Did the Idaho AG flag legal problems with the April 2019 medical marijuana plus hemp legalization initiative (proposed Chapter 92 of title 39, Idaho Code)?

Subject

The Idaho AG's advisory Certificate of Review under Idaho Code § 34-1809 of a citizen initiative (filed March 28, 2019 by petitioner John Belville) that proposed an "Idaho Medical Marijuana Act" as new chapter 92 of title 39, Idaho Code, plus a separate "Idaho Hemp Regulation Provision" combining hemp legalization with the medical marijuana scheme. After AG Wasden flagged a single-subject problem and other defects, the petitioner refiled a slimmer medical-marijuana-only version in June 2019 (covered by a separate certificate dated July 22, 2019).

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Notably, the Idaho legislature passed its own hemp legislation in 2021 (S.B. 1119) after several years of being one of the last states without explicit hemp authorization, so the legalization context has changed. As of late 2025, Idaho still has not legalized medical marijuana. 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 was the first of two related medical marijuana certificates issued in 2019. The April 2019 version tried to do two things at once: legalize medical marijuana under a comprehensive registration scheme, AND legalize and regulate industrial hemp. AG Wasden's review flagged this combination as the central legal problem.

The single-subject problem. Idaho's Constitution at art. XX, § 2 says: "If two (2) or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately." The Idaho Supreme Court in Idaho Watersheds Project v. State Bd. of Land Comm'rs, 133 Idaho 55 (1999), invalidated an initiative that mixed (i) the establishment of a fund for school land sale proceeds with (ii) a requirement that those sales be at public auction, holding the two subjects "incongruous and essentially unrelated." AG Wasden applied that test to the medical marijuana plus hemp initiative and concluded the same logic likely invalidated the combined measure: hemp legalization (regulating an industrial agricultural commodity) and medical marijuana (creating a healthcare program with patient cards, dispensaries, taxes) "are incongruous and essentially unrelated." The recommendation: separate the two and submit them on different ballots.

Hemp's choice-of-law trap. Even setting aside the single-subject issue, the hemp section had a structural defect. Several provisions (rulemaking, non-interference, returning seized hemp) said the standards applied "under federal law, Idaho law or regulations, or the law of the state where the hemp originated." That last clause meant another state's permissive hemp law would effectively override Idaho's. AG Wasden flagged this as questionable policy and unclear law.

Federal preemption (the Section B analysis). The same point that recurs in every state-level medical marijuana review: Idaho can decriminalize state-side, but it cannot stop federal prosecutors. United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001), held the Controlled Substances Act has no medical-necessity defense. The Fair Housing Act, ADA, and Rehabilitation Act all expressly exclude illegal drug users, and federal courts have applied that to evict state-authorized medical marijuana cardholders from federally-assisted housing. Assenberg v. Anacortes Housing Authority, 268 Fed. Appx. 643 (9th Cir. 2008). The Oregon Supreme Court has held an employer is not required to accommodate state-authorized medical marijuana use. Emerald Steel Fabricators, 230 P.3d 518 (2010).

Many vague terms. A long list:

• The phrase "may not unduly be withheld from holding a state issued license by virtue of their being a medical marijuana license holder" (Prop. § 39-2223(17)) used "unduly" without a standard.
• "No city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment" (Prop. § 39-2223(18)) had the same problem and arguably stripped local zoning power.
• The provision saying patients "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'" appeared to limit law-enforcement officers' permissible signs of impairment to two specific symptoms, ignoring the broader DRE training. The AG cited State v. Johnson and State v. Morin for the array of legitimate impairment signs (dilated pupils, bloodshot eyes, body tremors, lack of convergence, tongue coating).
• A requirement that courts make "written findings of clear and convincing evidence" before admitting evidence of patient or caregiver conduct in child-welfare proceedings was held to conflict with the Idaho Rules of Evidence and the Idaho Supreme Court's rulemaking authority over evidence.
• A provision insulating attorneys from bar discipline for assisting clients in conduct "that is not subject to criminal penalties under state law" would have stripped the bar of authority over conflicts of interest, fund mishandling, case inaction, etc., as long as the underlying matter was not criminal.

Numbering conflict. Chapter 92 was already assigned to the Idaho Direct Primary Care Act, so renumbering would be required.

The recommendations were "advisory only." The petitioner came back with a revised, marijuana-only version in June 2019.

Common questions

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

No. After this April 2019 review, the petitioner withdrew and resubmitted a medical-marijuana-only version in June 2019. That second version also did not qualify for the ballot. As of late 2025, Idaho has not legalized medical marijuana.

Q: What is Idaho's "single-subject rule"?

