Did the Idaho AG identify legal problems with the July 2019 medical marijuana initiative (proposed Chapter 96 of title 39, Idaho Code)?

Subject

The Idaho AG's advisory Certificate of Review under Idaho Code § 34-1809 of a citizen initiative (filed June 27, 2019 by petitioner John Belville) that proposed adding a new chapter 96 to title 39, Idaho Code, to legalize medical marijuana in Idaho. This was one of several similar marijuana initiatives that did not qualify for the Idaho ballot during this period.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. As of late 2025, Idaho has not legalized medical marijuana, though additional medical marijuana initiatives have continued to be filed and reviewed in later years. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

This July 2019 initiative was the petitioner's revised attempt at putting medical marijuana on the Idaho ballot, after AG Wasden's earlier April 2019 review (covering a chapter 92 version that bundled hemp legalization) had pointed out a single-subject problem and other defects. The July version dropped the hemp piece and slimmed the proposal to medical marijuana alone. The AG's certificate still identified a long list of issues.

Numbering and drafting. Chapter 96 of title 39 had already been used in the 2019 legislative session for "Maternal Mortality Review," so all references to the new chapter would need to be renumbered. Several minor drafting fixes (commas, missing words, mislabeled subsections) were also flagged.

Hardship cultivation ambiguity. The Act allowed a "hardship cultivation designation" letting either a qualifying patient or that patient's caregiver cultivate up to six plants. The AG read the text as allowing one or the other (six plants total), but warned the language was ambiguous and could be read to permit twelve plants.

Vague terms. The provision that "[a] medical marijuana dispensary agent must not believe that the amount dispensed would cause the card holder to possess more than the allowable amount" rested on a subjective belief test that the AG flagged as vulnerable to a vagueness challenge. The protection of property "unrelated" to the medical use of marijuana from forfeiture had a similar problem. The use of "usable marijuana" without a definition was also flagged.

Reporting restrictions. The Act conditioned Department of Health & Welfare employees' reporting of suspected fraud or criminal violations to law enforcement on a supervisor agreeing first. The AG warned this could be construed to prohibit individual employees from reporting suspected crimes, raising a First Amendment problem.

Federal preemption is the big one. The AG devoted a full section to explaining that, even if voters approved the Act, anyone exempted from state criminal liability would still be exposed to federal criminal liability. Three doctrines combined to make this point:

• Separate sovereigns. A state prosecution does not bar a federal one and vice versa. United States v. Wheeler, 435 U.S. 313 (1978).
• No medical-necessity defense under federal law. United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001), held that the Controlled Substances Act contemplates no medical-necessity exception. State legalization does not change federal status.
• Federal housing and employment law. The Fair Housing Act, ADA, and Rehabilitation Act all expressly exclude illegal-drug users. Assenberg v. Anacortes Housing Authority (9th Cir. 2008) applied that to a state-authorized medical marijuana user evicted from public housing. The Oregon Supreme Court held in Emerald Steel Fabricators that an employer was not required to accommodate an employee's state-authorized medical marijuana use.

The takeaway: the Act's anti-discrimination and immunity provisions could deliver state-law protection only. They could not insulate Idaho cardholders from federal prosecution, federal housing rules, or federal-law-driven employer decisions.

The recommendations were "advisory only." Petitioners were free to revise or proceed.

Common questions

Q: Did this initiative pass or even reach the ballot?

No. This July 2019 version did not qualify for the Idaho ballot. Subsequent medical marijuana initiatives have been filed in later years; as of this writing, Idaho has not legalized medical marijuana.

Q: How was this version different from the April 2019 version?

The April 2019 version added a hemp legalization section alongside the medical marijuana provisions, and AG Wasden warned that combining them likely violated the single-subject rule of art. XX, § 2 of the Idaho Constitution. The July 2019 version dropped the hemp piece, leaving only the medical marijuana program. Other adjustments included refinements to the application timeline, the structure of immunity provisions, and the tax allocation (50% Veterans Services / 50% General Fund in the July version, versus 50% Veterans Services / 50% Department of Education in the April version).

Q: What did the AG mean by saying the Act could not bind the federal government?

The Controlled Substances Act lists marijuana as a Schedule I controlled substance under federal law. Idaho can repeal or limit its own criminal penalties, but it cannot stop a federal prosecutor from charging cultivation, possession, or distribution as a federal crime. The U.S. Supreme Court in Oakland Cannabis Buyers' Coop. held that there is no medical-necessity defense to federal CSA charges. The same separate-sovereigns doctrine that allows two prosecutions for the same act lets the federal government enforce federal drug law inside a state that has decriminalized.

