What did Idaho's AG say about the 2015 four-part marijuana initiative covering medical use, decriminalization, drug paraphernalia, and industrial hemp?

Plain-English summary

This was the third Idaho marijuana initiative reviewed by Attorney General Lawrence Wasden's office in three years, and the most ambitious in scope. Filed February 20, 2015, by petitioners working with Secretary of State Lawerence Denney, the proposal would have done four things at once:

1. Legalized medical use of marijuana under a state registration system
2. Decriminalized possession of three ounces or less of marijuana
3. Decriminalized possession of marijuana-related drug paraphernalia and excluded participants in Idaho's medical marijuana program from prosecution
4. Established an Idaho industrial hemp program

The certificate's most prominent concern was the single-subject rule under Article III, section 16 of the Idaho Constitution, which says every act "shall embrace but one subject and matters properly connected therewith." Wasden noted the Idaho Court of Appeals had explained in Kerner v. Johnson, 99 Idaho 433, 583 P.2d 360 (1978), that the "critical task" is identifying the "general subject" of the bill, and that the title is not a catalog or index. Bundling medical marijuana legalization with recreational decriminalization with paraphernalia rules with industrial hemp licensing would test the limits of "general subject" in a way the prior 2012 and 2013 medical-only proposals did not. A challenger could argue voters were being asked to vote up or down on too many distinct programs at once.

The certificate also carried forward the federal preemption analysis that defeated the prior medical-marijuana petitions: the Controlled Substances Act would still apply to participants in any state-authorized program, and federal anti-discrimination statutes would not protect illegal drug users from federal-statute exclusions.

Currency note

This opinion was issued in 2015. 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

The 2015 petition reflected a strategic shift by drug policy reform advocates: rather than pursuing medical marijuana alone (the 2012 and 2013 strategy), the proponents bundled medical access with simple-possession decriminalization and an industrial hemp program. The bundle made political sense (each component had its own constituency), but exposed the petition to the constitutional single-subject vulnerability the AG flagged.

The Idaho Constitution's single-subject requirement applies to legislative acts and, by extension, to voter-passed initiatives. Article III, section 16's penalty for a violation is selective: "if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title." That means a court could strike one of the four programs while leaving the others standing, depending on which the court read as "embraced in the title."

Common questions

Q: Did this initiative reach the ballot?
A: The certificate is silent on the petition's later progress. Idaho did not adopt a marijuana legalization or industrial hemp program by initiative during this period.

Q: How did this differ from the 2013 medical marijuana proposals?
A: Beyond the single new federal preemption issues already flagged in 2012 and 2013, this petition added three new components (recreational possession decriminalization, paraphernalia rules, and industrial hemp licensing). That is what triggered the heightened single-subject concern.

Q: Was industrial hemp federally legal at the time?
A: Federal law treated hemp as a Schedule I controlled substance until the 2018 Farm Bill removed it from the Controlled Substances Act. At the time of this 2015 certificate, an Idaho industrial hemp program would still have raised federal preemption questions parallel to the marijuana provisions.

Q: Could the petitioners split the proposal into four separate initiatives?
A: Yes, and the certificate implicitly suggested that route. Each program could survive single-subject review on its own; bundled, the package was vulnerable.

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)

Cases:
- Kerner v. Johnson, 99 Idaho 433, 583 P.2d 360 (1978) (Idaho Supreme Court, single-subject standard)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C03102015.pdf

Original opinion text

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

March 10, 2015

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
Re:

Certificate of Review
Proposed Initiative Related to (1) Legalization of Medical Use of Marijuana; (2)
Decriminalization of Possession of Three Ounces or Less of Marijuana; (3)
Decriminalization of Possession of Marijuana-Related Drug Paraphernalia and
Exclusion From Prosecution for Participants in Idaho's Medical Marijuana
Program and (4) Establishment of Idaho Industrial Hemp Program

Dear Secretary of State Denney:
An initiative petition was filed with your office on February 20, 2015. 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 .

