What did the Idaho Attorney General say about the 2021 ballot initiative to legalize possession of small amounts of marijuana for adults in Idaho?

Plain-English summary

In June 2021, an initiative was filed with the Idaho Secretary of State to legalize private possession, use, and transfer of three ounces or less of marijuana by persons at least 21 years old. The initiative would have added a new Chapter 35 to Idaho Code title 37 (which currently houses Idaho's Uniform Controlled Substances Act in Chapter 27).

Under Idaho Code section 34-1809, the Attorney General reviewed the proposed initiative and issued an advisory Certificate of Review. The certificate's takeaways:

• State law side: The initiative is substantively lawful as a state-law matter. The Idaho Legislature has authority to define crimes, including drug crimes, and to repeal or amend its own controlled-substances framework. An initiative is a permissible vehicle to amend Idaho Code title 37.

• Federal law side: The federal Controlled Substances Act (21 U.S.C. section 801 et seq.) classifies marijuana as Schedule I and prohibits its possession, distribution, and manufacture. State legalization does not "preempt" the federal prohibition; both can coexist. Under the CSA's savings clause (21 U.S.C. section 903) and Murphy v. NCAA (2018), the federal government cannot "commandeer" state law enforcement to enforce federal drug law. So state legalization is constitutionally permissible. But state legalization doesn't immunize residents from federal enforcement of the federal CSA.

• Drafting issues: The AG flagged interaction problems between the new Chapter 35 and the existing Chapter 27 (Uniform Controlled Substances Act), gaps in the enforcement scheme for the new chapter (no clear penalties for violations of the three-ounce or 21-or-older limits), and federal program conflicts (federal workplaces, federal transportation programs, federal benefits and housing programs that condition eligibility on no marijuana use).

• Federal employment, housing, and benefits issues: Federal law prohibits marijuana use across many federal programs. State legalization doesn't change federal rules. Idaho residents working federal jobs, receiving federal housing assistance, or participating in federal-grant programs would still face federal-level consequences for marijuana use, even if their state-level conduct were lawful.

The AG's review was limited to legality and form. The AG took no policy position on whether marijuana should be legalized.

What this means for you

If you are an Idaho voter

If a similar marijuana legalization initiative appears on a future Idaho ballot, this Certificate of Review framework will apply. Read the AG's analysis for the legal mechanics. The takeaways are: state legalization is constitutionally permissible, federal prohibition continues regardless of state law, and the practical effect depends on enforcement priorities at all levels.

If you are a cannabis advocate organizing initiatives

The AG's analysis confirms the basic legal viability of marijuana legalization initiatives in Idaho. Build the initiative carefully:

• Address the interaction with the existing Uniform Controlled Substances Act explicitly (does the new chapter override conflicting parts of Chapter 27, or supplement them?)
• Include an enforcement scheme for violations of any state-law limits (age, quantity, public use)
• Address regulatory framework: licensing, taxation, distribution, public consumption
• Acknowledge federal-law continuing effects in any voter education materials

If you are a law enforcement officer in Idaho

If a marijuana legalization initiative passes, your enforcement obligations under Idaho law would change to whatever the new statute says. Federal CSA enforcement is the federal government's job; you don't have an obligation to enforce federal drug law. Murphy v. NCAA confirms that.

In practice, the relationship between state-decriminalized conduct and federal enforcement varies by jurisdiction. Watch federal Department of Justice guidance and Idaho-specific state policy.

If you are a prosecutor

State legalization removes state-charging options for the legalized conduct. Federal charges (under the CSA) remain available for federal prosecutors. Joint task forces and information-sharing arrangements get more complex when state and federal laws diverge.

If you are an employment or HR lawyer

State legalization does not preempt federal employment requirements. Federal employees, federal contractors with drug-free-workplace clauses, federally regulated transportation employees (DOT rules), and certain federally licensed professionals all remain subject to federal marijuana prohibitions even if state law legalizes possession.

For private employers: state law typically still allows drug testing and termination for marijuana use unless the state legalization statute explicitly carves out employment protections. The AG's certificate flagged this as something the initiative would need to address.

