Did the Idaho AG identify any legal problems in the proposed Idaho Medical Marijuana Act initiative that would have legalized medical cannabis under state law through new Chapter 97 of Title 39?

Subject

The Idaho AG's Certificate of Review under Idaho Code § 34-1809 of a proposed initiative titled the "Idaho Medical Marijuana Act" (proposed Idaho Code § 39-9701 et seq.), which would have decriminalized possession, cultivation, and distribution of medical marijuana for qualifying patients in Idaho.

Plain-English summary

A petitioner (Jackee K. Winters) filed a proposed initiative with the Idaho Secretary of State on October 29, 2020. The Idaho AG was statutorily required under Idaho Code § 34-1809 to review and provide advisory comments. The AG explicitly noted his role was limited to legal-form review; he expressed no opinion on policy merits.

The proposed initiative would have:

1. Created a registration system administered by the Idaho Department of Health and Welfare, with "qualifying patients" and "designated caregivers" receiving registry identification cards permitting them to use, possess, and (with a "hardship cultivation designation") cultivate up to 6 marijuana plants for medical purposes.
2. Allowed possession of up to 4 ounces of marijuana for cardholders.
3. Established three types of "medical marijuana organizations" requiring state registration: dispensaries, production facilities, and safety compliance facilities.
4. Defined "debilitating medical conditions" to include cancer, glaucoma, HIV, AIDS, hepatitis C, ALS, Crohn's, Alzheimer's, PTSD, inflammatory bowel disease, Huntington's, Tourette syndrome, and any chronic disease causing severe pain, severe nausea, seizures, or muscle spasms, plus terminal illnesses with life expectancy under 12 months.
5. Imposed a 4% excise tax with revenue split 50/50 between the Idaho Division of Veterans Services and the General Fund.
6. Prohibited discrimination by schools, landlords, employers, and care facilities against cardholders, with several exceptions (federal-law conflicts, intoxication on the job, etc.).
7. Established a rebuttable presumption that cardholders with under-the-limit marijuana were engaged in authorized medical use.

The AG identified two specific vagueness concerns in the proposed text:
- Proposed § 39-9715 told dispensary agents not to sell marijuana if they "must not believe" the amount would put the cardholder over the allowable limit. The AG flagged this as constitutionally vague.
- Proposed § 39-9721(9) exempted marijuana-related property from forfeiture but kept forfeiture available "if the basis for the forfeiture is unrelated to the medical use of marijuana." The AG flagged "unrelated" as potentially vague.

The bulk of the AG's substantive analysis addressed the federal-state preemption question. The AG explained that:

• Federal criminal law would not be affected. Under the separate-sovereigns doctrine (United States v. Wheeler, 1978; Bartkus v. Illinois, 1959), Idaho can decriminalize marijuana under state law, but the federal government can still prosecute under the Controlled Substances Act. United States v. Oakland Cannabis Buyers' Cooperative (2001) directly held that medical necessity is not a defense to federal CSA charges, even where state law authorizes medical marijuana use.
• Federal housing rules would not be affected. Assenberg v. Anacortes Housing Authority (9th Cir. 2008) held that the Fair Housing Act, Americans with Disabilities Act, and Rehabilitation Act all expressly exclude illegal drug use. A public housing authority is not required to accommodate medical marijuana use.
• Federal employment-disability rules would not be affected. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus. (Or. 2010) held that an employer is not required to accommodate medical marijuana use under state employment discrimination laws when federal law conflicts.

The AG also suggested removing the word "usable" from the proposed ballot title because it didn't appear anywhere in the actual Act.

The AG certified the proposed initiative for circulation but, as is the AG's role under § 34-1809, only after flagging legal-form concerns. The petitioner remained free to accept or reject the AG's advisory comments.

The 2022 outcome: the initiative did not qualify for the Idaho ballot. Idaho still has no state-authorized medical marijuana program as of this writing.

