What did the Idaho Attorney General's 2016 review of the proposed Idaho Medical Marijuana Act flag as legal problems before the petition could be circulated, even though the AG took no position on the policy?

Subject

Certificate of Review under Idaho Code § 34-1809 of a proposed initiative titled the "Idaho Medical Marijuana Act," which would have created a comprehensive registration and dispensing system administered by the Idaho Department of Health and Welfare for cultivation, sale, possession, and use of marijuana by qualifying patients with practitioner recommendations.

Currency note

This opinion was issued in 2016. The federal Controlled Substances Act analysis it relied on remains structurally intact, but federal enforcement priorities, state law in Idaho, and case law on employment and housing accommodations for medical-marijuana use have continued to evolve. Treat this page as historical context describing the 2016 advisory review, not as a current statement of Idaho or federal law.

Plain-English summary

The proposed Idaho Medical Marijuana Act ("the Act") would have created a state registration system letting patients with qualifying medical conditions, their caregivers, and licensed growers cultivate, possess, and dispense marijuana under state law without state criminal liability. The Act tracked the structure of medical-marijuana programs already operating in other states, with registry identification cards, dispensary licensure, security and recordkeeping rules, and broad immunities from civil and criminal sanctions for compliant participants.

Under Idaho Code § 34-1809, the Attorney General must review every initiative petition before circulation. The 2016 review of the Act covered a long list of legal concerns:

Code citation collision. The Act proposed to be codified as Idaho Code § 39-9200 et seq., but that section number was already in use by the Idaho Direct Primary Care Act, enacted in 2015. The opinion treated the proposal as if codified at chapter 93 of title 39 (§ 39-9300 et seq.) for purposes of analysis.

Definitional gaps. Idaho law does not classify felonies as "class A or B," yet the Act's definition of "grower" referred to convictions for class A or B felonies. Some terms (like "Ombudsman") had incomplete or contradictory definitions. The defined "Discrimination Prohibited" provisions were unclear about which proceedings (criminal, civil, administrative) they covered.

Constitutional and statutory framework problems.

• A provision saying "[n]o county, city, or legislature may enact a moratorium" appeared to be an unlawful attempt to bind future legislatures. The Idaho Supreme Court in Gibbons v. Cenarrusa, 140 Idaho 316, 320 (2002), and earlier in Luker v. Curtis, 64 Idaho 703 (1943), held that initiative-enacted laws stand on equal footing with legislative laws and may be amended or repealed by the legislature; the legislature cannot be bound from doing so.
• The driving-under-the-influence provision would have required prosecutors to show both "slurred speech and lethargic movements" to prove patient impairment, conflicting with Idaho's existing DUI framework that already requires proof of impairment regardless of substance.
• The "child neglect" admissibility provision required clear-and-convincing evidence of substantial endangerment before evidence of medical-marijuana use could be admitted, requiring a "trial within a trial" inconsistent with Idaho's relevance-based admissibility under I.R.E. 401.
• The "affirmative defense" provision would have allowed dismissal before trial on the basis of an affirmative defense, an unprecedented procedural tool in Idaho criminal practice.

Federal law preemption. The largest substantive concern was that, under the "separate sovereigns" doctrine (United States v. Wheeler, 435 U.S. 313 (1978); Moore v. Illinois, 14 How. 13 (1852); State v. Marek, 112 Idaho 860 (1987)), Idaho can decriminalize conduct under state law, but cannot bar the federal government from prosecuting the same conduct under the federal Controlled Substances Act. United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), held that there is no medical-necessity defense to federal CSA prosecution. Similarly, Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008), and Emerald Steel Fabricators v. Bureau of Labor and Industries, 230 P.3d 518 (Or. 2010), held that the Fair Housing Act, ADA, Rehabilitation Act, and Oregon employment discrimination law did not require accommodation of medical-marijuana use because the underlying drug use remained illegal under federal law.