Article XX, § 2 of the Idaho Constitution requires that "if two (2) or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately." It is the Idaho counterpart to similar single-subject provisions in many state constitutions. The point is to prevent logrolling: bundling an unpopular proposal with a popular one to drag the unpopular one across the finish line. The Idaho Supreme Court applies it functionally, asking whether the parts of the initiative are "incongruous and essentially unrelated" or whether they "depend upon one another."

Q: Why did the AG think medical marijuana and hemp were "incongruous and essentially unrelated"?

Hemp is an industrial agricultural commodity grown for fiber, seed, and cannabidiol products with very low THC content. Hemp regulation is about agriculture, commerce, and federal-state cooperation around a 2018 Farm Bill change in federal law. Medical marijuana, in contrast, is about creating a healthcare program (patients, debilitating medical conditions, written recommendations, dispensaries, taxes earmarked to Veterans Services and Education). Voters could rationally support one and oppose the other; they should be voted on separately.

Q: What did the hemp section's "law of the state where the hemp originated" clause do?

Several provisions of the hemp section conditioned legal protection (non-interference, return of seized hemp) on the conduct being legal "under federal law, Idaho law or regulations, OR the law of the state where the hemp originated." That last disjunctive meant that if hemp moved across state lines from a state with more permissive rules than Idaho's, the hemp would be protected in Idaho even if it would have been illegal under Idaho's own rules. The AG flagged this as a structural defect because it effectively imported other states' regulatory regimes into Idaho.

Q: What was the issue with the impairment-detection language?

A provision said patients "shall 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 'without noticeable actions of impairment including slurred speech and lethargic movements.'" Read literally, the qualifier "including slurred speech and lethargic movements" mandated that those two specific symptoms be present before someone could be considered impaired. The AG pointed out that drug recognition experts are trained to detect a much wider range of marijuana-impairment signs (dilated pupils, bloodshot eyes, body tremors, lack of convergence, green coating of the tongue, confusing speech patterns) and the language would have artificially constrained officers' permissible factual basis for impairment determinations.

Q: What is the "edicts of government" or "separate sovereigns" point?

Even after a state initiative legalizes medical marijuana, the federal Controlled Substances Act still classifies marijuana as a Schedule I drug. Under the separate sovereigns doctrine (United States v. Wheeler), federal prosecutors can still bring CSA charges against conduct that is state-legal. The Supreme Court has held there is no medical-necessity defense to federal charges (Oakland Cannabis Buyers' Coop.). And federal disability and housing law (FHA, ADA, Rehabilitation Act) all exclude current illegal drug use, with "current illegal drug use" defined under federal law. So an Idaho cardholder evicted from federal public housing cannot rely on a state cardholder defense (Assenberg v. Anacortes Housing Authority).

Q: Did the Idaho legislature ever legalize hemp?

Yes. In 2021, after years as the last state without hemp authorization, the Idaho legislature passed S.B. 1119 setting up an industrial hemp licensing scheme administered by the Idaho State Department of Agriculture, consistent with the 2018 federal Farm Bill. So the hemp-legalization piece of this 2019 initiative was eventually accomplished by the legislature, just not by initiative.

Background and statutory framework

Idaho Code § 34-1809 requires the AG 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.

Idaho Constitution art. XX, § 2 is the single-subject rule for constitutional amendments and, by judicial extension, for initiatives. Idaho Watersheds Project v. State Bd. of Land Comm'rs is the controlling Idaho Supreme Court case applying the rule.

The Controlled Substances Act, 21 U.S.C. §§ 801 et seq., classifies marijuana as a Schedule I controlled substance. Hemp was federally descheduled by the 2018 Farm Bill (Agriculture Improvement Act of 2018), creating a regulatory gap that states had to fill.

Idaho's drug schedules are at Idaho Code § 37-2705. Section 37-2705(d)(27) makes any substance containing "any quantity" of THC a Schedule I hallucinogen. The proposed initiative tried to fix the marijuana definition in § 37-2701(t) but did not reach this companion section, leaving hemp arguably still classified as Schedule I despite the redefinition.

Citations

Statutes and constitutional provisions:
- Idaho Constitution art. XX, § 2 (single-subject rule)
- Idaho Code § 34-1809 (Certificate of Review requirement)
- Proposed Idaho Code §§ 39-9201 et seq. (Idaho Medical Marijuana Act, chapter 92 version)
- Proposed Idaho Code §§ 22-1801 et seq. (Idaho Hemp Regulation Provision)
- Idaho Code § 37-2701(t) (definition of marijuana)
- Idaho Code § 37-2705(d)(27) (Schedule I THC classification)
- 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:
- Idaho Watersheds Project v. State Bd. of Land Comm'rs, 133 Idaho 55, 982 P.2d 358 (1999) (single-subject rule application)
- United States v. Wheeler, 435 U.S. 313 (1978) (separate sovereigns)
- State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987)
- 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)
- 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)
- State v. Johnson, 137 Idaho 656, 51 P.3d 1112 (Ct. App. 2002) (impairment indicators)
- State v. Morin, 158 Idaho 622, 349 P.3d 1213 (Ct. App. 2015) (impairment indicators)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2019/11/Certificate_04222019.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORN EY GENERAL
LAWRENCE G. WASDEN