What this means for you

Ballot initiative petitioners (Idaho)

The Certificate of Review process under § 34-1809 is the first formal hurdle for a state initiative. Three takeaways from this AG's work:

1. The AG flags vagueness concerns specifically. Vague terms ("must not believe," "unrelated to the medical use") are vulnerable to constitutional challenge after passage. Future Idaho initiatives drafting around medical marijuana or other regulated substances should tighten these phrases before filing.
2. The federal preemption analysis is comprehensive and applies to similar initiatives. Any state initiative on marijuana, controlled substances, or federally regulated activity will face the same federal-law overlay. Drafters cannot make federal law go away.
3. The AG's review is strictly form, not policy. Don't expect the AG to bless or oppose the substance. The Certificate of Review is a legal-form check.

Idaho voters who supported (or opposed) the initiative

The AG's Certificate of Review highlighted that Idaho voters cannot, by initiative, eliminate federal criminal liability for marijuana. Even if a future Idaho initiative succeeds:

• Federal prosecution remains available under the Controlled Substances Act.
• Federal housing and employment rules continue to allow termination based on marijuana use.
• The State of Idaho can decriminalize under state law, but federal law overlay remains.

This is the same constitutional architecture that applies in California, Oregon, Colorado, and other states with state-authorized medical or recreational marijuana programs.

Medical marijuana advocates considering Idaho-specific strategy

Two practical points:

1. Federal rescheduling, not state initiatives, is the primary lever. As long as marijuana is on Schedule I of the federal CSA, state-law decriminalization leaves federal exposure intact. Federal rescheduling discussions began in 2024 (DOJ proposed Schedule III); track that process for Idaho strategy.
2. Address Idaho's specific hurdles. Beyond federal preemption, Idaho's initiative process requires significant signature gathering across multiple legislative districts. Drafters must also satisfy the AG's vagueness concerns to make the initiative legally durable if passed.

Idaho law enforcement

Even if a future medical marijuana initiative passes in Idaho, federal cooperation arrangements (joint task forces, federal grant conditions, etc.) may still treat marijuana as illegal under federal law. The 9th Circuit's reasoning in Assenberg and Raich v. Gonzales shows federal law overlays matter even when state law has changed.

Employers and landlords in Idaho

The current Idaho AG opinion confirms that even if a medical marijuana program were enacted in Idaho, federal employment and housing law would not require accommodation. Idaho employers can continue drug testing for marijuana under federal-law-aligned policies. Landlords participating in federally subsidized housing programs (HUD-funded) similarly retain authority to enforce drug-use lease provisions.

Common questions

Q: What is a Certificate of Review?

Idaho Code § 34-1809 requires the AG to review proposed initiative petitions for "form, style, and matters of substantive import." The review is advisory only; petitioners are free to accept or reject the AG's recommendations. The Certificate is a procedural step in the Idaho initiative process; it does not certify the initiative for ballot inclusion (which depends on signature collection).

Q: Did this initiative make it to the Idaho ballot?

No. The 2022 medical marijuana effort did not collect enough signatures to qualify. Subsequent proposals have similarly failed to qualify. Idaho remains one of the few states without a state-authorized medical marijuana program.

Q: What's the "separate sovereigns" doctrine?

A constitutional doctrine holding that state and federal governments are separate sovereigns who can each prosecute the same conduct without violating the Fifth Amendment double jeopardy clause. United States v. Wheeler (1978); Bartkus v. Illinois (1959). Idaho can decriminalize state-law marijuana offenses without affecting federal authority to prosecute.

Q: Why doesn't a state medical marijuana law preempt federal drug law?

The Supremacy Clause makes federal law superior, not state law. State legalization doesn't repeal federal law; it just changes state law. Oakland Cannabis Buyers' Cooperative (2001) confirmed that medical necessity is not a defense to federal CSA charges even where state law authorizes medical use.

Q: What's the "hardship cultivation designation"?

A category in the proposed initiative for patients whose access to dispensaries was limited (proximity, financial hardship, physical incapacity). Patients with this designation could cultivate up to 6 marijuana plants in an enclosed locked facility.

Q: What about federal rescheduling?