Q: What happens to a tenant in federal public housing who has a state medical marijuana card?

Per Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008), the housing authority did not violate the Fair Housing Act, ADA, or Rehabilitation Act when it terminated the lease over state-authorized marijuana use. All three federal statutes carve out illegal drug use, and marijuana use is illegal under the federal Controlled Substances Act regardless of state law. A state initiative cannot override that exclusion.

Q: Why did the AG flag the "hardship cultivation" provision as ambiguous?

Because the Act gave a registry identification card a designation indicating "whether the qualifying patient or the designated caregiver will be allowed to cultivate marijuana plants." The AG read that as choosing one or the other (six plants total). But a literal reading could be: the patient is designated to cultivate up to six plants, and the caregiver is also designated to cultivate up to six plants for that patient (twelve total).

Q: What was the "you must not believe" issue?

Section 39-9615 said that before dispensing marijuana, a dispensary agent "must not believe that the amount dispensed would cause the card holder to possess more than the allowable amount." That conditioned legal conduct on the agent's subjective belief, without any standard for assessing belief. The AG warned that a court could find the standard impermissibly vague.

Q: Why was an employee-reporting limitation a constitutional problem?

The Act required Department employees to confer with a supervisor before reporting suspected fraud or criminal violations to law enforcement. Read narrowly, this said the Department would only report through supervisor-approved channels. Read more broadly, it forbade individual employees from going to law enforcement on their own. The broader reading would have raised a First Amendment concern: government employees have constitutional protection for reporting wrongdoing.

Background and statutory framework

Idaho Code § 34-1809 requires the Attorney General to review every filed initiative within a tight statutory window and prepare an advisory Certificate of Review on form, style, and matters of substantive import. The certificate is advisory only; petitioners can ignore it.

The Controlled Substances Act, 21 U.S.C. §§ 801 et seq., classifies marijuana as a Schedule I controlled substance, the most restrictive category. The CSA's lack of a medical exception was the central holding of Oakland Cannabis Buyers' Coop.

The "separate sovereigns" doctrine allows both the federal government and a state to prosecute the same conduct without offending the Double Jeopardy Clause, because each sovereign defines its own offenses. Wheeler; Marek. Idaho's adoption of a state-law immunity does not constrain federal prosecutors.

Federal disability and housing law all carve out current illegal drug use:
- Fair Housing Act, 42 U.S.C. § 3602(h)
- Americans with Disabilities Act, 42 U.S.C. § 12210(a)
- Rehabilitation Act, 29 U.S.C. § 705(20)(C)(i)

Because marijuana is illegal under federal law, "current illegal drug use" includes state-authorized medical marijuana use, even by a registered cardholder.

Citations

Statutes:
- Idaho Code § 34-1809 (Certificate of Review requirement)
- Proposed Idaho Code §§ 39-9601 et seq. (Idaho Medical Marijuana Act, chapter 96 version)
- Idaho Code §§ 54-1801 et seq. (Medical Practice Act)
- 21 U.S.C. § 801 (Controlled Substances Act)
- 42 U.S.C. § 3602(h) (Fair Housing Act drug exclusion)
- 42 U.S.C. § 12210(a) (ADA drug exclusion)
- 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act drug exclusion)

Cases:
- United States v. Wheeler, 435 U.S. 313 (1978) (separate sovereigns)
- Moore v. People of State of Illinois, 55 U.S. 13 (1852) (separate sovereigns)
- State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987) (separate sovereigns under Idaho law)
- United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001) (no medical-necessity defense under CSA)
- Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008) (federal housing law not displaced by state medical marijuana authorization)
- Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007)
- Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, 230 P.3d 518 (Or. 2010) (employer not required to accommodate state-authorized medical marijuana)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2019/11/Certificate_07222019.pdf

Original opinion text

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

July 22, 2019

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

Certificate of Review
Proposed Initiative Creating New Medical Marijuana Act by Add ing
Chapter 96 to Title 39, Idaho Code, to Legalize the Use of Medical
Marijuana

Dear Secretary of State Denney:
An initiative petition was filed with your office on June 27 , 2019 . 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 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 should 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 21 O

Secretary of State Denney
July 22, 2019
Page 2

MATTERS OF SUBSTANTIVE IMPORT
A.

