What problems did the Idaho AG flag with the proposed Idaho Medical Marijuana Act ballot initiative in 2022?

Plain-English summary

Petitioner "Kind Idaho" filed an initiative on August 16, 2022 to create the Idaho Medical Marijuana Act. The proposed Act would have:

• Authorized the Idaho Department of Health & Welfare to run a registration system for "qualifying patients" with debilitating medical conditions, "designated caregivers," and "medical marijuana organizations" (dispensaries, production facilities, safety compliance facilities).
• Permitted patients with registry cards to possess up to four ounces of marijuana for medical use, and (with a "hardship cultivation designation") to cultivate up to six plants.
• Created criminal-civil-administrative immunity for cardholders, practitioners, and licensed organizations engaged in medical marijuana activities.
• Imposed a 4% excise tax on dispensary sales (50% to Veterans Services, 50% to the General Fund).
• Banned discrimination against participants by schools, landlords, employers, healthcare facilities, and others (subject to a federal-law carve-out).
• Granted patients a presumption of compliance and an affirmative defense.

AG Lawrence Wasden's office (with Deputy Attorney General John C. McKinney drafting) issued the § 34-1809 Certificate of Review on September 12, 2022. The Cert ran 16 pages and detailed several distinct categories of issues:

Drafting-fatal issues that would prevent the Act from working as written:

1. Chapter numbering conflict. The initiative would have placed the Act at "chapter 97" of title 39, but chapters 97 through 99 of title 39 were already taken (Idaho Energy Conservation Code, Essential Caregivers, Down Syndrome Diagnosis Information Act). Every reference to chapter 97 needed to be revised to chapter 100, and every code-section reference needed to be re-numbered (e.g., § 39-9705 → § 39-10705).

2. Confidentiality provision placement. Idaho Code § 74-122 (effective Jan 1, 2016) says any new confidentiality statute "shall be placed in this chapter," and otherwise "shall be null, void and of no force and effect." The initiative's confidentiality clause at proposed § 39-9720 would not take effect: patient and dispensary records would be open to the public despite the statute. Recommended fix: add a separate provision amending § 74-106 with a new subsection (35) that closes Department records under the Medical Marijuana Act.

Substantive vagueness flags:

3. § 39-9712(2) had language about dispensing marijuana that "would cause the card holder to possess more than the allowable amount of marijuana." The Cert flagged this as void-for-vagueness vulnerable under State v. Cook (Idaho 2019).

4. § 39-9721(9) said property is not subject to forfeiture under the Act unless the basis is "unrelated to the medical use of marijuana." The Cert flagged the "unrelated" line as another vagueness concern.

Federal-law overlay (the "Oakland Cannabis" point):

5. Even if Idaho passed the Act, federal Schedule I status of marijuana under the Controlled Substances Act would still apply. The U.S. Supreme Court in United States v. Oakland Cannabis Buyers' Coop. (2001) rejected a "medical necessity" defense to federal CSA prosecution. So a state-licensed dispensary would still be vulnerable to federal prosecution.

6. Federal Fair Housing Act, ADA, and Rehabilitation Act all expressly exclude illegal drug use, so a federally-funded landlord would have no duty to accommodate medical-marijuana use under federal law (Assenberg v. Anacortes Housing Authority, 9th Cir. 2008). Federal employment cases similarly support employers refusing to accommodate medical-marijuana use (Emerald Steel, Or. 2010).

The Act's anti-discrimination rules in proposed § 39-9722(1) actually acknowledged this, with their carve-out for situations where compliance "would violate federal law or regulations or cause [the entity] to lose a monetary or licensing-related benefit under federal law." The Cert highlighted that this carve-out does much of the work the patient-protection language seemed to promise.

The Cert reviews a great many other detailed provisions of the Act, definitions, "debilitating medical condition" categories, hardship cultivation, dispensary licensing, security, affirmative defense, but its core feedback is the four numbered points above plus the federal-law reality check.

What this means for you

If you are drafting an Idaho medical marijuana initiative

Two of these issues will sink an unmodified Act:

• Pick an unused chapter. Chapters 97, 98, 99 are taken. Any new comprehensive medical marijuana act needs to find a fresh chapter (chapter 100 was open as of 2022; verify currency before drafting). Re-number every section reference accordingly. A find-and-replace pass is cheap; missing references are not.
• Address § 74-122. Confidentiality language belongs in chapter 74 of title 74, not in your new chapter. Either drop the confidentiality provision (and accept that patient records become public) or amend § 74-106 to add the carve-out the Cert recommends.

The vagueness flags on §§ 39-9712(2) and 39-9721(9) are amenable to redrafting. State a specific quantity; define "unrelated" by reference to specific factors.