Federal rescheduling of marijuana from Schedule I to Schedule III was proposed by the DOJ in 2024. If finalized, that would change the legal landscape significantly: medical use would be permitted under federal law (with FDA approval), and state programs would have less federal-state friction. As of this writing in 2026, the rescheduling process status should be checked separately.

Background and statutory framework

Idaho's initiative process. Idaho Code § 34-1809 requires the Idaho AG to review proposed initiatives for "form, style, and matters of substantive import" and issue a Certificate of Review. The AG's recommendations are advisory only. The petitioner may accept or reject them. After the Certificate, the AG prepares short and long ballot titles. The petitioner then must collect signatures from a specified percentage of registered voters in each of a specified number of legislative districts.

The proposed Idaho Medical Marijuana Act. Self-titled "Idaho Medical Marijuana Act," denominated as proposed Idaho Code § 39-9701 et seq. The Act would have created a comprehensive regulatory regime patterned loosely on other states' medical marijuana programs (California, Oregon, Colorado, etc.). Key components: registration system, qualifying patients/caregivers, three types of medical marijuana organizations (dispensaries, production facilities, safety compliance facilities), 4% excise tax, anti-discrimination provisions, immunity from state criminal and civil sanctions for authorized participants.

Federal-state preemption analysis. The AG's preemption discussion follows established Supreme Court doctrine: states cannot displace federal law (Supremacy Clause), but the separate-sovereigns doctrine allows parallel state and federal regulation. Marijuana remains a Schedule I controlled substance under 21 U.S.C. § 812. The Controlled Substances Act, 21 U.S.C. § 801 et seq., provides for federal prosecution regardless of state law. Oakland Cannabis Buyers' Cooperative (2001) settled that medical necessity is not a defense in federal court.

Federal housing and employment overlay. The Fair Housing Act (42 U.S.C. § 3602(h)), Americans with Disabilities Act (42 U.S.C. § 12210(a)), and Rehabilitation Act (29 U.S.C. § 705(20)(C)(i)) all expressly exclude current illegal drug use from disability-protected status. Assenberg v. Anacortes Housing Authority (9th Cir. 2008); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus. (Or. 2010) (employer not required to accommodate medical marijuana use).

Citations

• Idaho Code § 34-1809 (Certificate of Review process)
• Idaho Code § 54-1801 et seq. (Idaho Medical Practice Act)
• Idaho Code Title 67, Chapter 52 (administrative review)
• Proposed Idaho Code § 39-9701 et seq. (would-be Idaho Medical Marijuana Act)
• 21 U.S.C. § 801 et seq. (federal Controlled Substances Act)
• 21 U.S.C. § 812 (Schedule I designation)
• 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act drug exclusion)
• 42 U.S.C. § 3602(h) (Fair Housing Act drug exclusion)
• 42 U.S.C. § 12210(a) (ADA drug exclusion)
• Cal. Health & Safety Code § 11362.5 (California Compassionate Use Act, comparison)
• United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) (medical necessity not a defense)
• United States v. Wheeler, 435 U.S. 313 (1978) (separate sovereigns)
• Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959)
• State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987) (Idaho double jeopardy)
• Assenberg v. Anacortes Housing Authority, 268 Fed. App'x 643 (9th Cir. 2008)
• Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007)
• Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2021/05/Certificate_11172020.pdf

Original opinion text

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

November 17, 2020

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 97 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 October 29, 2020.
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 21O

Secretary of State Denney
November 17, 2020
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 § 39-9701, et seq. 1 Primarily, the initiative
seeks to amend title 39, Idaho Code, by adding a new chapter 97, 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 and 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. § 39-9705. 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. §§ 39-9702(6), (15); -9707
to -9711. 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. §§ 39-9702(10), (16); -9705 to -9706, -9711, -9713. 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
1 References to "proposed" Idaho Code § 39-9701, et seq., will read, "Prop. I.C. § 399701," etc.
2 A "designated caregiver" can be a natural person at least 21 years of age or "an entity
licensed in Idaho to provide healthcare services that agrees to assist with qualifying patients'
medical use of marijuana[.]" Prop. I.C. § 39-9702(6).