If you are an Idaho resident receiving federal housing or benefits assistance

Federal HUD-assisted housing, SNAP eligibility, federal student aid, and other federal benefits are governed by federal rules. Marijuana use can affect eligibility regardless of state legality. State legalization does not change federal program rules.

If you are a federal program participant (active military, federal employee)

State legalization changes nothing for you. Federal Hatch Act, military regulations, and federal employment drug-testing remain. The penalties for federal violations remain in place.

If you are a drug policy researcher

The AG's analysis tracks the standard preemption doctrine: 21 U.S.C. section 903 savings clause plus Murphy anti-commandeering means state legalization is permissible. State laws creating regulated cannabis markets (license-and-tax frameworks) require more elaborate state-law architecture than simple decriminalization. Idaho's 2021 initiative was on the simpler "decriminalize possession" end.

Background and statutory framework

Idaho's initiative process is set up by Idaho Code chapter 18 of title 34. Idaho Code section 34-1809 requires the AG to issue a Certificate of Review for every proposed initiative.

Idaho Code title 37, chapter 27 is the Uniform Controlled Substances Act. Marijuana is currently a Schedule I controlled substance under Idaho law. Possession of any amount is currently a misdemeanor, with felony exposure for larger quantities.

The 2021 initiative would have added a new Chapter 35 to Title 37, creating a separate framework for marijuana possession by adults 21 and over, up to three ounces. The relationship between the new Chapter 35 and the existing Chapter 27 was a key drafting question.

Federal law: the Controlled Substances Act (21 U.S.C. section 801 et seq.) classifies marijuana as Schedule I (21 U.S.C. section 812). 21 U.S.C. section 841 sets federal trafficking offenses. The savings clause at 21 U.S.C. section 903 says the CSA does not preempt state law unless there is a "positive conflict" that makes compliance with both impossible.

Gonzales v. Raich (2005) 545 U.S. 1 confirms federal authority to enforce the CSA against state-licensed medical marijuana patients. Murphy v. NCAA (2018) 584 U.S. 453 confirms that the federal government cannot "commandeer" state legislatures or enforcement to enforce federal law. State legalization is permissible; federal continued prohibition is also permissible.

Common questions

Did this initiative make it onto the ballot?
This particular initiative did not qualify under Idaho's signature requirements (made more demanding by S.B. 1110 in 2021).

Has Idaho legalized marijuana?
As of 2026, Idaho remains one of the few states without medical or recreational marijuana legalization. Cannabis prohibition continues under Idaho Code title 37, chapter 27.

Could a future initiative legalize marijuana in Idaho?
Legally, yes. The legal framework permits it. Practically, the signature requirements and political environment have made it difficult.

What about CBD or hemp products?
Federal law (the 2018 Farm Bill) legalized hemp and hemp-derived CBD with less than 0.3% THC. Idaho law has its own framework, with restrictions tighter than federal in some respects. Counsel current Idaho counsel for the operative regulatory rules.

If I bring legal marijuana from Oregon or Washington into Idaho, what happens?
Idaho's prohibition still applies. Crossing state lines with a controlled substance also triggers federal enforcement. State legalization elsewhere does not protect possession in Idaho.

What about federal employees who use marijuana legally in their state?
Federal employment drug testing and Hatch Act rules apply nationally. State legality does not provide a defense. Many federal agencies have specific guidance on this.

Does this opinion address medical marijuana?
No. This certificate addresses a recreational decriminalization initiative for adults 21 and over. Medical marijuana would require separate legislative or initiative action.

Citations

• Idaho Code section 34-1809 (Certificate of Review)
• Idaho Code title 37, chapter 27 (Uniform Controlled Substances Act)
• 21 U.S.C. section 801 et seq. (federal Controlled Substances Act)
• 21 U.S.C. section 903 (CSA savings clause)
• Gonzales v. Raich (2005) 545 U.S. 1
• Murphy v. NCAA (2018) 584 U.S. 453

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2021/07/C06292021_Marijuana.pdf

Original opinion text

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

June 29, 2021

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

Certificate of Review
Proposed Initiative Adding Chapter 35 to Title 37, Idaho Code, to Legalize
the Private Possession, Use, and Transfer of Three Ounces or Less of
Marijuana by Persons at Least Twenty-One Years of Age

Dear Secretary of State Denney:
An initiative petition was filed with your office on June 3, 2021. Pursuant to Idaho
Code section 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 indepth 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

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

Secretary of State Denney
June 29, 2021
Page 2

proposed titles for consideration.
standard set forth above.