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 Lawerence Denney
March 1OJ 2015
Page 2 of 16

MATTERS OF SUBSTANTIVE IMPORT
A.

Summary of the Initiative

The initiative submitted for review is comprised of Sections 1 through 51 and each but
Section 5 (re: Severability) contains a separate title 1 findings 1 and substantive provisions. As a
preliminary matter1the divergent types of laws proposed by the initiative may run counter to the
"single subject rulell set forth in art. 111 1sec. 16 of the Idaho Constitution 1which states:

Unity of subject and title. -- Every act shall embrace but one subject
and matters properly connected therewith 1 which subject shall be expressed in
the title; but if any subject shall be embraced in an act which shall not be
expressed in the title 1 such act shall be void only as to so much thereof as shall
not be embraced in the title.
The Idaho Court of Appeals has stated that the "critical taskll in analyzing whether an act
"embraces one subject and matters properly connected to W is to identify the "general subjecr
matter of the bill:
The critical task is to identify the "general subjecr of the bill. In our view!
the "general subjecr of the bill here in question is the award of attorney fees in
civil actions. The text of the statute . . . plainly falls within this subject. Its
provisions are germane to 1 and are not incongruous with 1 the subject. To define
the subject more narrowly 1 by limiting it to enumerated civil actions mentioned in
the title 1would be to treat the title as a catalog or index to the act. The Supreme
Court rejected this approach in Kerner [v. Johnson! 99 Idaho 4331 4521 583 P.2d
360 1379 (1978)] and! accordingly 1we reject it here.
Cheney v. Smith 1 108 Idaho 209 1 210 1 697 P.2d 1223 1 1224 (Ct. App. 1985). See also Cox v.
City of Sandpoint 1 140 Idaho 127 1 131 1 90 P.3d 352 1 356 (Ct. App. 2003) (an act providing a
comprehensive recodification and revision of the laws relating to municipal corporations
satisfied art. III 1sec. 16).
A cursory review of the initiative 1s Sections shows it combines the decriminalization of
medical marijuana (Section 1) and possession of three ounces (or less) of marijuana (Section 2)
with the establishment of an "Idaho Industrial Hemp Programll (Section 4) 1 the latter of which
focuses on agricultural farming of industrial hemp. The combination of such diverse subjects
may not conform with art. 111 1sec. 16.
Sections 1 through 5 of the initiative are summarized as follows.

1.

Section 1: Idaho Medical Marijuana Program

The initiative 1 which is self-titled the "Idaho Medical Marijuana Acf (hereafter "Acf)l
declares that persons engaged in the use 1 possession 1 manufacture 1 sale and/or distribution of
marijuana to persons suffering from debilitating medical conditions 1 as authorized by the
procedures established in the Act 1 are protected from arrest 1 prosecution 1 property forfeiture 1
and criminal and other penalties under Idaho law. A summary of the Acfs provisions 1tentatively
denominated as Idaho Code § 39-9200 1et seq. begins with its purpose 1which is:
1

The Honorable Lawerence Denney
March 10, 2015
Page 3 of 16
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. l.C. § 39-9202. 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. l.C. § 39-9206. 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. l.C. §§ 39-9203(3); 399203(17) (corrected); 2 39-9208 to 39-9213. 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.
l.C. §§ 39-9203(10)-(12), (16), (18) (corrected); 39-9207; 39-9213; 39-9215. 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 three
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 three patients' medical use of
marijuana, 3 and to independently possess, for each patient assisted, the same amounts of
marijuana described above, but not exceeding a total of 36 marijuana plants (assuming the
caregiver's registry identification card bears a "cultivator" exemption), and any marijuana
produced from those plants. Prop. l.C. §§ 39-9203(2)(b).
In order to become a qualified 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
medical condition." Prop. l.C. §§ 39-9203(15), (22) (corrected). 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
1