Practical implications the AG flagged. The Act would decriminalize possession of up to 24 ounces of marijuana for patients (a quantity that, under Idaho Code § 37-2732B(a)(1)(A), constitutes "trafficking" punishable by up to 15 years in prison with a one-year mandatory minimum). The Act granted compliant patients, caregivers, growers, and dispensaries broader civil and criminal protections than Idaho law provided to users of prescription drugs or alcohol. Searches, probable-cause determinations, and child-protection actions would all be constrained by Act-specific evidentiary rules.

Form recommendations. The opinion also flagged a long list of structural and drafting issues: misplaced "WHEREAS" clauses, incomplete provisions on growing and dispensing standards, missing operational standards for the Ombudsman, internal cross-referencing errors (a subsection numbered "iiii" should be "iv"), and a missing severability clause. The Act's lack of a severability clause meant a court invalidating any one provision could potentially take down the entire scheme.

Common questions

Q: Is a Certificate of Review the AG's "approval" of the initiative?

No. It is an advisory review under Idaho Code § 34-1809 of form, style, and "matters of substantive import." The recommendations are explicitly advisory; petitioners are free to accept or reject them in whole or in part. The AG offers no opinion on the policy issues.

Q: Did this initiative pass?

The Certificate of Review is one early step. Whether the petitioner pursued the initiative to signature gathering and the ballot is a separate matter that this page does not track. Idaho voters did approve a different ballot measure on Medicaid expansion in 2018, but medical marijuana has remained illegal in Idaho.

Q: Does federal preemption mean a state medical-marijuana law is invalid?

The opinion did not say the state law would be invalid. It said the state law could decriminalize the conduct under state law, but it could not stop the federal government from enforcing the federal Controlled Substances Act against the same conduct, and could not require federally regulated entities (housing authorities, employers covered by the ADA) to accommodate federally illegal drug use.

Q: What is the "separate sovereigns" doctrine?

The principle that a state and the federal government are separate sovereigns, each with its own criminal laws. Conduct that violates both state and federal law can be prosecuted by both without double jeopardy concerns, citing Bartkus v. Illinois, 359 U.S. 121 (1959), and Abbate v. United States, 359 U.S. 187 (1959). State decriminalization does not bar federal prosecution.

Background and statutory framework

Idaho Code § 34-1809 governs the Attorney General's pre-circulation review of initiative petitions. Idaho Code § 34-1804 distinguishes initiatives (proposed laws) from referenda (legislative acts).

Idaho Code § 37-2732B is the trafficking-quantities statute that frames the magnitude of the criminal exposure the Act sought to displace.

Federal preemption rests on the Controlled Substances Act, 21 U.S.C. § 801 et seq., which categorizes marijuana as a Schedule I controlled substance. Federal civil rights statutes that interact with state medical-marijuana laws include 42 U.S.C. § 3602(h) (Fair Housing Act exclusion of illegal drug use), 42 U.S.C. § 12210(a) (ADA exclusion), and 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act exclusion). Each excludes "illegal drug use" from the protected class.

Citations

Idaho Code:
- § 34-1804; § 34-1809
- § 37-2732B(a)(1)(A)
- § 56-1018

Federal Statutes:
- 21 U.S.C. § 801(1) (Controlled Substances Act)
- 29 U.S.C. § 705(20)(C)(i)
- 42 U.S.C. § 3602(h); § 12210(a)

U.S. Supreme Court Cases:
- United States v. Wheeler, 435 U.S. 313 (1978)
- Moore v. Illinois, 14 How. 13 (1852)
- United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001)

Federal Cases:
- Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (unpublished)
- Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007)

State Cases:
- State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987)
- Gibbons v. Cenarrusa, 140 Idaho 316, 92 P.3d 1063 (2002)
- Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943)
- Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Or. 2010)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C09022016.pdf