Secretary of State Denney
November 17, 2020
Page 3

required to formulate rules and regulations to implement and maintain the Act's
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. § 39-9702 are also substantive
requirements under the Act. In short, they provide that: (1) patients may possess
up to four 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 marijuana plants in an enclosed locked facility, and any
marijuana produced from the plants grown at the premises or at the patient's
residence 3 ; and (2) caregivers may assist with up to three patients' medical use of
marijuana, and possess, for each patient assisted, the same amounts of marijuana
described above. Prop. I.C. § 39-9702(2), (6), (15). Apart from indicating that
patients and caregivers are "not subject to arrest, prosecution or penalty in any
manner, [etc.]," Prop. I.C. § 39-9721 (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 (Idaho Code §§ 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. § 39-9702(14), (15), (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
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. §§ 39-9702(2)(a)(ii), (b)(ii);
9702(6), (15); -9709. Although the "hardship cultivation designation" requires the six 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. §§ 399702(2)(a)(ii), (b)(ii).

Secretary of State Denney
November 17, 2020
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relationship after the practitioner has completed a full assessment of the patient's
medical history and current medical condition[.]" Prop. I.C. § 39-9702(19). Minors
are also entitled to be issued registry identification cards as patients under certain
criteria. Prop. I.C. § 39-9707(3).
A "debilitating medical condition" means not only the conditions listed
(cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, A.LS, Crohn's
disease, Alzheimer's disease, post-traumatic stress disorder, inflammatory bowel
disease, Huntington's disease, and Tourette syndrome), 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," "[a]ny 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 39-9716." Prop. I.C. § 39-9702(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. § 39-9702(4).
Prop. I.C. § 39-9716.
"Agents" are defined as principal officers, board members, employees, or
volunteers of a medical marijuana organization who are at least 21 years old and
who "meet the qualifications set forth in this act." Prop. I.C. § 39-9702(1 ). Agents
of medical marijuana organizations-marijuana dispensaries, marijuana
production facilities, and safety compliance facilities-are exempt from
"prosecution, search, or inspection, except by the Department pursuant to 399713(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. § 39-9721 (6)(8).
Prop. I.C. § 39-9703, titled "Limitations," states that the Act's provisions do
not "prevent the imposition of any civil, criminal, or other penalties" for:
(1) Undertaking any task under the influence of marijuana that
would constitute negligence or professional malpractice[;]
(2) Possessing or engaging in the medical use of marijuana:
(a) On a school bus; or
(b) In any correctional facility[;]
(3) Smoking marijuana:
(a) On any form of public transportation;

Secretary of State Denney
November 17, 2020
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(b) On the grounds of any licensed daycare, preschool, primary
or secondary school; or
(c) In any public place[;] or
(4) Operating, [etc.,] any motor vehicle, aircraft, train, motorboat, or
other motorized form of transport while under the influence of
marijuana ....
Under Prop. I.C. § 39-9703(4), 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. § 39-9703(5) states that the Act does not "prevent the imposition
of any civil, criminal or other penalties" for persons engaging in "[s]olvent-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. § 39-9704(1), titled "Facility Restrictions," allows "[a]ny 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.
§ 39-9704(1)(a), (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. § 39-9704(1)(c), (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, facility security, oversight,
recordkeeping, safety, and safe and accurate packaging and labeling of medical
marijuana.
Prop. I.C. § 39-9705. 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

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November 17, 2020
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sufficient to implement and administer this Chapter, except fee revenue may be
offset or supplemented by private donations." Prop. I.C. § 39-9705(1)(k)(i).
Upon satisfactory application by a medical marijuana organization, the
Department must approve a registration certificate within 90 days. Prop. I.C. § 399706. 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 the facility's
agents. 4 Prop. I.C. § 39-9713(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. § 39-9713(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 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. § 39-9707(1). 5 This provision suggests that, if
a patient has such a designation, either the patient or the caregiver may cultivate
six marijuana plants and retain the marijuana from those plants-not both (which
would allow a total of 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 20 days after receiving it, and
must issue a card within ten more days thereafter. Prop. I.C. § 39-9707(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,[61 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. § 39-9707(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. § 39-9710. Registry identification cards expire after one year, and
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. § 39-9702(13).
6 The "cultivator" notation refers to the Act's "hardship cultivation designation." See Prop.
I.C. § 39-9709.