References to "proposed" statutes are preceded with "Prop."
The initiative misnumbered the definitions in Prop. l.C. §§ 39-9203 after subsection (8) by listing the
subsequent subsection again as (8), and continuing the count from that point. The reference to l.C. § 39-9203(17)
reflects a correct sequential numbering of the subsection of that proposed statute, and other misnumbered
subsections will be indicated as "corrected."
3
The registration requirements for designated caregivers inconsistently state that such caregivers will not
provide services "for more than five (5) registered qualifying patients[.]" Prop. l.C. 39 § 9209(1 )(c)(iv).
2

The Honorable Lawerence Denney
March 10, 2015
Page 4 of 16
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. l.C. § 399210(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 disorder, etc.),
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 39-9204." Prop. l.C. § 39-9203(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. l.C. § 39-9204.
"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. l.C. § 39-9203(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. l.C. § 399203(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 three (3) qualifying patients with the
medical use of marijuana." Prop. l.C. § 39-9203(6); seen. 3, supra.
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. l.C. § 39-9209(1 ). 4 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. l.C.
§ 39-9210(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.
l.C. § 39-9210(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. l.C. § 39-9211 (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. l.C.
§ 39-9212. Registry identification cards expire after one year, and may be renewed for a fee.
Prop. l.C. § 39-9213.
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
4
The Act also allows "visiting qualifying patients" from other states to possess medical marijuana while in
Idaho. Prop. l.C. § 39-9203(21) (corrected).

The Honorable Lawerence Denney
March 10, 2015
Page 5 of 16
areas containing marijuana. Prop. l.C. § 39-9215. Medical marijuana production facilities must
restrict marijuana cultivation, harvesting, etc., within an enclosed, locked facility only accessible
to registered agents. Prop. l.C. § 39-9215(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. l.C. § 39-9215(4).
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. l.C. § 39-9218. 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. l.C. § 399219(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. § 39-9219(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. l.C. § 39-9221 (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. l.C. § 39-9221 (6)(a),
(6)(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. l.C. § 39-9221 (6)(c).
Prop. l.C. § 39-9222 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. l.C. § 39-9222(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. l.C. § 39-9222(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.
l.C. § 39-9222(6)-(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 Honorable Lawerence Denney
March 10, 2015
Page 6 of 16
the search of the person or property of the person possessing or applying for the registry
identification card." Prop. l.C. § 39-9222(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. l.C. § 39-9222(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. 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. l.C. § 39-9205.
Subsection (13) of Prop. l.C. § 39-9222 warrants brief discussion; it states:
A qualifying patient or designated caregiver may not be subject to criminal
penalty, or have his or her parental rights and/or residential time with a child
restricted due to his or her medical use of marijuana, or his or her child/ren's
medical use of marijuana, in compliance with the terms of this chapter, absent
written findings supported by substantial evidence that such use has resulted in a
long-term impairment that interferes with the performance of parenting functions.
In short, Prop. l.C. § 39-9222(13) precludes criminal penalties and other parental-related
sanctions based on a patient's medical use of marijuana in situations lacking substantial
evidence of "long-term impairment" that interferes with parenting functions. More precisely, if a
patient's "short-term" marijuana impairment resulted in harm or endangerment to the patient's
child, the patient could "not be subject to criminal penalty" or parental-related sanction. For
example, a patient could not be convicted of child endangerment based on driving under the
influence of marijuana (with a child in the vehicle) if the patient was impaired by marijuana for
only the "short-term." Idaho law recognizes no "short-term impairment" exception to its criminal
or parental-related laws for any other substance, whether legally prescribed or not.
The "Limitations" provision, Prop. l.C. § 39-9205, states that, when any civil, criminal or
other penalty is sought to be imposed on a patient (or visiting patient) for operating a motor
vehicle (or boat, etc.) while under the influence of marijuana, the patient "may not be considered
to be under the influence of marijuana solely because of the presence of metabolites or
components of marijuana without noticeable actions of impairment including slurred speech and
lethargic movements." Prop. l.C. § 39-9205(4). This provision presents the following legal
concerns: ( 1) Idaho's driving under the influence laws already address the need for prosecutors
to prove "impairment" regardless of what substances (including legally prescribed drugs) caused
such impairment, (2) the provision is based on what may be an incorrect assumption that
persons are currently "considered to be under the influence of marijuana solely because of the
presence of metabolites or components of marijuana," and (3) requiring the state to prove
impairment of patients by showing both slurred speech and lethargic movements may
impermissibly invade the state's ability to choose how to prove a criminal offense with
admissible and relevant evidence; additionally, the plain language of the provision appears to
preclude successful prosecution of patient-defendants who choose not to speak at all.
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