Original opinion text

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

September 2, 2016

The Honorable Lawerence Denney
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 Denney:
An initiative petition was filed with your office on August 8, 2016.
Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and
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 TITLES

Following the filing of the proposed initiative, this office will prepare
short and long ballot titles. The ballot titles must impartially and succinctly
state the purpose of the measure without being argumentative and without
creating prejudice for or against the measure. While our office prepares titles

P.O. Box 83720, Boise, Idaho 83720-001 O
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferso n Street, Suite 21O

Secretary of State Denney
September 2, 2016
Page 2 of 17
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
qualifying 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 and more accurately 1 denominated as Idaho Code §
39-9300, et seq., begins with its purpose, which is:
THEREFORE the purpose of this chapter is to protect from
arrest, prosecution, property forfeiture, and criminal and all other
penalties, those patients who use marijuana to alleviate suffering
from qualifying 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 in
Idaho for legal medical use.
Prop. l.C. § 39-9302. 2
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 qualifying medical condition. Prop. l.C. § 399305. The Act directs the Department to approve or deny applications for
"registry identification cards" presented by "qualifying patients," their
"designated caregivers," "agents" of "medical marijuana organizations," and
"growers." Prop. l.C. §§ 39-9303(3), 9303(18), 9307-9312. 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. §§ 399303(12), 9303(17), 9307, 9312, 9314. The Act permits, without state, civil or
1

The Act incorrectly designates its tentative statutory provisions as l.C. § 39-9200, et
seq. In 2015, the Idaho Legislature enacted the "Idaho Direct Primary Care Act" under I. C. § 399200, et seq. Therefore, the Act's statutory citations to l.C. § 39-9200, et seq will be modified
without further explanation to reflect that the Act proposes a new chapter 93 of title 39.
2
References to "proposed" l.C. § 39-9300, et seq., will read, "Prop. l.C. § 39-9300," etc.

Secretary of State Denney
September 2, 2016
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criminal sanctions, marijuana to be produced by medical marijuana production
facilities throughout the state (and qualified patients and/or designated
caregivers and growers 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 twenty-four (24) ounces of usable 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 twelve (12)
marijuana plants in an enclosed locked facility, etc., and any marijuana
produced from those plants, (2) designated caregivers ("caregivers") may
assist up to three (3) patients' medical use of marijuana, and may
independently possess, for each patient assisted, the same amounts of
marijuana described above, but not exceeding a total of thirty-six (36)
marijuana plants (assuming the caregiver's registry identification card bears a
"cultivator" exemption). Prop. l.C. § 39-9303(2). Additionally, a "grower" "can
grow for up to four (4) patients, including themselves." Prop. l.C. § 39-9315.
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 (l.C. § 18-5400, et seq.)) provide a "written recommendation"
stating 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 qualifying medical condition or symptoms
associated with the qualifying medical condition." Prop. l.C. §§ 39-9303(15),
9303(23).
The "recommendation" must specify the patient's qualifying
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." Prop. l.C. § 39-9303(23). Minors are also entitled to be issued
registry identification cards as patients under certain criteria. Prop. l.C. § 399309(2).
A "qualifying medical condition" includes, but is not limited to, those
"chronic [3J diseases and conditions" specifically listed (such as cancer,
3

Merriam-Webster's Learner's Dictionary defines "chronic" as: medical
: continuing or occurring again and again for a long time
: happening or existing frequently or most of the time
: always or often doing something specified
Merriam Webster's Learner's Dictionary, http://www.merriam-webster.com/dictionary/chronic
(Aug. 30, 2016).

