecution, or penalty in any
manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a
court or occupational or professional licensing board or bureau for conduct authorized by the
Act. Practitioners are protected from sanctions for conduct "based solely on providing written
certifications" (with the required diagnosis), but may be subject to sanction by a professional
licensing board for "failing to properly evaluate a patient's medical condition or otherwise
violating the standard of care for evaluating medical conditions." Prop. I.C. § 39-9122(4). No
person is subject to criminal or civil sanctions for selling marijuana paraphernalia to a cardholder
or medical marijuana organization, being in the presence of "the medical use of marijuana," or
assisting a patient as authorized by the Act. Prop. I.C. § 39-9122(5).
The Act makes medical marijuana organizations and their agents immune from criminal
and civil sanctions, and searches or inspections, if their conduct complies with the Act. Prop.
I. C. § 39-9122(6) to (8). Further, the mere possession of, or application for, a registry
identification card "may not constitute probable cause or reasonable suspicion, nor may it be
used to support the search of the person or property of the person possessing or applying for
the registry identification card." Prop. I.C. § 39-9122(10). Based upon the discussion that
follows regarding the relationship between the Act and federal law, such a provision would have
no impact upon a probable cause determination made in compliance with the Fourth
Amendment of the United States Constitution. Prop. I.C. § 39-9122(11) states that no school,
landlord, or employer may be penalized or denied any benefit under state law for enrolling,
leasing to, or employing a cardholder or (leasing to) a medical marijuana organization.

The Honorable Ben Ysursa
February 20, 2013
Page 5 of 11
However, the Act "does not prevent the imposition of any civil, criminal, or other penalties" for
possession or engaging in the medical use of marijuana on a school bus, preschool, primary, or
secondary school grounds or in any correctional facility, nor does it allow smoking marijuana on
any other form of public transportation or in any public place. Prop. I.C. § 39-9105.
The Department is given the task of making extensive rules, pursuant to the Idaho
Administrative Procedure Act ("IDAPA") for implementing the Act's measures, including rules
for: the form and content of applications and renewals, a system to "numerically score
competing medical marijuana dispensary applicants," the prevention of theft of marijuana and
security at facilities, oversight, recordkeeping, safety, dispensing of medical marijuana "by use
of an automated machine," and safe and accurate packaging and labeling of medical marijuana.
Prop. I.C. § 39-9106. Notably, the provision requires that, in establishing application and
renewal fees for registry identification cards and registration certificates, "[t]he total amount of all
fees must generate revenues sufficient to implement and administer this chapter, except fee
revenue may be offset or supplemented by private donations." Prop. I.C. § 39-9106(1 )(g)(i).
The same self-funding requirement is repeated in Prop. I.C. § 39-9106(1 )(g)(iii). A "medical
marijuana fund" is established by what is misnumbered (as the second) Prop. I.C. § 39-9127,
but should be Prop. I.C. § 39-9128. The fund consists of "fees collected, civil penalties
imposed, and private donations," and is to be administered by the Department.
Under the heading "Affirmative defense," the Act provides that patients, visiting patients,
and caregivers "may assert the medical purpose for using marijuana as a defense to any
prosecution of an offense involving marijuana intended for a qualifying patient's or visiting
qualifying patient's medical use, and this defense must be presumed valid if," several criteria are
met. Prop. I.C. § 39-9123(1). If evidence shows that the listed criteria are met, the defense
"must be presumed valid." Id. Further, Prop. I.C.
§ 39-9123(2) allows a person to assert the
"medical use" affirmative defense "in a motion to dismiss, and the charges must be dismissed
following an evidentiary hearing if the person shows the elements listed in subsection (1 )."
Prop. I.C. § 39-9123 clearly creates a conclusive presumption, which is not only disfavored in
law, but is also completely inconsistent with the way affirmative defenses operate - i.e., by
requiring the defense to present prima facie evidence at trial to support an affirmative defense
before a jury instruction on the affirmative defense is deemed warranted. Moreover, the
provision gives defendants the unprecedented opportunity of having an affirmative defense be
the basis not only of acquittal at trial, but dismissal prior to trial. Finally, if the patient or
caregiver succeeds in demonstrating a medical purpose for the patient's use of marijuana, there
can be no disciplinary action by a court or occupational or professional licensing board, etc.
Prop. I.C. § 39-9123(3).
Under the heading "Discrimination Prohibited," the Act makes it illegal for schools,
landlords, nursing facilities, intermediate care facilities, hospice houses, hospitals, etc., to
penalize a person solely for his status as a cardholder, unless to do so would violate federal law
or cause the entity to lose a monetary or licensing benefit under federal law. Prop. I.C. § 399124(1). The provision also states that "[n]o person may be denied custody of or visitation or
parenting time with a minor, and there is no presumption of neglect or child endangerment for
conduct allowed under this chapter, unless the person's behavior creates an unreasonable
danger to the safety of the minor as established by clear and convincing evidence." Prop. I.C. §
39-9124(5). The presumption created by the "clear and convincing evidence" standard will
make it much more difficult to prove that a parent or custodian's marijuana use is harmful to a
child in civil proceedings.