The federal-law overlay is not fixable by drafting. It is the structural reality for any state medical marijuana measure unless and until the federal Controlled Substances Act changes. The honest framing for voters is that state decriminalization protects patients from state criminal liability, but federal exposure remains; federally-funded housing and federally-tied employment remain unchanged.

If you are an Idaho voter looking at a future medical-marijuana measure

The Cert is a helpful checklist: does the measure use unused chapter and section numbers? Does it amend § 74-106 to protect patient confidentiality? Does it acknowledge that federal law still applies? If a measure on your ballot does not, the legal effects of passing it will be much weaker than the campaign suggests.

If you are a patient with a chronic illness who would qualify for medical marijuana under such a measure

This Cert addresses a specific 2022 initiative. It does not address whether medical marijuana is currently legal in Idaho (it is not as of this opinion's date, with very narrow exceptions). The Cert flags that even if a future measure passes:

• Federal law still treats marijuana as Schedule I.
• Federal-funding-dependent landlords (HUD, public housing) can deny housing based on use, regardless of state law.
• Employers in safety-sensitive or federally-regulated industries can fire or refuse to hire you for use, regardless of state law.
• Custody and visitation, organ transplants, firearms, and other federal-touchpoint issues are subject to federal-law exposures the state law cannot fix.

A future measure could deliver real state-law protection. It cannot deliver federal-law protection.

If you are a landlord or employer in Idaho

Even if Idaho passes a medical marijuana law (whether by initiative or legislation), watch the federal carve-outs in the law's anti-discrimination provisions. The 2022 initiative's § 39-9722(1) explicitly preserved federal-law-compliant denials. You retain authority to enforce federal-law-tied policies (HUD-funded housing, federal contractor drug-free workplace requirements, DOT-regulated safety-sensitive jobs, etc.) regardless of state law.

If you are a state legislator or staffer drafting a comprehensive medical marijuana statute

Three drafting lessons from this Cert:

1. Audit chapter and section numbering against the current code before drafting (2022 numbering may have shifted by now).
2. Place confidentiality provisions in chapter 74-1, not in the substantive chapter, per § 74-122.
3. Build in explicit federal-law carve-outs in anti-discrimination provisions, as the 2022 initiative did. Without them, you set up the public to expect protection the state cannot deliver.

Common questions

Q: Did this initiative reach the Idaho ballot?
A: This Cert is part of pre-circulation review under § 34-1809. Whether the petitioner gathered signatures and the measure reached the ballot is a separate question; check the Idaho Secretary of State's records for the petition's status.

Q: Could a future Idaho medical marijuana initiative cure the federal-law issues?
A: Not directly. Federal Schedule I status and federal housing/employment statutes are federal law. State law cannot displace them. What a state measure can do is provide a state-law shield against state-law prosecution.

Q: What about Idaho's existing low-THC products law?
A: This Cert addresses the proposed comprehensive Medical Marijuana Act, not Idaho's existing limited cannabidiol provisions. Those are separate.

Q: Why is § 74-122 such a deal-killer for confidentiality clauses outside chapter 74?
A: Because the statute itself says any confidentiality provision placed elsewhere "shall be null, void and of no force and effect." It is a hard structural rule, not a default rule, so courts will enforce it.

Q: What is "Oakland Cannabis"?
A: United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001). The U.S. Supreme Court rejected a "medical necessity" defense to a federal Controlled Substances Act prosecution, even though California state law allowed the conduct. The case is the leading federal authority that federal CSA enforcement is unaffected by state medical-marijuana laws.

Q: Does this mean medical marijuana is illegal in Idaho?
A: This Cert addresses a 2022 proposal that would have legalized it under state law. The Cert does not state Idaho's current law. Idaho's current law on marijuana is in title 37 chapter 27: confirm with current sources whether any subsequent legislation has changed the landscape.

Background and statutory framework

§ 34-1809 governs Idaho's pre-circulation review of citizen initiatives. The review is "advisory only," and the petitioner can accept or reject any recommendation.

§ 74-122, effective Jan 1, 2016, requires any statute that "provides for confidentiality or closure of any public record" to be placed in chapter 74. Provisions placed elsewhere are "null, void and of no force and effect." This means a confidentiality provision in a new chapter 97 or 100 of title 39 cannot work.

The federal Controlled Substances Act (21 U.S.C. § 801 et seq.) classifies marijuana as Schedule I. Oakland Cannabis held that federal CSA prosecution is not subject to a "medical necessity" defense even where state law permits the conduct. Federal Fair Housing, ADA, and Rehabilitation Act provisions exclude illegal drug use; Assenberg applies that exclusion to medical-marijuana housing claims; Emerald Steel applies it to employment.