April 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 Adding
Chapter 92 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 March 28, 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 83720-001 O
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210

Secretary of State Denney
April 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 § 39-9201, et seq. 1 Primarily, the initiative
seeks to amend title 39, Idaho Code, by adding a new chapter 92, 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 establish a comprehensive registration system for instituting and
maintaining the production and dispensing of marijuana for use by persons
diagnosed with a debilitating medical condition. Prop. I.C. § 39-9206. The Act
directs the Department to approve or deny applications for "registry identification
cards" presented by "qualifying patients," their "designated caregivers," and
"agents" of "medical marijuana organizations." Prop. I.C. §§ 39-9202(3), 399202(17), and 39-9208 to 39-9213. The Department is required to issue
"registration certificates" to qualifying "medical marijuana organizations," defined
as "medical marijuana production facilities," "medical marijuana dispensaries," 2
and "safety compliance facilities." Prop. I.C. §§ 39-9202(11), 39-9202(16), 399207, 39-9213, and 39-9215. The Act permits, without state civil or criminal
sanctions, marijuana to be produced by medical marijuana production facilities
throughout the state (and qualified patients and/or designated caregivers whose
registry identification cards allow them to "cultivate" marijuana), tested for potency
and contaminants at safety compliance facilities, and transported to medical
marijuana dispensaries for sale to qualifying patients and/or their designated
caregivers.
Section 1 of the Act insulates from arrest, prosecution, and property
forfeiture, "qualifying patients" diagnosed with having a "debilitating medical
condition" who use marijuana for medicinal purposes, as well as their "designated
caregivers." The Act establishes a complex regulatory system whereby "agents"
of medical marijuana organizations - medical marijuana production facilities,
medical marijuana dispensaries, and safety compliance facilities - are insulated
from civil forfeitures and penalties under state law. Discrimination against
1

References to "proposed" I.C. § 39-9201, et seq., will read, "Prop. I.C. § 39-9201," etc.

2 The Act limits the number of medical marijuana dispensaries to "5 per 20,000 permanent

residents in each county." Prop. I.C. §§ 39-9207(1) and 39-9216(2).

Secretary of State Denney
April 22, 2019
Page 3

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 measures. Section 2 excludes from arrest, fine,
or prosecution, any persons who possess marijuana paraphernalia who are
participants in the Act's medical marijuana program. Section 3, entitled "Hemp
Legalization," defines, legalizes, and regulates hemp consistent with federal law.
Section 4 excludes "hemp" from the definition of "marijuana" as a Schedule I
hallucinogenic controlled substance. Lastly, Section 5 is a "severability" provision
which declares that, if any provision of the Act is declared invalid, the remaining
portions of the Act remain valid.
Section 1 of the Act provides that: (1) qualifying patients ("patients") may
possess up to four (4) ounces of marijuana and, if a patient's registry identification
card states that the patient "is exempt from criminal penalties for cultivating
marijuana," the patient may also possess up to six (6) marijuana plants in an
enclosed locked facility, etc., and any marijuana produced from those plants; and
(2) designated caregivers ("caregivers") to assist up to three (3) patients' medical
use of marijuana, and to independently possess, for each patient assisted, the
same amounts of marijuana described above. Prop. I.C. §§ 39-9202(2), 399202(6), and 39-9202(15). Apart from indicating that patients and caregivers may
be designated as "exempt from criminal penalties for cultivating marijuana," there
is no provision for anyone else to cultivate marijuana apart from 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 (I.C. §§ 54-1800, 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 condition." Prop. I.C. §§ 39-9202(14), 39-9202(15), and 39-9202(22).
The recommendation must specify the patient's debilitating medical condition and
may only be signed (and dated) in the course of a "practitioner-patient relationship
after the practitioner has completed a full assessment of the qualifying patient's
medical history and current medical condition." Id. Minors are also entitled to be
issued registry identification cards as patients under certain criteria. Prop. I.C. §
39-9210(2).
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