Any proposed titles should be consistent with the

MATTERS OF SUBSTANTIVE IMPORT
A.

Summary of the Initiative

The initiative is self-titled the "Personal Adult Marijuana Decriminalization Act"
(hereafter "Act") and is denominated as Idaho Code sections 37-3501, et seq. 1 The Act
seeks to amend title 37, Idaho Code, by adding a new chapter 35, which decriminalizes
the possession and use of three ounces or less of marijuana on private property by
persons at least 21 years of age, and protects such persons from arrest, prosecution,
property forfeiture, discrimination, and other criminal and civil penalties under Idaho law.
1. Section 1 of the Proposed Act
Section 1 begins with the creation of a new section in title 37 of the Idaho Code
and an identification of the short title of the Act.
a. Prop. I.C. § 37-3502
Prop. I.C. § 37-3502 is a "Definitions" section, which defines marijuana "for the
purposes of this Chapter" differently than the general controlled substances definition of
marijuana set forth in Idaho Code section 37-2701 (t). Although those differences are
likely irrelevant here, they should nonetheless be noted. The Act's definition of marijuana,
see Prop. I.C. § 37-3502(1), does not have an exception for hemp, while the newest
rendition of Idaho Code section 37-2701 (t), effective April 16, 2021, excludes hemp (or
industrial hemp) possessed, grown, transported, etc., under the State Plan authorized by
the federal 2018 Farm Bill 2 from "marijuana." Additionally, Idaho Code section 37-2701 (t)
defines marijuana without referencing tetrahydrocannabinol ('THC"), 3 while the Act
provides that a substance containing any THC is deemed to be marijuana. In short, the
marijuana referenced in the Act is different from the marijuana defined in the general
controlled substances provisions.
The Act next defines "personal amount of marijuana" "[w]ith respect to a person
who is at least twenty-one (21) years of age" as three ounces of marijuana. Prop. I.C. §
37-3502(2). "Personal use of marijuana" means, with respect to the same age limitation,
1

References to "proposed" I.C. §§ 37-3501, et seq., will read, "Prop. I.C. § 37-3501," etc.
Pub. L. No. 115-334, §§ 10101-10116, codified at 7 U.S.C. §§ 1639o-1639s.
3 While not defining substances containing THC as marijuana, Idaho Code section 37-2701(t) does
create a presumption that any substance that contains any THC is "marijuana." Under a separate statutory
provision, Idaho Code section 37-2705(d)(27), any substance containing any quantity of THC is an illegal
schedule 1 hallucinogenic substance in its own right.
2

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June 29, 2021
Page 3

"possession and usage of a personal amount of marijuana for ingestion by any means,"
possession and use that "occurs on and within private property," and "[w]ith permission
of the property owner." Prop. I.C. § 37-3502(3)(a)(i)-(iii).
b. Prop. I.C. § 37-3503
Prop. I.C. § 37-3503 ("Limitations") sets out actions that are not protected or
immunized from criminal or civil sanction by the Act. They are: (1) conduct that is
negligent or constitutes professional malpractice under the influence of marijuana; (2)
possession or "engaging in the personal use" of marijuana while on a school bus or in a
correctional facility; (3) smoking or vaping marijuana (a) on "any form of public
transportation," (b) on "the grounds of any licensed daycare, preschool, primary or
secondary school," and (c) "where tobacco smoking is prohibited;" (4) operating,
navigating, or being in actual physical control of any motor vehicle, aircraft, train,
motorboat, etc., while under while under the influence of marijuana; (5) extractions of
marijuana by using certain solvents; (6) using marijuana in a way unauthorized under the
Act; and (7) cultivating live marijuana plants of any size or development. Prop. I.C. § 373503(8) is a statement that nothing in the Act requires (a) "[a]ny person or establishment"
in possession of property to "allow a guest, client, customer, or other visitor to smoke
marijuana on or in that property" and (b) a "licensed daycare, preschool, primary or
secondary school to allow the personal use of marijuana on its property." Several of the
above limitations warrant further discussion.
Subsection (2) of Prop. I.C. § 37-3503 precludes the "personal use of marijuana"
on a school bus and a correctional facility. However, "personal use of marijuana" is
specifically defined, in part, as possession and usage of marijuana that "occurs on and
within private property." See Prop. I.C. § 37-3502(3)(a)(ii) (emphasis added). Therefore,
it is impossible to have "personal" use of marijuana on a public school bus or a public
correctional facility. It is recommended that the word "personal" be excised from Prop.
I.C. § 37-3503(2).
Next, the following exception in Prop. I.C. § 37-3503(4) is problematic; it states:
[E]xcept a person may not be considered to be under the influence of
marijuana because of the presence of metabolites or components of
marijuana that appear in insufficient concentration to cause impairment.
(Emphasis added.) The italicized language in the quotation above of Prop. I.C. § 373503(4) makes the provision subject to constitutional challenge due to vagueness. The
provision does not explain or define what level of "metabolites or components of
marijuana that appear in insufficient concentration" may "cause impairment."