Secretary of State Denney
September 2, 2016
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glaucoma, HIV, AIDS, "agitation of Alzheimer's disease," post-traumatic
stress syndrome, etc.), but also any treatment of those conditions "that
produces cachexia or wasting syndrome and chronic pain, nausea, seizures,
including those characteristic of epilepsy, or persistent muscle spasms,
including those characteristic of multiple sclerosis," any terminal illness with
life expectancy of less than twelve (12) months, or "[a]ny other medical
condition or its treatment added by the Department." Prop. l.C. § 39-9303(4).
The Act also has what appears to be a "catch-all" provision, which states that
"[a]ny condition deemed necessary by a licensed practitioner; or acute
conditions" are also qualifying medical conditions. Prop. l.C. § 39-9303(4)(d).
"Agents" are defined as principal officers, board members, employees,
or volunteers of a medical marijuana organization who are at least twenty-one
(21) years old and who have "not been convicted of a felony offense as
defined." Prop. l.C. § 39-9303(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. § 39-9303(9). Caregivers are required to be at least twentyone (21) years old, "agree to assist no more than three (3) qualifying patients
at the same time, and cannot have been convicted of a felony as defined
herein. Prop. l.C. § 39-9303(7). A "grower" "means a person who has been
designated by a patient to be their medical marijuana grower, to be registered
with the Department of Health and Welfare; must be at least 18 years of age;
must have a valid US or federally issued photo l.D.; must not have been
convicted of any class A or B felony 4 for manufacture or delivery of a
controlled substance in the previous two (2) years; not growing for more than
four (4) patients including him or herself." Prop. § 39-9303(5) (verbatim).
Patients, caregivers, growers, and agents may apply for registry
identification cards.
Prop. l.C. §§ 39-9307 (agents); 9308 (patients,
caregivers, and growers). To obtain a registry identification card, a patient5
must submit a written commendation issued by a practitioner within the last
ninety (90) days, application and fee, with identifying information pertaining to
the patient, the patient's practitioner, and the patient's caregiver. Prop. § 399308( 1). 6 The Department is obligated to verify the information in an
application (or renewal request) for a registry identification card within ten (10)
days after receiving it, and must issue a card within five (5) more days
thereafter. Prop. l.C. § 39-9309(1 ). A registry identification card must include
4

Idaho does not classify its felony crimes as class A or B; therefore, that aspect of the
felony condition should be deleted.
5
Even though Prop. l.C. § 39-9308 is entitled "Registration of Qualifying Patients,
Designated Caregivers, and Growers," the requirements for submitting an application for a
registry identification card appear to relate solely to patients. See Prop. l.C. § 39-9308(1 ).
6
The Act also allows "visiting qualifying patients" from other states to possess medical
marijuana while in Idaho. Prop. l.C. § 39-9303(22).

Secretary of State Denney
September 2, 2016
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a "random twenty (20) digit alphanumeric identification number that is unique
to the card holder." Prop. l.C. § 39-9310(1 )(d). Registry identification cards
issued to agents of medical marijuana organizations must include a
"statement that the cardholder is an agent of a medical marijuana dispensary,
a medical marijuana production facility, or a safety compliance facility." Prop.
l.C. § 39-9310(2)(b). 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.
§ 39-9311. Registry identification cards expire after one (1) year, and may be
renewed for a fee. Prop. l.C. § 39-9312.
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. l.C. § 39-9314. Medical marijuana production facilities must restrict
marijuana cultivation, harvesting, etc., within an enclosed, locked facility only
accessible to registered agents. Prop. l.C. § 39-9314(3). Medical marijuana
production facilities and dispensaries "may acquire usable marijuana or
marijuana plants from a registered qualifying patient or a registered
designated caregiver only if the ... patient or ... caregiver receives no
compensation for the marijuana." Prop. l.C. § 39-9314(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. § 39-9316(1). Patients are required to notify the Department within ten
(10) 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 (10) days to issue a new registry
identification card. Prop. l.C. § 39-9317(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. l.C. § 39-9317(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. § 39-9319(1 ), (2).
The "Limitations" provision, Prop. l.C. § 39-9304, states that, when any
civil, criminal, or other penalty is sought to be imposed on a patient (or visiting