Secretary of State Denney
April 22, 2019
Page 4

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, or "[a]ny
other medical condition or its treatment added by the Department pursuant to
section 39-9204." Prop. I.C. § 39-9202(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. § 39-9202(4).
"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." Prop. I.C. § 399202(1). A "felony offense" means a felony which is either a "violent crime" or a
violation of a state or federal controlled substance law; it does not include an
offense "for which the sentence, including any term of probation, incarceration, or
supervised release, was completed five or more years earlier." Prop. I.C. § 399202(8). Designated caregivers have the same "felony offense" restriction, are
required to be at least twenty-one (21) years old, and "agree to assist no more than
three (3) qualifying patients" at the same time. Prop. I.C. § 39-9202(6).
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 who will be
allowed to cultivate Marijuana plants for the qualifying patient's medical use if a
Medical Marijuana dispensary is not operating within five (5) miles of the qualifying
patient's home and the address where the Marijuana plants will be cultivated."
Prop. I.C. § 39-9209(1). 3 The Department is obligated to verify the information in
an application (or renewal request) for a registry identification card, and approve
or deny the application within ten (10) days after receiving it, and must issue a card
within five (5) more days thereafter. Prop. I.C. § 39-9210(1 ). If a registry
identification card "does not state that the cardholder is authorized to cultivate
Marijuana plants, the Department must give written notice to the registered
qualifying patient . . . of the names and addresses of all registered medical
Marijuana dispensaries." Prop. I.C. § 39-9210(3). The registry identification cards
must include a "random twenty (20) digit alphanumeric identification number that
is unique to the cardholder," and a "clear indication of whether the cardholder has
been authorized by this chapter to cultivate Marijuana plants for the qualifying
patient's medical use." Prop. I.C. § 39-9211 (1)(d), (g). The Department may deny
an application or renewal request for a registry identification card for failing to meet
3

The Act also allows "visiting qualifying patients" from other states to possess medical
marijuana while in Idaho. Prop. J.C.§ 39-9202(21).

Secretary of State Denney
April 22, 2019
Page 5

the requirements of the Act, and must provide written notice of its reasons for doing
so. Prop. I.C. § 39-9212. Registry identification cards expire after one (1) year,
and may be renewed for a fee. Prop. I.C. § 39-9213.
Medical marijuana organizations must have operating documents that
include procedures for the oversight of the organization and accurate
recordkeeping, and are required to implement security measures to deter theft of
marijuana and unauthorized entrance into areas containing marijuana. Prop. I.C.
§ 39-9215.
Medical marijuana production facilities must restrict marijuana
cultivation, harvesting, etc., within an enclosed, locked facility only accessible to
registered agents. Prop. I.C. § 39-9215(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. I.C. §
39-9215(4).
The Act adopts a tax of four percent (4%) on medical marijuana sales. Prop.
I.C. § 39-9218(1 ). "After retaining no more than five percent (5%) of the tax
revenue collected, the Idaho State Tax Commission shall disperse the remaining
fifty percent (50%) to the Idaho Division of Veterans Services and the other fifty
percent (50%) to the Idaho Department of Education[,]" which are "in addition to
any funds regularly dispersed" to those entities. Prop. I.C. § 39-9218(2).
The Department is required to "establish and maintain a verification system
for use by law enforcement personnel and registered medical Marijuana
organization agents to verify registry identification cards." Prop. I.C. § 39-9219(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. § 39-9220(1 ),
(4). 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. § 39-9220(6).
The Department must submit an annual public report to the legislature with
information set out in Prop. I.C. § 39-9221. The Department is required to keep
all records and information received pursuant to the Act confidential, and any
dispensing of information by medical marijuana organizations or the Department
must identify cardholders and such organizations by their registry identification
numbers and not by name or other identifying information. Prop. I.C. § 39-9222(1 ),
(2).

Secretary of State Denney
April 22, 2019
Page 6

Department employees may notify state or local law enforcement about
suspected fraud or criminal violations "if the employee who suspects the falsified
or fraudulent information was submitted has conferred with his supervisor and both
agree the circumstances warrant reporting." Prop. I.C. § 39-9222(6)(a). Similarly,
and somewhat redundantly, subsection (b) states that the Department may notify
law enforcement "about apparent criminal violations of this chapter if the employee
who suspects the offense has conferred with his supervisor and both agree the
circumstances warrant reporting." Prop. I.C. § 39-9222(6)(b). To the extent the
two "reporting" provisions disallow anyone, on their own, from reporting suspected
crimes to law enforcement authorities, they are most likely unenforceable
restrictions on the First Amendment's right to free speech. In contrast, Department
employees may, on their own, 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. § 39-9222(6)(c).
Prop. I.C. § 39-9223 is entitled "Presumption of Medical Use of Marijuana Protections - Civil Penalties." Prop. I.C. § 39-9223(1) creates a rebuttable
presumption in criminal, civil, and administrative court proceedings that patients
and caregivers are deemed to be lawfully engaged in the medical use of marijuana
if their conduct complies with the Act. 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." Id. The proposed
statute provides that qualifying patients, visiting qualifying patients, and designated
caregivers are not subject to arrest, prosecution, or penalty in any manner, or
denial of any right or privilege, including any civil penalty or disciplinary action by
a court or occupational or professional licensing board or bureau for conduct
authorized by the Act. Prop. I.C. § 39-9223(2), (3). Additionally, practitioners are
protected from sanctions for conduct "based solely on providing written
recommendations" (or for otherwise stating) 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. I.C. § 39-9223(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 [authorized] medical
use of Marijuana," or assisting a patient as authorized by the Act. Prop. I.C. § 399223(5). Although it may be reasonable to sell marijuana paraphernalia to a
medical marijuana dispensary for resale, the need to sell marijuana paraphernalia