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June 29, 2021
Page4

Further, determining, based on metabolite level, 4 whether someone was under the
influence of marijuana at the time they were operating a motor vehicle is extremely
difficult. See State v. Stark, 157 Idaho 29, 33,333 P.3d 844, 848 (Ct. App. 2013) (citation
omitted) ("A blood test indicating the presence of Carboxy-THC shows nothing more than
past marijuana use."). However, as explained in State v. Morin, metabolite test results,
although not decisive, can be relevant in proving a marijuana-based DUI offense:
[A]lthough, as we held in Stark, carboxy-THC standing alone, is not
sufficient to prove that marijuana use was the cause of intoxication,
carboxy-THC evidence is relevant when combined with other evidence
indicating the driver's recent marijuana use. The Idaho Rules of Evidence
do not require that any particular piece of evidence completely prove the
proponent's case. Rather, evidence is relevant when it has "any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." 1.R.E. 401. Evidence that carboxy-THC was found
in an impaired person's bloodstream makes it more likely that marijuana
use caused the impairment.
158 Idaho 622,629, 349 P.3d 1213, 1220 (Ct. App. 2015). See Stark, 157 Idaho at 31,
333 P.3d at 846.
Prop. I.C. § 37-3503(4) may improperly deny the State its ability to present
evidence by automatically excluding metabolite test results that, even though insufficient
"standing alone" to prove marijuana intoxication, would be relevant when combined with
other evidence of such intoxication. See State v. Stewart, 161 Idaho 235, 237, 384 P.3d
999, 1001 (Ct. App. 2016) (citation omitted) ("Evidence that is relevant to a material and
disputed issue concerning the crime charged is generally admissible."); I.R.E. 401.
Therefore, it is recommended that the "exception" language of Prop. I.C. § 37-3503(4) be
removed or modified to make clear that, consistent with current law, driving or operating
a motor vehicle under the influence of marijuana may not be proved solely by the mere
presence of metabolites or components of marijuana.
Prop. I.C. § 37-3503(4) may also conflict with other state and federal regulations
that govern the employment of certain types of workers, such as commercial vehicle
operators.

4 In State v. Morin, 158 Idaho 622,624, 349 P.3d 1213, 1215 (Ct. App. 2015), the Court explained
that "Carboxy-THC is an inactive metabolite of marijuana that has no pharmacological effects and is,
therefore, not a cause of intoxication." "Rather, it can be detected in a blood sample for at least ten days
and up to a month after a person uses marijuana, long after the person ceases to be intoxicated." kl

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June 29, 2021
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C.