Secretary of State Denney
September 2, 2016
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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. § 39-9304(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 will increase the
State's burden in driving under the influence cases by specifically defining
how the offense must be proved, and may preclude successful prosecution of
defendants who choose not to speak at all.
Prop. l.C. § 39-9306(4) states, "No county, city, or legislature may
enact a moratorium in any city, county, or state[.)" Not only is the provision
vague about what type of moratorium it precludes, but such a provision
appears to be an unlawful attempt to bind future legislatures. As explained by
the Idaho Supreme Court in Gibbons v. Cenarrusa, 140 Idaho 316, 320, 92
P.3d 1063, 1067 (2002):
The legislature cannot violate the reserved right of the people to
propose laws and enact them at the polls. That process is, in the
language of Article Ill, Section 1 of the Constitution,
"independent of the legislature." However, as determined in
Luker [v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943)], once a law
is enacted in the initiative process it is like any other law. It may
be amended or repealed by the legislature or subsequent
initiative. . . . Initiatives and laws passed by the legislature are
on equal footing. The legislature may change the effective date
of any law it passes. This legislative right includes repeal of an
initiative, which once enacted, is treated as "other ordinary
legislative measures."
Prop. l.C. § 39-9320 creates a rebuttable presumption that patients,
caregivers, and growers are deemed to be lawfully engaged in the medical
use of marijuana if their conduct complies with the Act. Significantly, the
proposed statute provides that patients, caregivers, growers, 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

Secretary of State Denney
September 2, 2016
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court or occupational or professional licensing board or bureau for conduct
authorized by the Act. See generally Prop. l.C. § 39-9320. Practitioners are
protected from sanctions for conduct "based solely on providing written
recommendations" (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 or care for
evaluating medical conditions." Prop. l.C. § 39-9320(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. § 39-9320(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. § 39-9320(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 search of the person or property of the person possessing or
applying for the registry identification card." Prop. l.C. § 39-9320(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. § 39-9320(11) states that "[n]o 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 registered 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, pre-school, 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. § 399304.
Prop. l.C. § 39-9320(13) reads:
A qualifying patient, designated caregiver, or grower 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's medical use of
marijuana, in compliance with the terms of this chapter, absent
written finding supported by substantial evidence that such use

Secretary of State Denney
September 2, 2016
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has resulted in a long-term impairment that interferes with the
performance of parenting functions.
In short, Prop. l.C. § 39-9320(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 "shortterm." Idaho law currently recognizes no "short-term impairment" exception to
its criminal or parental-related laws for any other substance, whether legally
prescribed or not.
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, the prevention of theft of marijuana and security at facilities,
oversight, recordkeeping, safety, and safe and accurate packaging and
labeling of medical marijuana. Prop. l.C. § 39-9305. 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. § 39-9305(1 )(e)(i). The same self-funding requirement is repeated
in Prop. l.C. § 39-9305(1 )(e)(iii). A "medical marijuana fund" is established by
Prop. l.C. § 39-9326, consisting of "fees collected, civil penalties imposed,
and private donations received under this chapter," and is to be administered
by the Department.
Under the heading "Affirmative Defense," the Act provides that
patients, visiting patients, growers, 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. § 39-9321 (1 ). If evidence shows that the listed
criteria are met, the defense "must be presumed valid." Id. Further, Prop. l.C.
§ 39-9321 (2) allows a person to assert the "medical purpose for using
marijuana 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 )."
The provision gives defendants the unprecedented