Secretary of State Denney
April 22, 2019
Page 7

to either a medical marijuana production facility or a safety compliance facility is
unclear.
The Act makes medical marijuana organizations and their agents immune
from criminal and civil sanctions, and searches or inspections, if their conduct
complies with the Act. Prop. I.C. § 39-9223(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. I.C. § 39-9223(10). Prop. I.C. § 39-9223(11) states that
no school, landlord, or employer may be penalized or denied any benefit under
state law for enrolling, leasing to, or employing a cardholder, and no landlord may
be penalized or denied any benefit under state law for leasing to a registered
Medical Marijuana organization."4
Prop. I.C. § 39-9223(9) reads:
(9) Property, including all interests in the property, otherwise subject
to forfeiture under Title 37, Idaho Code that is possessed, owned, or
used in connection with the Medical use of Marijuana authorized
under this chapter or acts incidental to the Medical use of Marijuana
authorized 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.
The italicized words in the above Prop. I.C. § 39-9223(9) make the provision
subject to constitutional challenges due to their vagueness.
Prop. I.C. § 39-9223(12) (emphasis added) states that an attorney "may not
be subject to disciplinary action by the state bar association or other professional
licensing association for providing legal assistance to a person related to activity
that is not subject to criminal penalties under state law pursuant to this chapter."
This provision appears to insulate attorneys from disciplinary action unless their
representation relates to a client's activity that is subject to criminal penalties under
state law. That condition would make it impossible for the state bar association to
sanction an attorney for having a conflict of interest, mishandling of funds, case
inaction, failure to communicate, and other types of professional malpractice,
4 However, 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. § 39-9205.

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April 22, 2019
Page 8

where the client's matter "is not subject to criminal penalties." Why the criminal
aspect of a client's matter should determine whether the state bar can discipline
an attorney for sub-par or unethical representation is not clear.
Prop. I.C. § 39-2223(13) (emphasis added) protects patients and caregivers
from criminal penalty and parental rights sanctions due to medical marijuana use
unless the court makes written findings based on substantial evidence that such
use has resulted in the patient's (or caregiver's) "impairment that interferes with
the performance of parenting functions." This language may be read to require
that the harm to the child was caused by the patient's ongoing impairment from
marijuana use -- not from occasional marijuana use that does not impair the
general ability to parent. Additionally, the determination of when a criminal or
parental rights sanction is "due to" medical marijuana use is open to constitutional
challenge due to vagueness, as there would likely be many cases in which such
use is an indirect or contributing factor.
Subsection (14) of Prop. I.C. § 39-2223 precludes schools and landlords
from penalizing persons based on their status as a medical marijuana cardholder
(referred to as "license holder" in this section), unless doing so "would imminently
cause the school or landlord to lose a monetary or licensing related benefit under
federal law or regulations." Subsection (15) employs the same monetary-licensing
exception in precluding employers from discriminating against cardholders
("license holder"), and allows employers to take action against an employee if the
cardholder "uses or possesses marijuana" at work during work hours.
Prop. I.C. § 39-2223(17) (emphasis added) states, "No person holding a
medical marijuana license may unduly be withheld from holding a state issued
license by virtue of their being a medical marijuana license holder." The word
"unduly" is vague, and subject to constitutional challenge.
Prop. I.C. § 39-2223(18) reads, "No city or local municipality may unduly
change or restrict zoning laws to prevent the opening of a retail marijuana
establishment."
Again, the word "unduly" may make the provision
unconstitutionally vague. To the extent the provision limits the inherent ability of a
governmental entity to enact reasonable zoning regulations, it would likely be held
unconstitutional.
Prop. I.C. § 39-9205(4) states that the Medical Marijuana Act's provisions
do not authorize persons to operate, etc., any motor vehicle, aircraft, or motorboat
"while under the influence of marijuana[.]" The provision further states that
qualifying patients and visiting qualifying patients may not be considered to be