Prop. I.C. § 37-3504

The "Facility Restrictions" set out in Prop. I.C. § 37-3504 do not pose any legal
concerns until the last provision. Subsection (1) states that nursing and intermediate care
facilities, hospices, hospitals, or "other type[s] of residential care or assisted living
facilit[ies] may adopt reasonable restrictions on the personal use of marijuana by their
residents or a person receiving impatient services[.]" (Emphasis added.) Those
restrictions include: (a) not storing or maintaining the "person's supply of marijuana;" (b)
that the facility, caregivers, and hospice agencies "are not responsible for providing the
marijuana for persons;" (c) that marijuana "is consumed by a method other than smoking;"
and (d) that marijuana is consumed only in specified areas. Prop. I.C. § 37-3504(1 )(a)(d).
Prop. I.C. § 37-3504(3), however, appears to conflict with Prop. I.C. § 373502(3)(a)(ii)-(iii), which defines "personal use of marijuana" as, in part, the possession
and use of marijuana on and within private property occurring "[w]ith permission of the
property owner." Prop. I.C. § 37-3504(3) appears to contradict the definition of "personal
use of marijuana" by requiring certain private property owners to allow (i.e., not
unreasonably limit) the "personal use of marijuana;" it reads:
A facility listed in subsection (1) may not unreasonably limit a
person's access to or personal use of marijuana as allowed under this
Chapter unless failing to do so would cause the facility to lose a monetary
or licensing-related benefit under federal law or regulations.
Prop. I.C. § 37-3504(3) (emphases added). Prop. I.C. § 37-3504(3) inversely suggests
that a facility may "unreasonably" limit marijuana use if not doing so "would cause the
facility to lose a monetary or licensing-related benefit under federal law or regulations."
Prop. I.C. § 37-3504(3) may invite a constitutional challenge based on vagueness with
regard to what constitutes an "unreasonable limitation" on "a person's access to or
personal use of marijuana." It may also invite an equal protection challenge based on
restricting the private property rights of certain property owners and not others. In short,
consideration should be given to fully excising Prop. I.C. § 37-3504(3) from the proposed
initiative petition.

d. Prop. I.C. § 37-3505
Prop. I.C. § 37-3505 ("Protections for the Personal Use of Marijuana") states in
subsection (1) that persons (a) engaged in the personal use of marijuana as allowed by
the Act, (b) offering or providing "a personal amount of marijuana" to others at least 21
years of age, or (c) transporting a personal amount of marijuana "from a jurisdiction where
the marijuana was legally purchased" are "not subject to arrest, prosecution, or penalty in
any manner, or denial of any right or privilege, including any civil penalty or disciplinary

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June 29, 2021
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action by a court, or occupational or professional licensing board or bureau[.]" Prop. I.C.
§ 37-3505(1)(a)-(c). The above proposed statutory provisions present several concerns.
Prop. I.C. § 37-3505(1)'s provisions would impact existing court orders prohibiting
the possession and use of marijuana; existing contractual agreements in regard to
employees' use of controlled substances in, or affecting, the workplace; and existing
occupational or professional licensing board orders, statutes, and regulations that prohibit
licensees from using marijuana. Finally, the phrase "any right or privilege" could be
challenged as unconstitutionally vague due to the provision's effect on existing court
orders and contracts.
As a practical matter, Prop. I.C. § 37-3505(1)(a)-(c) would, on its face, allow a
series of "personal amount of marijuana" sales and deliveries to be made as long as each
transaction involved three ounces or less. The provision allows persons at least 21 years
of age to engage in "[o]ffering or providing a personal amount of marijuana" to others at
least 21 years of age. kl Such solicitations and/or deliveries could take place in a variety
of settings such as bars, restaurants, stores, motels, and universities-with the
permission of the property owners. Prop. I.C. § 37-3502(3)(a)(iii).
Assuming compliance with the other provisions of Prop. I.C. § 37-3505(1),
subsection (1 )(c) authorizes "[t]ransporting a personal amount of marijuana from a
jurisdiction where the marijuana was legally purchased." The problem with that
subsection is that, as discussed in Section B below, marijuana possession (etc.) is not
legal under current federal law. Therefore, it is recommended that the last part of
subsection (1)(c) be amended to read "legally purchased under state law."
Prop. I.C. § 37-3505(2) states:
There is a presumption in criminal, civil, and administrative court
proceedings that a person is engaged in the personal use of marijuana
pursuant to this Chapter if the person is in possession [of] an amount of
marijuana that does not exceed the personal amount.
Although the presumption of Prop. I.C. § 37-3505(2) is likely intended to apply only to
persons at least 21 years of age, it does not read that way. As a result, persons younger
than 21 could use the presumption-most notably in criminal cases for misdemeanor
possession of marijuana. If that is not the intention of the author(s) of the Act, it is
recommended that a 21-year age restriction be added.
Prop. I.C. § 37-3505(3) protects holders of professional or occupational licenses
from discipline for "providing advice or services" related to "marijuana activities" allowed
under the Act, and prohibits the denial of such licenses based on prior employment related
to such activities.