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November 17, 2020
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may be renewed for a $25 fee. Prop. I.C. § 39-9711. A registry identification card
must contain the cardholder's identifying information, and clearly indicate "whether
the cardholder 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. § 39-9708.
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. § 39-9712(1 ). Patients are required to notify the Department within ten days
of any change in name, address, designated caregiver, and their preference
regarding who may cultivate marijuana for them, and, upon receipt of such notice,
the Department has ten days to issue a new registry identification card. Prop. I.C.
§ 39-9718(1 )-(3). If the patient changes their caregiver, the Department must
notify the former caregiver that his/her "duties and rights under this Chapter for the
qualifying patient expire fifteen (15) days after the Department sends notification."
Prop. I.C. § 39-9718(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. § 39-9714(1).
A medical marijuana dispensary cannot be located within 1,000 feet of a public or
private school, but its renewal cannot be denied "if a school opens or moves within"
that distance of the dispensary after it is licensed. Prop. I.C .. § 39-9714(2).
Prop. I.C. § 39-9715 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 an excise tax of 4% "upon the gross receipts of all marijuana
sold by a medical marijuana dispensary to a qualifying patient or a designated
caregiver." Prop. I.C. § 39-9717(1 ). After disbursing tax revenue "to the
Department to cover reasonable costs incurred by the Department in carrying out
its duties" under the Act, the remaining amount of tax revenue is to be equally
distributed with 50% to the Idaho Division of Veterans Services (in additional to
any funds regularly dispersed to it) and the other 50% to the General Fund. Prop.
I.C. § 39-9717(2).
The Department must submit an annual public report to the legislature with
information set out in Prop. I.C. § 39-9719. The Department is required to keep all

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November 17, 2020
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records and information received pursuant to the Act confidential, and any
disclosing 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. § 39-9720(1 )(2).
Information and records kept by the Department are confidential, and may
only be disclosed as authorized by the Act. Prop. I.C. § 39-9720(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. § 39-9720(4)(a), (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. § 39-9720(4)(c).
The heart of the Act is Prop. I.C. § 39-9721, titled "Protections for the
Medical Use of Marijuana." Subsection (1) sets the pattern by stating, "[a]
cardholder 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 )(f) (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. § 39-9721 (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

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; or (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. 1.C. § 399721 (1 )(a)-(e).

Secretary of State Denney
November 17, 2020
Page 9

qualifying patient's debilitating medical condition or symptoms associated with the
qualifying patient's debilitating medical condition pursuant to this Chapter." Id.
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. §39-9721(3).
Under Prop. I.C. § 39-9721 (5)(a) through (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. § 39-9721 (9) reads:
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 or criminal
forfeiture if the basis for the forfeiture is unrelated to the medical use
of marijuana.
(Emphases added.) Whether a civil or criminal forfeiture is "unrelated" to the
medical use of marijuana under Prop. I.C. § 39-9721 (9) 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. § 39-9721(10).
Under the heading, "Discrimination Prohibited," Prop. I.C. § 39-9722 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