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September 2, 2016
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opportunity of having an affirmative defense be the basis not only of acquittal
at trial, but dismissal prior to trial. Finally, if the patient, grower, 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. § 39-9321 (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. § 399322(1 ). Prop. l.C. § 39-9322(5) further states:
In any criminal, child protection, and family law
proceedings, allegations of neglect or child endangerment by a
qualified patient or qualified caregiver for conduct allowed under
this chapter are not admissible to the court, without substantial
evidence that the person's behavior creates an unreasonable
danger to the safety of 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.
Under Prop. l.C. § 39-9322(5), before evidence of medical marijuana use
could be admitted in a court proceeding, the court would have to determine
whether, by clear and convincing evidence, the neglect or endangerment of a
child was directly caused by a patient's or caregiver's medical use of
marijuana. Only once such a high evidentiary standard has been met could a
court allow evidence that the patient or caregiver used medical marijuana.
Requiring a court to make such a written finding during an ongoing court
proceeding would constitute, in effect, a trial within a trial.
Such an
admissibility finding would necessarily include one of the ultimate
determinations -- that the child has been neglected or endangered.
Additionally, the "clear and convincing" threshold for the admission of
evidence runs counter to the "relevance" standard Idaho courts generally
apply. See I.RE. 401 ("All relevant evidence is admissible except as
otherwise provided by these rules or by other rules applicable in the courts of
this state.").
Prop. l.C. § 39-9303 (emphasis added), entitled "Acts Not Required Acts Not Prohibited" states in part:
(1) Nothing in this chapter requires:

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(c) An employer to allow the ingestion of marijuana in any
workplace or any employee to work while under the
influence of marijuana, except a registered qualifying
patient may not be considered to be under the influence of
marijuana solely because of the presence of metabolites
or components of marijuana without written findings of
substantial impairment.
The language of Prop. l.C. § 39-9303(1 )(c) lacks specificity about the
type of proceedings it applies to, whether criminal, civil, or administrative. As
an "exception to an exception" within the Idaho Medical Marijuana Act, the
provision may conflict with existing Idaho employment law and/or contractual
agreements in regard to employees' use of controlled substances in, or
affecting, the workplace.
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. §§ 39-9324, 9325. Under Prop. l.C. §
39-9324(7), it is a "misdemeanor for any person, including an employee or
official of the Department or another state agency or local government, to
breach the confidentiality of information obtained pursuant to this chapter."
Subsection (8) of Prop. l.C. § 39-9324 reads, "[a] person who intentionally
makes a false statement to a law enforcement official about any fact or
circumstance relating 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.
If the Department fails to adopt rules to implement the Act within one
hundred twenty (120) days of the Act's enactment, any citizen may
commence a mandamus action to compel compliance. Prop. l.C. § 399327(1 )-(2). If the Department fails to issue or deny an application or renewal
for a registry identification card within forty-five (45) days after submission of
such application, a copy of the application is deemed a valid registry
identification card. Prop. l.C. § 39-9327(3). Further, if the Department is not
accepting applications or has not adopted rules for applications within one
hundred forty (140) days after enactment of the Act, a "notarized statement"
by a patient containing the information required in an application, with a
written recommendation issued by a practitioner, etc., will be deemed a valid
registry identification card. Prop. l.C. § 39-9327(4). The Department must
submit an annual public report to the legislature with information set out in
Prop. l.C. § 39-9318.

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Notably, the Act does not contain a "Severability Clause" stating that if
any of its provisions are declared invalid for any reason, such a declaration
would not affect the validity of the remaining portions of the Act.
In sum:
1.
The Act generally decriminalizes under state law the possession
of up to twenty-four (24) ounces of marijuana and (if authorized as a
"cultivator") twelve (12) marijuana plants for patients, and the same amounts
(up to three (3)) per patient for caregivers and growers. For comparison,
possession of twenty-four (24) ounces of marijuana qualifies as "trafficking in
marijuana" and is punishable by up to fifteen (15) years in prison with a
mandatory minimum sentence of one (1) year imprisonment. l.C. § 372732B(a)(1 )(A).
2.
The Act 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. Notably, the Act grants extensive protections from
civil liability, criminal punishment, or child protect protective actions not
granted to users of prescription drugs or alcohol.
3.
Patients certified by practitioners as having qualifying medical
conditions may obtain marijuana for medicinal use from their (or their
caregiver's) cultivation of marijuana (if authorized on the registry identification
card), a grower, or a medical marijuana dispensary.
4.
Patients, caregivers, growers, 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.
5.
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 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, and oversight, maintaining and enforcing confidentiality of
records, and providing an annual report to the Idaho Legislature.