Summary of the Initiative

The initiative is self-titled the "Idaho Medical Marijuana Act" (hereafter "Act")
and is denominated as Idaho Code §§ 39-9601, et seq. 1 Primarily, the initiative
seeks to amend title 39, Idaho Code, by adding a new chapter 96, which declares
that persons engaged in the use, possession, manufacture, sale, and/or
distribution of marijuana to persons suffering from debilitating medical conditions,
as authorized by the Act, are protected from arrest, prosecution, property forfeiture,
and criminal and other penalties under Idaho law.
In general, the Act authorizes the Idaho Department of Health & Welfare
("Department") to adopt regulations necessary for the implementation of a
registration-based system for instituting and maintaining the production and
dispensing of marijuana for use by persons diagnosed with a debilitating medical
condition. Prop. I.C. § 39-9605. The Act directs the Department to approve or
deny applications for "registry identification cards" presented by "qualifying
patients" and their "designated caregivers." 2 Prop. I.C. §§ 39-9602(6), (15); 399607 to 39-9611. The Department is required to issue a "registration certificate"
to a qualifying "medical marijuana organization," defined as a "medical marijuana
dispensary, a medical marijuana production facility, or a safety compliance facility."
Prop. I.C. §§ 39-9602(10), 39-9605 to 39-9606, 39-9611, and 39-9613. The Act
permits, without state civil or criminal sanctions, marijuana to be produced by
medical marijuana production facilities throughout the state, 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.
Section 1 of the Act insulates from arrest, prosecution, and property
forfeiture, "qualifying patients" ("patients") diagnosed with having a "debilitating
medical condition" who use marijuana for medicinal purposes, as well as their
"designated caregivers" ("caregivers"). The Act establishes a complex regulatory
system whereby medical marijuana production facilities, medical marijuana
dispensaries, and safety compliance facilities are insulated from civil forfeitures
and penalties under state law. Discrimination against participants in the Act is
prohibited in regard to education, housing, and employment. The Department is
required to formulate rules and regulations to implement and maintain the Act's
1

References to "proposed" I.C. §§ 39-9601, et seq., will read, "Prop. I.C. § 39-9601," etc.
A "designated caregiver" can be a natural person or "an entity licensed in Idaho to provide
healthcare services to assist with qualifying patients' medical use of marijuana[.)" Prop. I.C. § 399602(6).
2

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July 22, 2019
Page 3

measures. Section 1 also excludes from arrest, fine, or prosecution, any persons
who possess marijuana paraphernalia who are participants in the Act's medical
marijuana program.
Section 2 states that any measures "concerning the
legalization, control, regulation, or taxation of marijuana for medical use that are
on the same ballot "shall be deemed to be in conflict with this measure," and that
this measure prevails over other measures if it "receives a greater number of
affirmative votes[.]" Section 3 is a "severability" provision which declares that, if
any provision of the Act is declared invalid, the remaining portions of the Act remain
valid. This review discusses the more notable provisions of the proposed Act in
roughly the same sequence in which they occur.
Many of the "Definitions" in Prop. I.C. § 39-9602 are also substantive
requirements under the Act. In short, they provide that: (1) patients may possess
up to four (4) ounces of marijuana and, if a patient's registry identification card
states that the patient has a "hardship cultivation designation," the patient may also
possess up to six (6) marijuana plants in an enclosed locked facility (etc.), and any
marijuana produced from the plants grown at the premises or at the patient's
residence, 3 and (2) caregivers may assist up to three (3) patients' medical use of
marijuana, and possess, for each patient assisted, the same amounts of marijuana
described above. Prop. I.C. § 39-9602(2), (6), and (15). Apart from indicating that
patients and caregivers are "not subject to arrest, prosecution, or penalty in any
manner [etc.]," Prop. I.C. § 39-9621 (1 ), there is no provision for any other person
or entity to cultivate marijuana -- except a marijuana production facility.
In order to become a "qualifying patient," a person must have a "practitioner"
(defined as a person authorized to prescribe drugs pursuant to the Medical
Practice Act (1.C. §§ 54-1801, et. seq.)) provide a written recommendation 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. I.C. § 39-9602(14), (15), and (19). The
recommendation must specify the patient's debilitating medical condition and may
only be signed (and dated) in the course of a "bona fide practitioner-patient
relationship after the practitioner has completed a full assessment of the patient's
3 If a qualifying patient's access to a marijuana dispensary is limited by proximity, financial
hardship, or physical incapacity, the Department shall issue a "hardship cultivation designation,"
allowing the patient and the patient's caregiver to "cultivate up to six (6) marijuana plants" and keep
the marijuana produced from those plants on the premises. Prop. I.C. §§ 39-9602(2)(a)(ii), (b)(ii);
39-9602(6), (15); and 39-9609. Although the "hardship cultivation designation" requires the six (6)
marijuana plants to be "contained in an enclosed, locked facility" (unless being transported), there
is no parallel provision in regard to "marijuana produced from the plants." See Prop. I.C. § 399602(2)(a)(ii), (2)(b)(ii).