The Honorable Lawerence Denney
March 10, 2015
Page 7 of 16
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. l.C. § 39-9206. 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. l.C. § 39-9206(1)(g)(i).
The same self-funding requirement is repeated in Prop. l.C. § 39-9206(1 )(g)(iii). A "medical
marijuana fund" is established by Prop. l.C. § 39-9228, consisting 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. l.C. § 39-9223(1 ). If evidence shows that the listed criteria are met, the defense
"must be presumed valid." Id. Further, Prop. l.C. § 39-9223(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. l.C. § 39-9223 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. l.C. § 39-9223(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. l.C. § 399224(1 ). Subsection (5) of Prop. l.C. § 39-9224 presents several legal difficulties; it reads:
There is no presumption of neglect or child endangerment by a qualified
patient or qualified caregiver for conduct allowed under this chapter, unless the
person's behavior creates an unreasonable danger to the safety or the minor(s)
as established by written findings of clear and convincing evidence that such
neglect or child endangerment is a direct outcome of a qualifying patient or
caregiver's medical use or cultivation of marijuana.
Concerns about Subsection (5) include, but are not limited to: (1) the provision precludes a
"presumption" of neglect or child endangerment that does not currently exist; (2) it does not
specify the types of proceedings to which it applies, although "neglect or child endangerment"
implies criminal, child protection and family law proceedings; (3) by its exclusionary language
(i.e., beginning with "unless"), the provision could be construed as creating a presumption of
neglect or child endangerment in certain situations, and (4) the provision does not explain how

The Honorable Lawerence Denney
March 10, 2015
Page 8of16
such a presumption would impact the ultimate burden of proof in a proceeding. As a practical
matter, it seems unlikely that a party would try to show "clear and convincing" proof (one of the
highest standards in law) that "neglect or child endangerment" is a "direct outcome" of a
patient's or caregiver's medical use or cultivation of marijuana merely to employ a "presumption"
of neglect or child endangerment. To prevail in most (if not all) proceedings, a party must meet
a standard of proof less rigorous than the clear and convincing standard - it makes no sense to
prove more to gain less.
The Act has measures for revoking registry identification cards and registration
certificates for violations of its provisions, including notice and confidentiality requirements.
Prop. l.C. §§ 39-9226, 39-9227. Under Prop. l.C. § 39-9227(7), it is a misdemeanor for an
employee or official of the Department to breach the confidentiality of information. Subsection
(8) of Prop. l.C. § 39-9227 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 5.
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. Prop. l.C.
§ 39-9229(1 ), (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. Prop. l.C. § 39-9229(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. Prop. l.C. § 39-9229(4). The Department must
submit an annual public report to the Legislature with information set out in Prop. l.C. § 39-9220.
In sum, the Act generally decriminalizes under state law the possession of up to three
ounces of marijuana and (if authorized as a "cultivator") 12 marijuana plants for patients and up
to 36 plants for caregivers (up to 12 for each of a maximum of three patients cared for). 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
The
certificates from the Department, and continuously update relevant information.
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 far-reaching 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; oversight; maintaining and
enforcing confidentiality of records and providing an annual report to the Idaho Legislature.

The Honorable Lawerence Denney
March 10, 2015
Page 9 of 16

2.