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June 29, 2021
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Prop. I.C. § 37-3505(4) prohibits persons from being arrested, prosecuted, or
penalized "in any manner" or "denied any right or privilege" (etc.) for (a) providing or
selling drug paraphernalia for the personal use of marijuana by persons at least 21 years
of age; (b) being in the presence or vicinity of persons using marijuana under the Act; (c)
assisting persons at least 21 years of age with administering marijuana under the Act;
and (d) allowing a person's property to be used for acts that are "exempt from criminal
penalties" under the Act. Similar to subsection (1), subsection (4) would impact Idaho's
criminal and civil courts' ability to issue orders prohibiting the conduct allowed under this
subsection; may conflict with existing Idaho employment law and/or contractual
agreements in regard to employees' use of controlled substances in, or affecting, the
workplace; may conflict with orders, statutes, and regulations of professional licensing
boards; and the phrase "any right or privilege" could be challenged as unconstitutionally
vague. The term "administering" in Prop. I.C. § 37-3505(4)(c) could also be challenged
as unconstitutionally vague.
Prop. I.C. § 37-3505(5) prohibits the seizure or forfeiture of property otherwise
subject to seizure under state or local law if that property was used in "any activity
permitted under this Chapter[.]" The provision does not apply if "the basis for the forfeiture
is unrelated to the personal use of marijuana." (Emphasis added.) That exception is
subject to constitutional challenge based on the ambiguity of what "unrelated" means.
For example, a house used for trafficking large amounts of marijuana could also have
residents who use marijuana in accordance with the Act. Whether a seizure of the house
based on trafficking in marijuana would be considered "unrelated to the personal use of
marijuana" would be subject to conjecture. It is recommended that the last part of the
exception be modified to read (or similarly read), "This subsection does not prevent civil
or criminal forfeiture if the legal basis for the forfeiture is not the personal use of marijuana
as authorized under this Chapter."
Prop. I.C. § 37-3505(6) states that the "odor of marijuana does not constitute
probable cause or reasonable suspicion, nor may it be used to support the search of a
person or property of a person." Such a provision would be unprecedented in carving out
an exception to consideration of the "totality of circumstances" that has been the hallmark
for determining whether there is reasonable suspicion for a temporary detention under
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), or probable cause for
an arrest or issuance of a search warrant. See State v. Pachosa, 160 Idaho 35, 39, 368
P.3d 655, 659 (2016) (citation omitted) ('To determine whether such reasonable
articulable suspicion existed, courts must examine the totality of the circumstances which
were known to the officer before the detention occurred."); State v. Finnicum, 147 Idaho
137, 140, 206 P.3d 501, 504 (Ct. App. 2009) (citation omitted) ("The probable cause
determination "depends upon the totality of the circumstances and the assessment of
probabilities in the particular factual context."). As a practical matter, this provision would
make policing illegal marijuana, including violations not otherwise protected by the Act

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June 29, 2021
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such as marijuana trafficking, more difficult by eliminating the odor of marijuana as a factor
to be considered in developing reasonable suspicion and probable cause.