Secretary of State Denney
July 22, 2019
Page 4

medical history and current medical condition." Prop. I.C. § 39-9602(19). Minors
are also entitled to be issued registry identification cards as patients under certain
criteria. Prop. I.C. § 39-9607(3).
A "debilitating medical condition" means not only the conditions listed (such
as cancer, glaucoma, HIV, AIDS, Alzheimer's disease, post-traumatic stress
disorder, etc.), but also "[a] chronic or debilitating disease or medical condition or
its treatment that produces cachexia or wasting syndrome, severe pain, 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 twelve (12) months as
determined by a licensed medical physician[,]" or "[a]ny other serious medical
condition or its treatment added by the Department pursuant to section 39-9616."
Prop. I.C. § 39-9602(4). The Act provides that the public may petition the
Department to add debilitating medical conditions or treatments to the list of those
established in Prop. I.C. § 39-9616.
"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 "meet the qualifications of this act." Prop. I.C. § 39-9602(1).
Agents of medical marijuana organizations - marijuana dispensaries, marijuana
production facilities, and marijuana safety compliance facilities - are exempt from
"prosecution, search, or inspection, except by the Department pursuant to 399613(6), seizure, or penalty in any manner, and may not be denied any right or
privilege, including civil penalty or disciplinary action by a court or business
licensing board or entity, for acting pursuant to [the Act]." Prop. I.C. § 39-9621 (6)
to (8).
Prop. I.C. § 39-9603 - "Limitations" - states that the Act's provisions do not
"prevent the imposition of any civil, criminal, or other penalties" for:
(1)
(2)

(3)

"Undertaking any task under the influence of marijuana that
would constitute negligence or professional malpractice".
"Possessing or engaging in the medical use of marijuana:
(a) On a school bus; or
(b) In any correctional facility."
"Smoking marijuana:
(a) On any form of public transportation;
(b) On the grounds of a licensed daycare, preschool, primary
or secondary school; or
(c) In any public place[;]" or

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July 22, 2019
Page 5

(4)

Operating (etc.) "any motor vehicle, aircraft, train, motorboat,
or other motorized form of transport while under the influence
of marijuana." ...

Under subsection (4) of Prop. I.C. § 39-9603, cardholders and nonresident
cardholders "may not be considered to be under the influence of marijuana solely
because of the presence of metabolites or components of marijuana that appear
in insufficient concentration to cause impairment."
Prop. I.C. § 39-9603(5) states that the Act does not "prevent the imposition
of any civil, criminal or other penalties" for persons engaging in "Solvent-based
extractions on marijuana using solvents other than water, glycerin, propylene
glycol, vegetable oil, or food grade ethanol by a person not licensed for this activity
by the Department." (Emphasis added.) This implies that persons engaged in
solvent-based extractions on marijuana using solvents consisting of "water,
glycerin, propylene glycol, vegetable oil, or food grade ethanol" are not subject to
such penalties. Whether such a provision is based upon accepted and reasonable
scientific, health, and safety considerations is beyond the scope of this review.
Prop. I.C. § 39-9604(1 )- "Facility Restrictions" - allows any "nursing facility,
intermediate care facility, hospice house, hospital, or other type of residential care
or assisted living facility" to adopt "reasonable restrictions" on the medical use of
marijuana. Those facilities do not have to store a qualifying patient's supply of
marijuana or provide marijuana to qualifying patients. Prop. I.C. § 39-9604(1 )(a)
to (b). The facilities may require that "marijuana is consumed by a method other
than smoking," and may specify the place where marijuana may be consumed.
Prop. I.C. § 39-9604(1)(c) to (d).
The Department is given the task of making extensive rules, pursuant to the
Idaho Administrative Procedure Act ("IDAPA") for implementing the Act's
measures, including rules for: the form and content of applications and renewals,
a system to "score numerically competing medical marijuana dispensary
applicants," the prevention of theft of marijuana and security at facilities, oversight,
recordkeeping, safety," and safe and accurate packaging and labeling of medical
marijuana. Prop. I.C. § 39-9605. Notably, the provision requires that, in
establishing application and renewal fees for registry identification cards and
registration certificates, "[t]he total amount of all fees must generate revenues
sufficient to implement and administer this chapter, except fee revenue may be
offset or supplemented by private donations." Prop. I.C. § 39-9605(1)(k)(i).