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April 22, 2019
Page 9

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." Id. The provision does not explain who,
or under what circumstances, a law enforcement officer, employer, or teacher, etc.,
would be precluded from "considering" whether a patient is under the influence of
marijuana. Additionally, the requirement that a patient cannot be deemed to be
under the influence of marijuana because of metabolites in their system "without
noticeable actions of impairment including slurred speech and lethargic
movements" appears to mandate the latter two (2) symptoms when metabolites
are present. (Emphasis added.) This overlooks several other physical symptoms
law enforcement officers, including drug recognition experts, are trained to detect
regarding marijuana use. 5 See State v. Johnson, 137 Idaho 656, 660, 51 P.3d
1112, 1116 (Ct. App. 2002) ("Johnson's failure of that test, together with other
factors-his dilated pupils, bloodshot eyes, body tremors, and excessive
nervousness-enhanced Wunsch's suspicion that Johnson may have been using
marijuana."); State v. Morin, 158 Idaho 622, 625, 349 P.3d 1213, 1216 (Ct. App.
2015) ("He opined that dilated pupils, confusing speech patterns, impairments to
balance and other psychomotor function, 'lack of convergence,' and a green
coating of the tongue were all diagnostic indications of marijuana intoxication
exhibited by Morin."). In short, Prop. I.C. § 37-9205(4) attempts to restrict how
persons in authority may detect whether patients are under the influence of
marijuana.
The Department is given the task of making extensive rules, pursuant to the
Idaho Administrative Procedure Act ("IDAPA") for implementing the Act's
measures, including rules for: the form and content of applications and renewals,
a system to "numerically score competing medical marijuana dispensary
applicants," the prevention of theft of marijuana and security at facilities, oversight,
recordkeeping, safety, dispensing of medical marijuana "by use of an automated
machine," and safe and accurate packaging and labeling of medical marijuana.
Prop. I.C. § 39-9206.
Notably, the provision requires that, in establishing
application and renewal fees for registry identification cards and registration
certificates, "[t]he total amount of all fees must generate revenues sufficient to
implement and administer this chapter, except fee revenue may be offset or
supplemented by private donations." Prop. I.C. § 39-9206(1)(g)(i). The same selffunding requirement is repeated in Prop. I.C. § 39-9206(1)(g)(iii). A "medical
marijuana fund" is established by Prop. I.C. § 39-9229. The fund consists of "fees

5

Instead of reading "including slurred speech and lethargic movements," a provision
stating "such as slurred speech" would not limit the symptoms a law enforcement officer could
consider in determining whether a person is affected by marijuana use.

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April 22, 2019
Page 10

collected, civil penalties imposed, and private donations," and is to be administered
by the Department.
·
Under the heading "Affirmative Defense," the Act provides that patients,
visiting patients, and caregivers "may assert the medical purpose for using
Marijuana as a defense to any prosecution of an offense involving Marijuana
intended for a qualifying patient's or visiting qualifying patient's medical use, and
this defense must be presumed valid if," several criteria are met. Prop. I.C. § 399224(1 ). If evidence shows that the listed criteria are met, the defense "must be
presumed valid." Id. Further, Prop. I.C. § 39-9224(2) allows a person to assert
the "medical use" affirmative defense "in a motion to dismiss, and the charges must
be dismissed following an evidentiary hearing if the person shows the elements
listed in subsection (1 )." Prop. I.C. § 39-9224 clearly creates a conclusive
presumption, which is not only disfavored in law, but is also inconsistent with the
way affirmative defenses operate - i.e., by requiring the defense to present prima
facie evidence at trial to support an affirmative defense before a jury instruction on
the affirmative defense is deemed warranted. Moreover, the provision gives
defendants the opportunity of having an affirmative defense be the basis not only
of acquittal at trial, but dismissal prior to trial. Finally, if the patient or caregiver
succeeds in demonstrating a medical purpose for the patient's use of marijuana,
there can be no disciplinary action by a court or occupational or professional
licensing board, etc. Prop. I.C. § 39-9224(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 or her status as a cardholder,
unless to do so would violate federal law or cause the entity to lose a monetary or
licensing benefit under federal law. Prop. I.C. § 39-9225(1 ). Subsection (5) of the
proposed statute further states:
(5) 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.

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April 22, 2019
Page 11

Prop. I.C. § 39-9225(5) (emphasis added). There are several problems with the
proposed provision. First, the "substantial evidence" and "clear and convincing"
standards are incompatible with each other, and run counter to the Idaho Rules of
Evidence and the authority of the Idaho Supreme Court in determining the criteria
for admitting evidence at trial. Next, the requirement that a court enter "written
findings of clear and convincing evidence" that "such neglect or child
endangerment is a direct outcome" creates a de facto presumption that, as
explained above, is inconsistent with the way affirmative defenses function at trial.
Lastly, requiring a court to essentially hear and decide the merits of a case prior to
trial by one of the highest standards of proof is virtually unprecedented.
The Act has measures for revoking registry identification cards and
registration certificates for violations of its provisions, including notice and
confidentiality requirements. Prop. I.C. §§ 39-9227 and 39-9228. Subsection (8)
of Prop. I.C. § 39-9228 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
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. Prop. I.C. § 39-9229(1) establishes a Medical Marijuana Fund, consisting
of "fees collected, civil penalties imposed, and private donations received[,]" which
are to be administered by the Department.
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. § 39-9230(1 ). 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. I.C.
§ 39-9230(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. I.C. § 39-9230(4).
In sum, Section 1 of the Act generally decriminalizes under state law the
possession of up to four (4) ounces of marijuana and (if authorized as a "cultivator")
six (6) marijuana plants for patients and caregivers. The Act also protects agents
of medical marijuana production facilities, medical marijuana dispensaries, and
safety compliance facilities from civil forfeitures and penalties under state law, and
makes it illegal under state law to discriminate against all such participants in