Section 2: Decriminalization of Possession of Three Ounces or Less of
Marijuana

Section 2 of the initiative, entitled "Small Amount Marijuana Decriminalization," seeks to
amend l.C. § 37-2732(c) by adding subsection (4), which states in relevant part:
Any person who is found to possess marijuana, which for the purposes of
this subsection shall be restricted to all parts of the plants of the genus Cannabis,
including the extract or any preparation of cannabis which contains
tetrahydrocannabinol (THC), in an amount of three (3) ounces net weight or less,
it shall be an infraction, and upon conviction may be fined not more than one
hundred dollars ($100) for the first offense, not more than five hundred dollars
($500) for the second offense, and not more than one thousand dollars ($1,000)
for the third and any subsequent offense.
First, the proposed amendment to l.C. § 37-2732(c) leaves intact subsection (3), which
makes the possession of up to three ounces of marijuana a misdemeanor. See l.C. §§ 372732(c)(3), (e). For clarity and consistency, the addition of subsection (4) to make possession
of three ounces or less of marijuana an infraction should be accompanied by an amendment to
subsection (3) excluding such possession as a misdemeanor. Second, l.C. § 18-113A makes
the maximum punishment for an infraction $300. Therefore, the fines established by Prop. l.C.
§ 37-2732(c)(4) are not legal, and must be revised accordingly. Third, the definition of
"marijuana" is inconsistent with the definition set out in l.C. § 37-2701(t), which excludes from
the definition:
... the mature stalks of the plant ... , fiber produced from the stalks, oil or cake
made from the seeds or the achene of such plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the mature stalks, except
the resin extracted therefrom or where the same are intermixed with prohibited
parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is
incapable of germination ....
As a result of defining marijuana more broadly (i.e., with no exclusions) than l.C. § 372701 (t), Prop. l.C. § 37-2732(c)(4) theoretically punishes, as an infraction, the possession of
parts or products of marijuana plants that has previously been legal.
The last paragraph of proposed l.C. § 37-2732(c)(4) provides that 50% of all funds
generated by marijuana possession tickets will go to the Idaho Department of Education, and
the remainder will be placed into the state's general fund. Local courts collect and distribute
funds from infraction tickets pursuant to legally prescribed methods and procedures. Therefore,
this provision may be in conflict with laws pertaining to such methods of disbursement.
3.

Section 3: Decriminalization of Possession of Marijuana-Related Drug
Paraphernalia and Exclusion From Prosecution for Participants in Idaho's
Medical Marijuana Program

Section 3 of the initiative seeks to amend l.C. § 37-2734A by adding subsection (4),
which would (1) decriminalize the possession of marijuana paraphernalia by any person, and (2)

The Honorable Lawerence Denney
March 10, 2015
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exclude participants in the Idaho Medical Marijuana Program from infraction penalties for such
possession. The proposed statute reads:
Any person who is found to possess marijuana-related drug
paraphernalia is guilty of an infraction and upon conviction may be fined not more
than five hundred dollars ($500) per infraction, with the exception - any person
who provides adequate recommendation to show their qualification and
participation in the Idaho Medical Marijuana Program, or another State's medical
marijuana program, is excluded from prosecution under this law.
Prop. l.C. § 37-2734A(4). As noted above, l.C. § 18-113A makes the maximum punishment for
an infraction $300. Therefore, the $500 fine proposed by the addition of subsection (4) is
inconsistent with this statute. Next, subsection ( 1) of I. C. § 37-2734A makes it unlawful to
possess (etc.) drug paraphernalia. 5 That subsection should be amended to exclude possession
of marijuana-related drug paraphernalia as described in subsection (4) of Prop. l.C. § 37-2734A.
As with Section 2 of the initiative (decriminalization of possession of three ounces or less
of marijuana), Prop. l.C. § 37-2734A(4) provides that 50% of all funds generated by marijuanarelated paraphernalia tickets will go to the Idaho Department of Education, and the remainder
will be placed into the state's general fund. Because local courts collect and distribute funds
from infraction tickets in accordance with legally prescribed methods, this provision may conflict
with such laws.
4.