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November 17, 2020
Page 10

under federal law." 8 Prop. I.C. § 39-9722(1 ). Subsection (2) gives patients the
same rights, privileges, and protections under state and local law as persons
prescribed medications with regard to interactions with employers, drug testing by
employers, and drug testing required by state or other governmental authorities.
Subsection (4) states that "[n]o employer is required to allow the ingestion of
marijuana in any workplace or to allow any employee to work while under the
influence of marijuana." The subsection 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." Id.; see Prop. I.C. § 39-9703(4). Subsections (5) through
(7) preclude discrimination in regard to organ and tissue transplants, child custody
and visitation rights, and firearm possession or ownership. Under subsection (8),
"[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), they complied with the requirements of
the Act. Prop. I.C. § 39-9723(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. § 39-9724(1). Also, "[t]he Department may revoke the registry
identification card of any cardholder who knowingly violates this Chapter." Prop.
I.C. § 39-9724(3). Revocation is subject to review under chapter 52, title 67, Idaho
Code.
If the Department fails to adopt rules to implement the Act within 120 days
of the Act's enactment, any citizen may commence a mandamus action to compel
compliance. Prop. I.C. § 39-9725.
In sum, Section 1 of the Act generally decriminalizes under state law the
possession of up to four ounces of marijuana and, if given a "hardship cultivation
designation," six marijuana plants for patients or caregivers. The Act also protects
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. § 39-9703(1 )-(3).

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November 17, 2020
Page 11

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
with 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 alia: formulating rules and regulations to
implement and maintain the Act's numerous and far-reaching measures; verifying
information and timely approving applications and renewal requests submitted for
registry identification cards and registration certificates; establishing and
maintaining a law enforcement verification system; providing rules for security,
recordkeeping, and oversight; maintaining and enforcing confidentiality of records;
and providing an annual report to the Idaho Legislature.
As noted in 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, titled "Severability," provides that if any provision of the Act is
declared invalid, the remaining portions of the Act remain valid.

8.

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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November 17, 2020
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, 317-18, 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.
In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483,
486, 121 S. Ct. 1711, 1715, 149 L. Ed. 2d 722 (2001), the United States Supreme
Court described a set of circumstances that appear similar to the system proposed
in the Initiative:
In November 1996, California voters enacted an initiative
measure entitled the Compassionate Use Act of 1996. Attempting
"[t]o ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes," Cal. Health & Safety Code
Ann.§ 11362.5 (West Supp. 2001), the statute creates an exception
to California laws prohibiting the possession and cultivation of
marijuana. These prohibitions no longer apply to a patient or his
primary caregiver who possesses or cultivates marijuana for the
patient's medical purposes upon the recommendation or approval of
a physician. Ibid. In the wake of this voter initiative, several groups
organized "medical cannabis dispensaries" to meet the needs of
qualified patients.
[Citation omitted.]
Respondent Oakland
Cannabis Buyers' Cooperative is one of these groups.

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November 17, 2020
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 (citation omitted). 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," [21 U.S.C.] § 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." [United States v. Oakland Cannabis Buyer's
Coop., 190 F.3d. 1109, 1114 (9th Cir. 1999)]. 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 (footnotes omitted).
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.

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November 17, 2020
Page 14

In sum, the State of 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. App'x
643, 644 (unpublished) (9th Cir. 2008), contrary to the plaintiff's contention that,
because he was authorized under state law to use marijuana for medical purposes,
he was illegally denied housing, the Ninth Circuit explained:
The district court properly rejected the Plaintiffs' attempt to
assert the medical necessity defense. See Raich v. Gonzales, 500
F.3d 850, 861 (9th Cir.2007) (stating that the defense may be
considered only when the medical marijuana user has been charged
and faces criminal prosecution). The Fair Housing Act, Americans
with Disabilities Act, and Rehabilitation Act all expressly exclude
illegal drug use, and AHA did not have a duty to reasonably
accommodate Assenberg's medical marijuana use. See 42 U.S.C.
§§ 3602(h), 1221 0(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 & Indus., 230 P.3d 518, 520 (Or. 2010). Therefore, the provisions

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November 17, 2020
Page 15

of the initiative, Prop. I.C. §§ 39-9701, 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.

Other Recommended Revisions or Alterations

In addition to the legal and non-legal problems previously discussed, the
initiative has one other aspect that merits consideration. Although "usable"
marijuana is referred to in the proposed ballot title, it is not found anywhere else in
the Act. It is suggested that, for clarity, the word "usable" be omitted in that respect.
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 Jackee K. Winters, 154 E. Gettysburg Street,
Boise, Idaho 83706.

Attorney General
Analysis by:

John C. McKinney
Deputy Attorney General