Secretary of State Denney
April 22, 2019
Page 12

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 (if authorized on the registry identification card), the
patient's caregiver or a medical marijuana dispensary. Patients, caregivers, and
agents of medical marijuana organizations must obtain registry identification cards,
and medical marijuana organizations must obtain registry certificates from the
Department, and continuously update relevant information. The Department is
tasked with an extensive list of duties, including, inter alia: formulating rules and
regulations to implement and maintain the Act's numerous and far-reaching
measures, verifying information and timely approving applications and renewal
requests submitted for registry identification cards and registration certificates,
establishing and maintaining a law enforcement verification system, providing
rules for security, recordkeeping, oversight, maintaining and enforcing
confidentiality of records, and providing an annual report to the Idaho Legislature.
Section 2 of the Act is very short. It adds Prop. I.C. § 37-2734A(4), which
states that "[a]ny person who provides proof of their qualification and participation
in the Idaho Medical Marijuana Program, or another State's medical Marijuana
program, is excluded from any arrest, fine, or prosecution for possessing Marijuana
paraphernalia, as is anyone that provides the qualified patient the paraphernalia,
and any seized paraphernalia must be returned." Taken literally, anyone in the
Medical Marijuana Program could sell marijuana paraphernalia to anyone, and be
protected from arrest, fine, and prosecution for possessing drug paraphernalia.
The "return" requirement of the provision does not state when paraphernalia must
be returned, leaving open the possibility that it could be kept until related court
proceedings (and appeal) are final.
Section 3 is entitled "Hemp Legalization" or the "Idaho Hemp Regulation
Provision." It is likely that the inclusion of its provisions within the Idaho Medical
Marijuana Act violates the single-subject rule set forth in art. XX, sec. 2 of the Idaho
Constitution, which states, "If two (2) or more amendments are proposed, they
shall be submitted in such manner that the electors shall vote for or against each
of them separately." In Idaho Watersheds Project v. State Bd. of Land Comm'rs,
133 Idaho 55, 60, 982 P.2d 358, 363 (1999), the Idaho Supreme Court invalidated
an initiative amending the Idaho Constitution that both established a fund in which
the proceeds from the sale of school lands must be deposited and also required
that the sale of school lands must take place at public auctions. The defendant
argued that the single-subject rule was satisfied simply because "[a]II of the
language [of the amendment] relates to the subject of the sale of land and the use
of the proceeds of the sale of land." Id. The Court rejected that argument, stating:

Secretary of State Denney
April 22, 2019
Page 13

[W]e find that the subject of how school endowment land proceeds
are invested differs essentially from the subject of whether auctions
should take place regarding only sales, as opposed to leases and
sales, of school endowment lands. We conclude that the proposed
amendments to the two sections of Article 9 do not in any way
depend upon one another. They are "incongruous and essentially
unrelated," and consequently should have been submitted
separately to the voters. [Citation omitted.] We therefore hold that
the amendments proposed by H.J.R. 6 violate Article 20, § 2 of the
Idaho Constitution.

Id. Here too, the Idaho Medical Marijuana Act and Idaho Hemp Regulation
Provision "are incongruous and essentially unrelated," and "do not in any way
depend upon one another." Id. Therefore, the initiative violates the single-subject
rule of art. XX, sec. 2 of the Idaho Constitution and should be limited to presenting
the Idaho Medical Marijuana Act. 6
Even if considered, there are several concerns with the Hemp Legalization
provisions. Prop. I.C. § 22-1802 defines hemp as Cannabis sativa L. with not more
than 0.3% of tetrahydrocannabinol ("THC") on a dry weight basis. The provisions
dealing with the promulgation of rules, non-interference by state and local agencies
in hemp-related activities (Prop. I.C. § 22-1803(1 )), protection from arrest,
prosecution, and imprisonment (Prop. I.C. § 22-180(2)), and the return of seized
hemp (Prop. I.C. § 22-1803(3)), all have the same flaw; they incorporate the "state
law where the hemp originated" as one of the alternate limitations on the authority
of Idaho state law. For example, Prop. I.C. § 22-1803(3) (emphasis added), states,
"Any hemp seized shall be returned if legally utilized under federal law, Idaho law
or regulations, or the law of the state where the hemp originated." That italicized
clause, repeated in the three above-cited provisions, effectively makes less
restrictive hemp laws of the originating state become the hemp laws of Idaho within
the context of each provision.
Section 4, "Hemp Exclusion," excludes hemp from the definition of
"marijuana" in I.C. § 37-2701 (t). However, it fails to exclude hemp from the statute
that makes any substance containing "any quantity" of THC an illegal Schedule I
hallucinogenic substance, I.C. § 37-2705(d)(27).