Secretary of State Denney
July 22, 2019
Page 6

Upon satisfactory application by a medical marijuana organization, the
Department must approve a registration certificate within ninety (90) days. Prop.
I.C. § 39-9606. Medical marijuana organizations must have operating documents
that include procedures for the oversight of the organization and accurate
recordkeeping, and are required to implement adequate security measures. Id.
Medical marijuana production facilities must restrict marijuana cultivation,
harvesting, etc., within a secure, locked facility only accessible to registered
agents. 4 Prop. I.C. § 39-9613(2). Medical marijuana production facilities and
dispensaries "may acquire 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. I.C. § 39-9613(3).
Patients may apply for registry identification cards for themselves and their
caregivers by submitting a written recommendation issued by a practitioner within
the last ninety (90) days, application, fee, and a designation "as to whether the
qualifying patient or the designated caregiver will be allowed to cultivate marijuana
plants for the qualifying patient's medical use if the qualifying patient qualifies for
a hardship cultivation designation." Prop. I.C. § 39-9607(1). 5 This provision
suggests that, if a patient has such a designation, either the patient or the caregiver
may cultivate six (6) marijuana plants and retain the marijuana from those plants
- not both (which would allow a total of twelve (12) marijuana plants). 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 twenty (20) days after receiving it, and must issue a card within ten (10)
more days thereafter. Prop. I.C. § 39-9607(2). If a registry identification card "of
either a qualifying patient or the qualifying patient's designated caregiver does not
state that the cardholder is permitted to cultivate marijuana plants,I61 the
Department must give written notice to the registered qualifying patient ... of the
names and addresses of all the registered medical marijuana dispensaries." Prop.
I.C. § 39-9607(4). The Department may deny an application or renewal request
for a registry identification card for failing to meet the requirements of the Act, and
must provide written notice of its reasons for doing so. Prop. I.C. § 39-9610.
Registry identification cards expire after one (1) year, and may be renewed for a
fee. Prop. I.C. § 39-9611. A registry identification card must contain the
cardholder's identifying information, and clearly indicate "whether the cardholder

4 Although patients and caregivers must be given registry identification cards, there is no
similar provision for identifying "agents" as authorized participants in the Act.
5 The Act also allows a "nonresident cardholder" from another state to possess medical
marijuana while in Idaho. Prop. I.C. § 39-9602(13).
6 The "cultivator" notation refers to the Act's "hardship cultivation designation." See Prop.
1.C. § 39-9609.

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July 22, 2019
Page 7

is permitted to cultivate marijuana plants for the qualifying patient's medical use"
(i.e., whether the patient has a "hardship cultivation designation"). Prop. I.C. § 399608.
The Department is required to "establish and maintain a verification system
for use by law enforcement personnel to verify registry identification cards." Prop.
I.C. § 39-9612(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.
I.C. § 39-9618(1) to (3). If the patient changes the caregiver, the Department must
notify the former caregiver that "his/her duties and rights ... for the qualifying
patient expire fifteen (15) days after the Department sends notification." Prop. I.C.
§ 39-9618(5).
Cities and counties "may enact reasonable zoning ordinances and
regulations not in conflict with the chapter ... governing the time, place and
manner of medical marijuana organization operations." Prop. I.C. § 39-9614(1).
However, a medical marijuana dispensary cannot be located within one thousand
(1,000) feet of a public or private school, and its renewal cannot be denied "if a
school opens or moves within" that distance of the dispensary. Prop. I.C. § 399614(2).
Prop. I.C. § 39-9615 states that before dispensing marijuana to a patient or
caregiver, a "medical marijuana dispensary agent must not believe that the amount
dispensed would cause the card holder to possess more than the allowable amount
of marijuana." (Emphasis added.) The italicized portion of the provision is subject
to a constitutional challenge based on vagueness.
The Act adopts a tax of four percent (4%) on medical marijuana sales. Prop.
I.C. § 39-9617(1). After disbursing tax revenue to the Department "to cover
reasonable costs incurred ... in carrying out this chapter[,]" the remaining amount
of revenue is to be equally distributed with fifty percent (50%) to the Idaho Division
of Veterans Services (in additional to any funds regularly dispersed to it) and the
other fifty percent (50%) to the General Fund. Prop. I.C. § 39-9617(2).
The Department must submit an annual public report to the legislature with
information set out in Prop. I.C. § 39-9619. 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