Section 4: Establishment of Idaho Industrial Hemp Program

Section 4 of the initiative proposes to add the "Idaho Industrial Hemp Act" as chapter 54
of title 22 of the Idaho Code, under the Idaho Department of Agriculture's supervision. Prop.
l.C. § 22-5400, et seq. The Industrial Hemp Act's intent is "to establish policy and procedures
for growing industrial hemp in Idaho so that farmers and other businesses in the Idaho
agricultural industry can take advantage of this market opportunity." Prop. l.C. § 22-5403.
"Industrial hemp" is defined as "varieties of the plant cannabis sativa having no more than 0.3
percent tetrahydrocannabinol (THC), whether growing or not, that are cultivated or possessed
by a licensed grower in compliance with this chapter."
Several points of clarification and/or correction are initially warranted. The Act sets up a
licensing process overseen by the "Director," who is further described as the "Director of
agriculture, food and markets." Prop. l.C. §§ 22-5404(4), 22-5406(a). Such an official position
does not exist in Idaho, and it is presumed that this provision should be corrected to identify
"Director" as the Director of the Department of Agriculture for the State of Idaho. Similarly, the
Act describes a "secretary" as having a role in the licensing process, but it is unclear who that
reference pertains to. See Prop. l.C. §§ 22-5406(c)(1), 22-5406(d)(3). Also, in order to obtain a
license, an applicant must give written permission to have a criminal conviction record procured
by the "Idaho criminal information center," an agency that does not exist in Idaho. See Prop.
1.C. §§ 22-5406(c)(1), 22-5406(d)(1).
The basic requirements for obtaining a hemp grower's license, valid for two years and
renewable, are that the person or business entity may not have any felony convictions in any
5

Subsection (3) of l.C. § 37-2734A makes a violation of subsection (1) a misdemeanor, punishable by not
more than one year in imprisonment and a $1,000 fine, or both.

The Honorable Lawerence Denney
March 10, 2015
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state; they must authorize a check of their criminal history; provide sufficient information to show
the intent and capability to grow industrial hemp; file documentation with the Director "certifying
that the seeds obtained for planting are of a type and variety compliant with the maximum
concentration of tetrahydrocannabinol (THC)" (i.e., .3% or less); maintain records of sales and
production and records showing compliance with the laws. Prop. l.C. §§ 22-5406(a)-(f). A
unique requirement is that the grower must also ensure "that all parts of the industrial hemp
plant that do not enter the stream of commerce as hemp products are destroyed, incorporated
into the soil, or otherwise properly disposed of." Prop. l.C. §§ 22-5406(e)(1). A grower must
also allow the Director (or designee) to inspect, at their discretion, the hemp growing process at
each point of sowing, growing, harvesting, storage and processing. Prop. l.C. §§ 22-5406(g).
The Director must adopt rules for regulating the Industrial Hemp Act, including rules for
testing industrial hemp during growth for THC levels and for supervising "the industrial hemp
during sowing, growing season, harvest, storage and processing." Prop. l.C. §§ 22-5408. The
Director is given authority to revoke industrial hemp grower licenses for false statements or
misrepresentations on an application for a license (or renewal), and failure to comply with the
provisions of the Idaho Hemp Act and rules promulgated under it. Prop. l.C. §§ 22-5407. The
Department of Agriculture is tasked with submitting an annual report to the legislature, without
any identifying information about licensed growers, containing the number of industrial hemp
licenses and renewals, the number of revocations and suspensions of licenses, and the number
of industrial hem producers and earnings in fees. Prop. l.C. §§ 22-5409.
If the Department fails to adopt rules to implement the Idaho Industrial Hemp Act within
120 days of the Act's enactment, any citizen may commence a mandamus action to compel
compliance. Prop. l.C. § 22-5412(1 ), (2). If the Department fails to issue an industrial hemp
license (or renewal) or notice of denial within 45 days of submission of such application, a copy
of the application is deemed a valid industrial hemp license. Prop. l.C. § 22-5412(3). If the
Department is not accepting applications or has not adopted rules allowing Idaho farmers to
submit applications within 140 days after enactment of the Idaho Industrial Hemp Act, a
"notarized statement" by an applicant containing the information required in an application
pursuant to Prop. l.C. § 22-5406 "is deemed an industrial hemp license." Prop. l.C. § 225412(4).
For consistency and clarity, the Idaho Industrial Hemp Act should be accompanied with
exclusionary provisions allowing licensed growers to possess industrial hemp and growing
materials without committing infractions as provided in Section 2 (possession of three ounces of
marijuana or less) and Section 3 (possession of marijuana paraphernalia).
5.