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B.

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

Idaho is free to enforce its own laws, just as the federal government is
free to do the same. The United States Supreme Court has explained:
In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate
v. United States, 359 U.S. 187 [1959], ... this Court reaffirmed
the 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:

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September 2, 2016
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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:
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

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September 2, 2016
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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. 7
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) (91h 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).
7

According to the Federal Register's Daily Journal of the United States Government,
"[b]y letter dated July 19, 2016 the Drug Enforcement Administration (DEA) denied a petition to
initiate
rulemaking
proceedings
to
reschedule
marijuana."
Federal
Register,
https://federalregister.gov/a/2016-17954 (Aug. 30, 2016); See 81 Fed. Reg. 53687-53766 (Aug.
12, 2016).

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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 "findings" in Prop. l.C. § 39-9302 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.
The first "WHEREAS" clause ("25 States," etc.) and the
"THEREFORE" clause on the first page should be deleted. They are
repeated after Prop. l.C. § 39-9301, where they should be located.
2.
The second "WHEREAS" clause on the first page ("citizens of
Idaho," etc.) should be moved to the second page under "Findings" (Prop. l.C.
§ 39-9302).
3.
Prop. l.C. § 39-9315, "Growing and Dispensing for Medical
Marijuana Use" lacks standards. It reads only that, "(1) Grower can grow for

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September 2, 2016
Page 16 of 17
up to four (4) patients, including themselves." Id. The provision fails to state
where and under what conditions medical marijuana may be grown, and how
it is to be dispensed.
4.
Prop. l.C. § 39-9303(4)(a) reads in part, "agitation of Alzheimer's
disease," which would be more correctly phrased "agitation of Alzheimer's
patients."
5.
In Prop. l.C. § 39-9303(11 ), a "medical marijuana dispensary or
collective" is defined. However, the word "collective" does not appear
elsewhere in the Act, and should be deleted as unnecessary.
6.
Prop. l.C. § 39-9303(23)(a) states that the practitioner must
"[s]pecify the qualifying patient's qualifying medical condition in the written
The italicized portion of the
recommendation; and HfPAA compliant."
provision should presumably read, "and must be HIPAA compliant."
7.

Prop. l.C. § 39-9303(24), defining "Ombudsman," states:
'Ombudsman' means an official appointed to investigate
individuals'
complaints
against
maladministration,
especially that of public authorities.
(a) licensed practitioner
(b) that they mediate between the Dept. of Welfare
and Idaho Medical Marijuana Program

Prop. l.C. § 39-9303(24) does not state how an Ombudsman is
appointed (or by whom), or what powers an Ombudsman has. Also, it is
unclear what is intended by the reference to "licensed practitioner[s]," as they
will unlikely be administrative "public authorities" made "especially" subject to
Lastly, the reference to "Dept. of Welfare" should read
investigation.
"Department of Health and Welfare."
8.
Prop. l.C. § 39-9305(3), under the "Rulemaking" heading, states,
"Ombudsman must be a licensed practitioner." This provision should be
moved to Prop. l.C. § 39-9303(24), which defines "Ombudsman."
9.
Prop. l.C. § 39-9308(1 )(c) has a subsection numbered (iiii),
which should be changed to (iv).
10.
Prop. l.C. § 39-9318(8), does not give specific requirements for
the Department to meet in submitting "financial information regarding the

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implementation and/or maintenance of the Act's provisions" in its Annual
Report to the legislature.
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 Tesla Heidi Gillespie, 4948
W. Kootenai St. #203, Boise, Idaho 83705.
Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:

JOHN C. McKINNEY
Deputy Attorney General