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July 22, 2019
Page 8

numbers and not by name or other identifying information. Prop. I.C. § 39-9620(1)
to (2).
Information and records kept by the Department are confidential, and may
only be disclosed as authorized by the Act. Prop. I.C. § 39-9620(1). Department
employees may notify state or local law enforcement about falsified or fraudulent
information submitted to the Department, and "about apparent criminal violations"
of the Act. Prop. I.C. § 39-9620(4)(a) and (b). Department employees may "notify
the board of medical examiners if they have reason to believe that a practitioner
provided a written recommendation without completing a full assessment of the
qualifying patient's medical history and current medical condition, or if the
Department has reason to believe the practitioner violated the standard of care, or
for other suspected violations of this chapter." Prop. I.C. § 39-9620(4)(c).
The heart of the Act is Prop. I.C. § 39-9621 - "Protections for the Medical
Use of Marijuana." Subsection (1) sets the pattern by stating, "a card holder who
possesses a valid registry identification card is 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[.]7
Subsections (1)(b) (nonresident cardholders), (3)
(practitioners), (6) (medical marijuana dispensaries and their agents), (7) (medical
marijuana production facilities and their agents), and (8) (safety compliance
facilities and their agents), are given the same criminal, civil, and administrative
protections in regard to their various functions under the Act.
Prop. I.C. § 39-9621 (2) creates a rebuttable presumption in criminal, civil,
and administrative court proceedings that cardholders are deemed to be "engaged
in the medical use of marijuana pursuant to this chapter if the person is in
possession of a registry identification card and an amount of marijuana that does
not exceed the allowable amount." The presumption may be rebutted with
evidence that the conduct "was not for the purpose of treating or alleviating the
qualifying patient's debilitating medical condition or symptoms associated with the
qualifying patient's debilitating medical condition pursuant to this chapter." Id.

7
The proposed statute specifically protects cardholders for (a) the medical use of
marijuana pursuant to the Act, (b) payment by patients and caregivers for goods or services for the
patient's medical use of marijuana, (c) transferring marijuana to a safety compliance facility for
testing, (d) compensating a medical marijuana dispensary or safety compliance facility for goods
or services, (e) offering or providing marijuana to a cardholder for a patient's medical use, or to a
medical marijuana dispensary if nothing of value is transferred in return. Prop. I.C. § 39-9621(1)(a)
to (e).

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July 22, 2019
Page 9

Practitioners are protected from sanctions for conduct "based solely on
providing written recommendations or for otherwise stating that, in the
practitioner's professional opinion, a patient is likely to receive therapeutic or
palliative benefit from the medical use of marijuana, ... but nothing ... prevents
a professional licensing board from sanctioning a practitioner for failing to properly
evaluate a patient's medical condition or otherwise violating the standard of care
for evaluating medical conditions." Prop. I.C. § 39-9621 (3).
Under Prop. I.C. § 39-9621 (5)(a) to (c), no person is subject to arrest,
prosecution, other penalty, or denial of right or privilege, for providing or selling
marijuana paraphernalia to a cardholder, nonresident cardholder, or medical
marijuana organization, or for being in the presence or vicinity of, or assisting in,
the authorized medical use of marijuana.
Prop. I.C. § 39-9621 (9) reads:
(9) Property, including all interests in the property, otherwise subject
to forfeiture under state or local law that is possessed, owned, or
used in any activity permitted under this chapter is not subject to
seizure or forfeiture. This subsection does not prevent civil forfeiture
if the basis for the forfeiture is unrelated to the medical use of
marijuana.
(Emphases added.) Prop. I.C. § 39-9621 (9) may be an attempt to state that no
property is subject to seizure or forfeiture on the basis of it being used as
authorized by this Act. However, the proposed statute could be construed as
preventing the seizure or forfeiture of property in regard to criminal activity under
all circumstances. Additionally, whether a civil forfeiture is "unrelated" to the
medical use of marijuana is potentially subject to a constitutional challenge due to
vagueness.
The mere possession of, or application for, a registry identification card
"may not constitute probable cause or reasonable suspicion, nor may it be used to
support the search of the person or property of the person possessing or applying
for the registry identification card." Prop. I.C. § 39-9621(10).
Under the heading, "Discrimination Prohibited," Prop. I.C. § 39-9622 makes
it illegal for schools, landlords, nursing facilities, intermediate care facilities,
hospice houses, hospitals, etc., to penalize a person "for engaging in conduct
allowed under this chapter, unless doing so would violate federal law or regulations
or cause" the entity "to lose a monetary or licensing-related benefit under federal