e. Prop. I.C. § 37-3506
Under the heading "Discrimination Prohibited," Prop. I.C. § 37-3506(1) states:
Except as provided in 37-3503 and 37-3504, no school, landlord, nursing
facility, intermediate care facility, hospice house, hospital, or other type of
residential care or assisted living facility may refuse to enroll, admit, or lease
to[,] and may not otherwise penalize a person for engaging in conduct
allowed under this Chapter, unless doing so would violate federal law or
regulations or cause [such entities] to lose a monetary or licensing-related
benefit under federal law.
(Emphasis added.) The obvious problem with the above provision is that marijuana
possession and use is currently prohibited by federal law. Therefore, the entire provision
is rendered futile unless and until marijuana is legalized under federal law. Also, this
provision is internally inconsistent with the requirement that the "personal use of
marijuana" be done with "permission of the property owner." Prop. I.C. § 373502(3)(a)(iii). If such permission were denied, the property owner would be in violation
of the anti-discrimination provision of Prop. I.C. § 37-3506(1 ). The different treatment for
different types of private property owners could give rise to constitutional equal protection
challenges.
Prop. I.C. § 37-3506(2) states that employers are not required to allow marijuana
to be ingested in the workplace, or to allow employees to work while under the influence
of marijuana. The subsection has a caveat similar to the one discussed above with regard
to Prop. I.C. § 37-3503(4) (operating motor vehicles (etc.) while under the influence of
marijuana), which is:
[P]rovided that an employee shall not be considered to be under the
influence of marijuana because of the presence of metabolites or
components of cannabis that appear in insufficient concentration to cause
impairment.
(Emphasis added.) The italicized language in the quotation above of Prop. I.C. § 373506(2) makes the provision subject to constitutional challenge due to vagueness. The
provision does not explain or define what level of "metabolites or components of cannabis
that appear in insufficient concentration" may "cause impairment." Also, subsection (2)
may conflict with existing Idaho employment law and/or contractual agreements in regard
to employees' use of controlled substances in, or affecting, the workplace and may also
interfere with existing employment contracts. The provision may also conflict with other

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June 29, 2021
Page 9

state and federal regulations that govern the employment of certain types of workers,
such as commercial vehicle operators.
Under subsection (3) of Prop. I.C. § 37-3506, the use of marijuana authorized by
the Act does not constitute the "use of an illicit substance or otherwise disqualify a person
from receiving medical care," including organ and tissue transplants. This section
interferes with the professional judgment of medical professionals and could result in the
override of a valid and appropriate exercise of medical judgment. This could subject
medical professionals to potential malpractice claims by requiring them to perform
transplants that would not otherwise be considered medically appropriate.
Prop. I.C. § 37-3506(4) states that a person "shall not be denied custody of or
visitation rights or parenting time with a minor" for conduct allowed under the Act.
Subsection (4) would preclude family law courts from intervening when a custodian's use
of marijuana pursuant to the Act nonetheless negatively affects children. This could
prevent courts from issuing orders designed for the protection of children in a variety of
situations, including, but not limited to, when the parent leaves marijuana readily
accessible to children or is not properly caring for their children.
Prop. I.C. § 37-3506(5) precludes state and local agencies from restricting or
infringing upon a person's right to own or possess a firearm or obtain a firearm certification
for conduct allowed under the Act. This may conflict with existing federal laws and
regulations related to the possession and use of firearms.
Prop. I.C. § 37-3506(6) prohibits schools, landlords, and employers from being
penalized or denied a benefit for "enrolling, leasing to, or employing" a person engaged
in conduct under the Act. For the reasons stated previously herein, this provision may
conflict with state and federal regulations concerning employment and licensing of certain
individuals. It may also conflict with existing contracts and leases. It may also give rise
to constitutional equal protection challenges because of the different treatment accorded
to different types of employers and property owners.
2. Section 2 of the Proposed Act
Section 2 of the Act, "Severability," provides that if any provision of the Act is
declared invalid, the remaining portions of the Act remain valid.
3. Section 3 of the Proposed Act
Section 3 of the Act proposes amendments to existing provisions of the Idaho
Controlled Substances Act. The proposed amendments, for the most part, except the
activities permitted in the new title 37, chapter 35 from the Controlled Substances Act's
prohibitions. However, three of the modifications to related statutes warrant comment.