The Honorable Ben Ysursa
February 20, 2013
Page 6 of 11
The Act has measures for revoking registry identification cards and registration
certificates for violations of its provisions, including notice and confidentiality requirements.
Prop. I.C. §§ 39-9126, 39-9127. Under Prop. I.C. § 39-9127(7), it is a "class A misdemeanor"
for an employee or official of the department to breach the confidentiality of information.
However, Idaho Code does not make any provision for "class A" misdemeanors. Subsection (8)
of Prop. I.C. § 39-9127 reads, "[a] person who intentionally makes a false statement to a law
enforcement official about any fact or circumstance related to the medical use of marijuana to
avoid arrest or prosecution is guilty of an infraction .... " It is very questionable whether the
phrase "any fact or circumstance relating to the medical use of marijuana" would withstand a
"void for vagueness" constitutional challenge in court. The Act contains a "Severability" clause
which states that if any of its provisions are "declared invalid for any reason, such declaration
shall not affect the validity of the remaining portions of this act." The Act, Section 2.
If the Department fails to adopt rules to implement the Act within 120 days of the Act's
enactment, any citizen may commence a mandamus action to compel compliance. [Corrected
number] Prop. I.C. § 39-9129(1) to (2). If the Department fails to issue or deny an application or
renewal for a registry identification card within 45 days after submission of such application, a
copy of the application is deemed a valid registry identification card. [Corrected number] Prop.
I. C. § 39-9129(3). Further, if the Department is not accepting applications or has not adopted
rules for applications within 140 days after enactment of the Act, a "notarized statement" by a
patient containing the information required in an application, with a written certification issued by
a practitioner, etc., will be deemed a valid registry identification card. [Corrected number] Prop.
I. C. § 39-9129(4). The Department must submit an annual public report to the legislature with
information set out in Prop. I.C. § 39-9120.
In sum, the Act generally decriminalizes under state law the possession of up to 2'Y2
ounces of marijuana and (if authorized as a "cultivator") 12 marijuana plants for patients and
caregivers. The Act also protects agents of medical marijuana production facilities, medical
marijuana dispensaries, and safety compliance facilities from civil forfeitures and penalties
under state law, and makes it illegal under state law to discriminate against all such participants
in regard to education, housing, and employment. Patients certified by practitioners as having
debilitating medical conditions may obtain marijuana for medicinal use from his (or his
caregiver's) cultivation of marijuana (if authorized on the registry identification card), the
patient's caregiver or a medical marijuana dispensary. Patients, caregivers, and agents of
medical marijuana organizations must obtain registry identification cards, and medical marijuana
organizations must obtain registry certificates from the Department, and continuously update
relevant information. The Department is tasked with an extensive list of duties, including, inter
alia: formulating rules and regulations to implement and maintain the Act's numerous and farreaching measures, verifying information and timely approving applications and renewal
requests submitted for registry identification cards and registration certificates, establishing and
maintaining a law enforcement verification system, providing rules for security, recordkeeping,
and oversight, maintaining and enforcing confidentiality of records, and providing an annual
report to the Idaho Legislature.
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:

The Honorable Ben Ysursa
February 20, 2013
Page 7 of 11

In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate v. United
States, 359 U.S. 187 [1959], . . . this Court reaffirmed the well-established
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 [sic], 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 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, 316-17, 98 S. Ct. 1079, 1082-83, 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 United States 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.
[Citation omitted.]
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:

The Honorable Ben Ysursa
February 20, 2013
Page 8 of 11

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.
Id. at 493-95.

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) (9 th 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, 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).