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July 22, 2019
Page 10

law." 8 Prop. I.C. § 39-9622(1 ). Subsection (2) gives patients the same rights (and
privileges, etc.) as persons prescribed medications with regard to interactions with
employers, drug testing by an employer, and drug testing required by state or other
governmental authorities. Subsection (4) states that no employer is required to
allow the ingestion of marijuana in any workplace (etc.), and repeats that a patient
"shall not be considered to be under the influence of marijuana solely because of
the presence of metabolites or components of cannabis that appear in insufficient
concentration to cause impairment." See Prop. I.C. § 39-9603(4). Subsections (5)
through (7) preclude discrimination in regard to organ and tissue transplants, child
custody and visitation rights, and firearm possession or ownership. Subsection (8)
states, "[n]o school, landlord, or employer may be penalized or denied any benefit
under state law for enrolling, leasing to, or employing a cardholder."
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 so long
as the evidence shows" that (essentially), the requirements of the Act were
complied with. Prop. I.C. § 39-9623(1).
The Act allows the Department, "after investigation and opportunity at a
hearing at which the medical marijuana organization has an opportunity to be
heard," to fine, suspend, or revoke a registration certificate for violations of the Act.
Prop. I.C. § 39-9624(1 ). Also, "[t]he Department may revoke the registry
identification card of any cardholder who knowingly violates this chapter." Prop.
I.C. § 39-9624(2). Revocation is subject to review under title 67, chapter 52, Idaho
Code.
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. I.C. § 39-9625.
In sum, Section 1 of the Act generally decriminalizes under state law the
possession of up to four (4) ounces of marijuana and (if given a "hardship
cultivator" designation) six (6) marijuana plants for patients or caregivers. The Act
also protects agents of medical marijuana production facilities, medical marijuana
dispensaries, and safety compliance facilities from civil forfeitures and penalties
8 The Act "does not prevent the imposition of any civil, criminal, or other penalties" for
possessing or engaging in the medical use of marijuana on a school bus, on the "grounds of any
licensed daycare, preschool, primary or secondary school," in a correctional facility, or smoking
marijuana on any public transportation or in any public place. Prop. I. C. § 39-9603( 1) to (3).

Secretary of State Denney
July 22, 2019
Page 11

under state law, and makes it illegal under state law to discriminate against all such
participants in regard to education, housing, and employment. Patients receiving
a written recommendation by a practitioner stating that they have a debilitating
medical condition may obtain marijuana for medicinal use from their (or their
caregiver's) cultivation of marijuana or a medical marijuana dispensary. Patients,
and caregivers must obtain registration identification cards, and medical marijuana
organizations must obtain registration certificates from the Department, and
continuously update relevant information. The Department is tasked with an
extensive list of duties, including, inter a/ia: 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,
record keeping, oversight, maintaining and enforcing confidentiality of records, and
providing an annual report to the Idaho Legislature.
As noted at the beginning of this review, Section 2 states that any measures
"concerning the legalization, control, regulation, or taxation of marijuana for
medical use that are on the same ballot "shall be deemed to be in conflict with this
measure," and that this measure prevails over other measures if it "receives a
greater number of affirmative votes[.]"
Section 3, "Severability," provides that if any provision of the Act is declared
invalid, the remaining portions of the Act remain valid.

B.

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

Idaho is free to enforce its own laws, just as the federal government is free
to do the same. The United States Supreme Court has explained:
In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate v.
United States, 359 U.S. 187 [1959], ... this Court reaffirmed the wellestablished principle that a federal prosecution does not bar a
subsequent state prosecution of the same person for the same acts,
and a state prosecution does not bar a federal one. The basis for
this doctrine is that prosecutions under the laws of separate
sovereigns do not, in the language of the Fifth Amendment, "subject
[the defendant] for the same offence to be twice put in jeopardy":

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July 22, 2019
Page 12

"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, 98 S. Ct. 1079, 1082, 55 L. Ed. 2d
303 (1978) (superseded by statute) (quoting Moore v. People of State of Illinois,
55 U.S. 13, 19-20, - S. Ct.-, 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' Coop., 532 U.S. 483, 486,
121 S. Ct. 1711, 1715, 149 L. Ed. 2d 722 (2001), the United States Supreme Court
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.