Section 5: Severability

Section 5 of the initiative, entitled "Severability," states, if any provision of this Act "is
declared invalid for any reason, such declaration shall not affect the validity of the remaining
portions of this act."
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 Lawerence Denney
March 10, 2015
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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, 55 U.S. 13, 19-20, 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 Lawerence Denney
March 10, 2015
Page 13of16

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, 644
(unpublished) (9 1h 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),
1221 O(a); 29 U.S.C. § 705(20)(C)(i).

The Honorable Lawerence Denney
March 10, 2015
Page 14 of 16
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, none of the provisions of the initiative can 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" throughout its provisions. The findings 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, Section 1 of the initiative, regarding the proposed Idaho Medical
Marijuana Program, has several other aspects that merit consideration, described as follows:
1.
Prop. l.C. § 39-9203(4)(a) reads in part, "agitation of Alzheimer's disease," which
would be more correctly phrased "agitation of Alzheimer's patients."
2.
Under Prop. l.C. § 39-9203(1 ), medical marijuana organization agents cannot
have been convicted of a felony offense (as defined), but there is no such requirement for
caregivers under Prop. l.C. § 39-9203(6), which may be intentional or an oversight.
3.
Prop. l.C. § 39-9203(4)(a) defines "debilitating medical condition" as including a
list of conditions "or the treatment of these conditions." However, Prop. l.C. § 39-9203(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,
severe and chronic pain, (etc.)." It is recommended that the phrase "or the treatment of these
conditions" be excised from Prop. l.C. § 39-9203(4)(a) as surplusage.
4.
In Prop. l.C. § 39-9203(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.

The Honorable Lawerence Denney
March 10, 2015
Page 15 of 16
5.
Prop. l.C. § 39-9203(5) should appropriately capitalize the reference to the
Department of Health and Welfare, which capitalization should be consistent throughout the
initiative. Likewise, "Department" should be capitalized throughout the initiative.
6.
7.
of 39-9204.

Prop. l.C. § 39-9203(7) is preceded by "Qatar," which should be omitted.
Prop. l.C. § 39-9206(1 )(a) misidentifies a proposed provision as 39-9104, instead

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. l.C. § 39-9204(2); cf. Prop. l.C.
§ 39-9206(1 )(a). It is recommended that the provision be modified to allow for public hearing,
notice and public comment.
9.
Prop. l.C. § 39-9207(e) appears to allow only one medical marijuana dispensary
in counties of over 20,000, which is inconsistent with Prop. 1.C. § 39-9207(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. l.C.
§§ 39-9208(2), 39-9209(1). It is recommended that social security numbers, 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 are no criteria for a registry identification card to have the "cultivator"
authorization on it. See Prop. l.C. §§ 39-9203(2)(a)(ii) and (b)(ii), 39-9209(1)(c)(v), 39-9210(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. l.C. § 39-9206.
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.l.C. system or some other format, and does not explain
who qualifies as a "prospective" medical marijuana organization agent. See Prop. 1.C. § 399210(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. l.C. § 39-9220. If an oversight, it is recommended that
additional criteria concerning finances be included in the provision.
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

The Honorable Lawerence Denney
March 10, 2015
Page16of16
to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Dana
Wilson , 901 Sapphire Ct., Nampa, Idaho 83686.

LAWRENCE G. WASDEN
Attorney General
Analysis by:

JOHN C. McKINNEY
Deputy Attorney General