The Honorable Ben Ysursa
February 20, 2013
Page 9 of 11
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 (Or. 2010). Therefore, the provisions of the initiative, Prop. I.C. §§ 39-9101, 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.

Recommended Revisions or Alterations

The initiative contains many "findings" in Prop. I.C. § 39-9102 that have not been verified
for the purposes of this review due to time constraints. The Office of the Attorney General takes
no position on those findings. In addition to the legal and non-legal problems previously
discussed, the initiative has several other aspects that merit consideration, described as follows:
1.
Prop. I.C. § 39-9127 "Medical marijuana fund misnumbered and should be numbered "39-9128."

Private donations" is

2.
Prop. I.C. § 39-9128 "Enforcement of this act - Mandamus" is misnumbered and
should be numbered "39-9129."
3.
Prop. I.C. § 39-9103(4)(a) reads in part, "agitation of Alzheimer'S disease," which
would be more correctly phrased "agitation of Alzheimer'S patients."
4.
Prop. I.C. § 39-9103(19) reads in part, "means a secure, phone," which should
omit the comma after the word "secure".
5.
Under Prop. I. C. § 39-91 03( 1), medical marijuana organization agents cannot
have been convicted of a felony offense (as defined), but there is no such requirement for
caregivers, which may be intentional or an oversight.
6.
Prop. I.C. § 39-9103(4)(a) defines "debilitating medical condition" as including a
list of conditions "or the treatment of these conditions." However, Prop. I.C. § 39-9103(4)(b)
more accurately explains that "debilitating medical condition" means "a chronic or debilitating
disease or medical condition or its treatment that produces cachexia or wasting syndrome,

The Honorable Ben Ysursa
February 20, 2013
Page 10 of 11
severe and chronic pain, (etc.)." It is recommended that the phrase "or the treatment of these
conditions" be excised from Prop. I.C. § 39-9103(4)(a).

7.
In Prop. I.C. § 39-9103(4)(c), there is no indication of who decides whether a
patient has a terminal illness "with life expectancy of less than twelve (12) months" in order to
qualify as having a debilitating medical condition. It is recommended that the provision state
who is given that responsibility.
8.
The provision that allows a new debilitating medical condition or treatment to be
added to such list if 50 or more practitioners sign a petition making a request does not have any
public hearing, notice, or public comment provisions. These omissions may violate due process
and/or equal protection constitutional requirements. See Prop. I.C. § 39-9104(2); cf Prop. I.C. §
39-9106(1)(a). It is recommended that the provision be modified to allow for public hearing,
notice, and public comment.
9.
Prop. I.C. § 39-9107(e) appears to allow only one medical marijuana dispensary
in counties of over 20,000, which is inconsistent with Prop. I.C. § 39-9107(4), which allows the
Department to "register additional medical marijuana organizations at its discretion."
10.
The registration requirements of patients, caregivers, and agents do not require
the applicants to include their social security numbers - only their names and dates of birth.
This less than certain method of identification could present identification issues at hearings or
trials of cardholders for non-compliance with the Act, or violations of criminal law. See Prop.
I.C. §§ 39-9108(2), 39-9109(1). It is recommended that social security numbers or other
identifying numbers such as driver's licenses or other state-issued identification of persons
applying (and proposed caregivers) for registry identification cards be required in the
applications for such cards.
11.
There is no criteria for a registry identification card to have the "cultivator"
authorization on it. See Prop. I.C. §§ 39-9103(2)(a)(ii) and (b)(ii), 39-9109(1 )(c)(v), 39-9110(3).
If it is intended that the Department create rules for such qualifications, it is recommended that
such responsibility be included in the "Rulemaking" provisions of Prop. I.C. § 39-9106.
12.
The provision authorizing the Department to conduct a "background check" of
any "prospective medical marijuana organization agent" does not indicate whether those checks
are for criminal history under the N.C.I.C. system or some other format, and does not explain
who qualifies as a "prospective" medical marijuana organization agent. See Prop. I.C. § 399110(4). It is recommended that such details be provided in the proposed provision.
13.
The Department is not required to prepare or present any financial information
regarding the implementation and/or maintenance of the Act's provisions in its annual report to
the Idaho Legislature. See Prop. I.C. § 39-9120. If an oversight, it is recommended that
additional criteria concerning finances be included in the provision.

The Honorable Ben Ysursa
February 20, 2013
Page 11 of 11
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.

Analysis by:

JOHN C. McKINNEY
Deputy Attorney General