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June 29, 2021
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First, the Act seeks to amend Idaho Code section 37-2732(k) (restitution for costs
of law enforcement investigations) by excising the words "or misdemeanor" from its initial
qualifying phrase which currently reads, "Upon conviction of a felony or misdemeanor
violation under this chapter[.]" As a result, Idaho Code section 37-2732(k) would allow
courts to "order restitution for costs incurred by law enforcement agencies in investigating"
violations only in cases resulting in felony convictions. 5 That modification sweeps far
more broadly than the stated purpose of the Act and would prohibit recovery in nonmarijuana misdemeanor cases. Moreover, because the proposed modification to Idaho
Code section 37-2732(k) is unrelated to the Act, it likely violates the single-subject rule of
article Ill, section 16 of the Idaho Constitution, which states:
UNITY OF SUBJECT AND TITLE. Every act shall embrace but one subject
and matters properly connected therewith, which subject shall be expressed
in the title; but if any subject shall be embraced in an act which shall not be
expressed in the title, such act shall be void only as to so much thereof as
shall not be embraced in the title.
(Emphasis added.) It is recommended that this modification be removed from the
proposed initiative petition.
The second matter to note in Section 3 is that it modifies Idaho Code section 372732C(a) by excluding conduct authorized by the Act from its provisions. That statute
makes it "unlawful for any person on a public roadway, on a public conveyance, on public
property or on private property open to the public, to use or be under the influence of any
controlled substance specified" in certain subsections, which includes Idaho Code section
37-2705(d)(27), "tetrahydrocannabinols," the psychoactive ingredient in marijuana. By
excluding marijuana use "as authorized by Chapter 35, Title 37," the modification allows
persons to become intoxicated from using marijuana and be in the described public areas.
By its own terms, however, Prop. I.C. § 37-3503(4) specifically states it does not authorize
someone to operate any motor vehicle, aircraft, train, motorboat, or other motorized form
of transport while under the influence of marijuana. To eliminate the conflict between
these two sections, it is recommended that the proposed amendment to Idaho Code
section 37-2732C(a) be removed from the proposed initiative petition.

5

There are misdemeanor drug offenses that do not involve marijuana, such as possession of
psilocybin. See Idaho Code§§ 37-2705(d)(25), 37-2732(c)(3).

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June 29, 2021
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4. Section 4 of the Proposed Act
   The proposed amendment to Idaho Code section 63-4202(2)(a) would change the
   identified quantity of marijuana from 42 ½ grams to 86 grams. This section of the Idaho
   Code imposes an illegal drug tax on certain amounts of controlled substances. The
   amendment proposes 86 grams, which equates to approximately 3.033 ounces. We note
   only that the amendment results in an amount that is slightly more than the 3 ounce
   personal use limit contained in Prop. I.C. § 37-3502.

B.

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

The United States Congress "has classified marijuana as a Schedule I drug, 21
U.S.C. § 812(c), and federal law prohibits its manufacture, distribution, and possession,
21 U.S.C. § 841(a)(1)." Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., 230
P.3d 518, 527 (Or. 2010). However, Idaho is free to enforce its own laws, just as the
federal government is free to do the same. See State v. Marek, 112 Idaho 860, 865, 736
P.2d 1314, 1319 (1987) (citation omitted) ("[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 (2001 ),
the United States Supreme Court made clear that prosecutions under the federal
Controlled Substances Act are not subject to a "medical necessity defense," even though
a 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 Act here would not affect the ability of the federal government
to prosecute marijuana-related crimes under federal laws.
In short, Idaho is free to pass and enforce its own laws creating or negating criminal
liability relative to marijuana. But, 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:

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June 29, 2021
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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.

kl at 644.

See Eccleston v. City of Waterbury, No. 3:19-cv-1614 (SRU), 2021 WL
1090754, at 8 (D. Conn. Mar. 22, 2021) (quoting Kamakeeaina v. Armstrong Produce,
Ltd., No. 18-cv-00480-DKW-RT, 2019 WL 2019 at 15 (D. Haw. Mar. 22, 2019) ("Courts
that have considered ADA claims for failure to accommodate medical marijuana use have
relied on the CSA's classification of marijuana as a Schedule I illegal substance to
conclude that 'using marijuana is not a reasonable accommodation."'); The Kind &
Compassionate v. City of Long Beach, 205 Cal. Rptr. 3d 723, 733 (Cal. App. 2d Dist.
2016) ("The claim fails on the same basis as plaintiffs' other disability discrimination
claims: there is no right to convenient access to marijuana."). 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, 230 P.3d at 520.

In sum, the provisions of the initiative, Prop. I.C. §§ 37-3501, 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.

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June 29, 2021
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C.

Other Recommended Revisions or Alterations

Apart from the legal and non-legal problems previously discussed or noted , there
are no other recommended revisions or alterations.
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 Russ Belville , Idaho Citizens Coalition, 304 W. Logan St. , Caldwell, ID 83605 .

LAWRENCE G. WASDEN
Attorney General
Analysis by:
John C. McKinney
Deputy Attorney General