6 It should be noted that, as of this date, the Idaho House of Representatives has passed
a Hemp Bill, House Bill 122, which is pending consideration by the Idaho Senate.

Secretary of State Denney
April 22, 2019
Page 14

Section 5, "Severability," provides that "if any provision of this acts [sic] or
the application of such provision ... is declared invalid for any reason, such
declaration shall not affect the validity of the remaining portions of this act."
B.

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

Idaho is free to enforce its own laws, just as the federal government is free
to do the same. The United States Supreme Court has explained:
In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate v.
United States, 359 U.S. 187 [1959], ... this Court reaffirmed the wellestablished principle that a federal prosecution does not bar a
subsequent state prosecution of the same person for the same acts,
and a state prosecution does not bar a federal one. The basis for
this doctrine is that prosecutions under the laws of separate
sovereigns do not, in the language of the Fifth Amendment, "subject
[the defendant] for the same offence to be twice put in jeopardy":
An offence [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, 317, 98 S. Ct. 1079, 1082-93, 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.

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April 22, 2019
Page 15

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.
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 determined 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.

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April 22, 2019
Page 16

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
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).

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April 22, 2019
Page 17

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. §§ 39-9201, 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.

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 92, Idaho Code need to be changed
because chapter 92 is currently assigned to the Idaho Direct Primary Care Act.
Assuming no other currently pending legislation is reserved for chapter 96, it would
be the next available chapter in title 39 for new statutes. Additionally, Prop. I.C. §
39-9212 is mistakenly numbered 39-9112; subsection (1)(a) should refer to 399202(15) instead of 39-9203(14); subsection (2)(a) should cite 39-9202(6) instead
of 39-9203(6); and subsection (3)(a) should cite 39-9202(1) instead of 39-9203(1 ).
2.
The Act skips from Prop. I.C. § 39-9202 to Prop. I.C. § 39-9204.
Therefore, Prop. I.C. § 39-9204 needs to be changed to Prop. I.C. § 39-9203, and
each successive provision needs to be modified accordingly.
3.
Prop. I.C. § 39-9202(15) should add that it must be a "practitioner"
that diagnoses a minor as having a debilitating medical condition.

Secretary of State Denney
April 22, 2019
Page 18

4.
Prop. I.C. § 39-9207(3)(e) states that one of the conditions for a
medical marijuana dispensary to receive a registration certificate is:
It is located in a county with more than twenty thousand (20,000)
permanent residents and the county already contains the maximum
number of medical Marijuana dispensaries allowed for each 20,000
permanent residents.
(Emphasis added.) The above provision may read the opposite way intended, i.e.,
that "the county does not already contain the maximum number of medical
Marijuana dispensaries allowed for each 20,000 permanent residents."
5.
Prop. I.C. § 39-9218(1) should read in part "sold by a Medical
Marijuana organization." Subsection (2) should read in part "shall disperse fifty
percent (50%) of the remaining amount" ....
6.
Prop. I.C. § 39-9220(5) should change the two references to
"certifying practitioner" to "recommending practitioner."
7.
Prop. I.C. § 39-9221 (6) should omit the "and" at the end, and
subsection (7) should omit the period at the end and add"; and".
8.
Prop. I.C. § 39-9223(15) states that "an employer may not
discriminate against a person in hiring ... or otherwise penalize a person based
upon either. 1. The person's status as a medical marijuana license holder; or 2.
Employers may take action against a holder of a medical marijuana license holder
if .... " The second prohibition ("2.") does not fit the either/or set up of this antidiscrimination provision. Rather, it should be a stand-alone provision that, under
certain conditions, allows employers to sue employees who are medical marijuana
license holders.
9.
Under Prop. I.C. 39-9227(1 ), (2), (3), (6), (7) and (8), the references
to 39-9227 should be changed to 39-9228.
10.
39-9220.

Prop. I.C. § 39-9228(1)'s reference to 39-9219 should be changed to

11.

In Section 3, under 22-1803, subsection (3) should be subsection (2).

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April 22, 2019
Page 19

In Section 4, the subsection "(1 )" is unnecessary because there are
12.
no other subsections in that statutory provision.
CERTIFICATION

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,

Attorney General
Analysis by:

John C. McKinney
Deputy Attorney General