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July 22, 2019
Page 13

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 injunction, to
set forth those criteria in the modification order." Id., at 1115.
Id. at 493-95.

The Oakland Cannabis Buyer's 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

Secretary of State Denney
July 22, 2019
Page 14

Oakland Cannabis Buyer's 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 th Cir. 2008), contrary to the plaintiff's contention that,
because he was authorized under state law to use marijuana for medical purposes,
he was illegally denied housing, the Ninth Circuit explained:
The district court properly rejected the Plaintiffs' attempt to
assert the medical necessity defense. See Raich v. Gonzales, 500
F.3d 850, 861 (9 th Cir.2007) (stating that the defense may be
considered only when the medical marijuana user has been charged
and faces criminal prosecution). The Fair Housing Act, Americans
with Disabilities Act, and Rehabilitation Act all expressly exclude
illegal drug use, and AHA did not have a duty to reasonably
accommodate Assenberg's medical marijuana use. See 42 U.S.C.
§§ 3602(h), 12210(a); 29 U.S.C. § 705(20)(C)(i).
AHA did not violate the Department of Housing and Urban
Development's ("HUD") policy by automatically terminating the
Plaintiffs' lease based on Assenberg's drug use without considering
factors HUD listed in its September 24, 1999 memo .....
Because the Plaintiffs' eviction is substantiated by
Assenberg's illegal drug use, we need not address his claim ...
whether AHA offered a reasonable accommodation.
The district court properly dismissed Assenberg's state law
claims. Washington law requires only "reasonable" accommodation.
[Citation omitted.] Requiring public housing authorities to violate
federal law would not be reasonable.
Similarly, the Oregon Supreme Court has 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 & Industries, 230 P.3d 518, 520 (Or. 2010). Therefore, the
provisions of the initiative, Prop. I.C. §§ 39-9601, et seq., cannot interfere or
otherwise have an effect on federal laws, criminal or civil, which rely, in whole or
in part, on marijuana being illegal under the federal Controlled Substances Act.

Secretary of State Denney
July 22, 2019
Page 15

C.

Recommended Revisions or Alterations

In addition to the legal and non-legal problems previously discussed, the
initiative has several other aspects that merit consideration, described as follows:
1.
All references to title 39, chapter 96, Idaho Code, need to be
changed because chapter 96 was assigned in the 2019 legislative session to
"Maternal Mortality Review."
2.
Prop. I.C. § 39-9602(11) should have a comma inserted between
"stores" and "delivers."
3.
"Usable marijuana" is referred to only three times in the Act, with
each reference occurring in the provision for "Protections for the Medical Use of
Marijuana" relating to safety compliance facilities and their agents, and it is not
defined in the Act. See Prop. I.C. § 39-9621 (8)(a), (b), and (e). It is suggested
that, for clarity, either "usable marijuana" be defined or the word "usable" be
omitted.
4.
Prop. I.C. § 39-9605(1)(c)(iv) should refer to "Chapter 5, Title 65,
Idaho Code" instead of "Section 65-502."
5.
The introductory sentence of Prop. I.C. § 39-9605(1)(e) should end
with a full colon.
6.
Prop. I.C. § 39-9610(1)(e) has two miss-typed words: (1) "caregiver
'is' younger than twenty-one (21) years of age and 'is' not .... "
7.
Prop. I.C. § 39-9620(1)(c) omits the word "of" between "information"
and "persons."
8.
Prop. I.C. § 39-9621(1)(a) should read in part, "if the cardholder 'is'
allowed to .... " It is also suggested that the sentence end with "or are being
transported 'in accordance with this Act;"'
9.
Prop. I.C. § 39-9622(1) ("Discrimination Prohibited") should add I.C.
§ 39-9603 in the "Except as provided in 39-9604" introductory phrase because
Prop. I.C. § 39-9603 includes limitations on medical marijuana use in schools.

Secretary of State Denney
July 22, 2019
Page 16

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 the Petitioner via a copy of this Certificate of
Review, deposited in the U.S. Mail to John Belville, 1606 N. Irene Drive, Nampa,
Idaho 83687.
Sincerely,

LAWRENCE G. WASDEN
Attorney General
Analysis by:

John C. McKinney
Deputy Attorney General