Idaho cases on void-for-vagueness include State v. Cook (Idaho 2019), which the Cert cites for the proposition that statutory provisions must give people of common intelligence fair notice of what conduct is prohibited.

Citations and references

Idaho Code:
- § 34-1809 (initiative review)
- § 54-1800 et seq. (Medical Practice Act)
- § 67 ch. 52 (administrative review)
- § 74-106 (records exempt from disclosure)
- § 74-122 (confidentiality must be in chapter 74)

Federal:
- 21 U.S.C. § 801 et seq. (Controlled Substances Act)
- 42 U.S.C. § 3602(h) (Fair Housing Act, illegal drug exclusion)
- 42 U.S.C. § 12210(a) (ADA, illegal drug exclusion)
- 29 U.S.C. § 705(20)(C)(i) (Rehabilitation Act, illegal drug exclusion)

Cases:
- State v. Cook, 165 Idaho 305, 444 P.3d 877 (2019)
- United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty, superseded by statute on other grounds)
- State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987)
- United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001)
- 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 & Industries, 230 P.3d 518 (Or. 2010)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2022/09/22-82065-Response-COR.pdf

Original opinion text

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

September 12, 2022

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 August 16, 2022. 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 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.

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 sections 39-9701 et seq. 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 & 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." Prop. I.C. §§ 39-9702(6) and (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) and (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 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, etc., and any marijuana produced from the plants grown at the premises or at the patient's residence; and (2) caregivers may assist 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), and (15). Apart from indicating that patients and caregivers are "not subject to arrest, prosecution, or penalty in any manner, [etc.]," Prop. I.C. § 39-9721(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 §§ 54-1800 et seq.)) provide a written recommendation that, in the practitioner's professional opinion, the patient "is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition." Prop. I.C. §§ 39-9702(14), (15), and (19). The recommendation must specify the patient's debilitating medical condition and may only be signed (and dated) in the course of a "bona fide practitioner-patient relationship after the practitioner has completed a full assessment of the patient's 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 (i.e., cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, ALS, 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 of this act." Prop. I.C. § 39-9702(1). Agents of medical marijuana organizations, marijuana dispensaries, marijuana production facilities, and marijuana safety compliance facilities, are exempt from "prosecution, search, or inspection, except by the Department pursuant to 39-9713(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 on a school bus or in any correctional facility; (3) Smoking marijuana on any form of public transportation, on the grounds of any licensed daycare, preschool, primary or secondary school, or in any public place; (4) Operating 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 any "nursing facility, intermediate care facility, hospice house, hospital, or other type of residential care or assisted living facility" to adopt "reasonable restrictions" on the medical use of marijuana. Those facilities do not have to store a qualifying patient's supply of marijuana or provide marijuana to qualifying patients. Prop. I.C. § 39-9704(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 for implementing the Act's measures, including rules for: the form and content of applications and renewals; a system to "score numerically competing medical marijuana dispensary applicants"; the prevention of theft of marijuana and security at facilities; oversight; recordkeeping; safety; and safe and accurate packaging and labeling of medical marijuana. Prop. I.C. § 39-9705. 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 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. § 39-9706. Medical marijuana organizations must have operating documents that include procedures for the oversight of the organization and accurate recordkeeping, and are required to implement adequate security measures. Id. Medical marijuana production facilities must restrict marijuana cultivation, harvesting, etc., within a secure, locked facility only accessible to registered agents. 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). This provision suggests that, if a patient has such a designation, either the patient or the caregiver may cultivate 6 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 10 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, 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 1 year and 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 10 days of any change in name, address, designated caregiver, and their preference regarding who may cultivate marijuana for them, and, upon receipt of such notice, the Department has 10 days to issue a new registry identification card. Prop. I.C. § 39-9718(1)-(3). If the patient changes the 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. See State v. Cook, 165 Idaho 305, 309-10, 444 P.3d 877, 881-82 (2019) (addressing "void-for-vagueness" doctrine premised on the Fourteenth Amendment due process clause).

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 addition 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 records and information received pursuant to the Act confidential, and any dispensing of information by medical marijuana organizations or the Department must identify cardholders and such organizations by their registry identification numbers and not by name or other identifying information. Prop. I.C. § 39-9720(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). In addition, under Prop. I.C. § 39-9720(4)(c), 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.

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[.]" Subsections (1)(b) (nonresident cardholders), (3) (practitioners), (6) (medical marijuana dispensaries and their agents), (7) (medical marijuana production facilities and their agents), and (8) (safety compliance facilities and their agents), are given the same criminal, civil, and administrative protections in regard to their various functions under the Act.

Prop. I.C. § 39-9721(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 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.

(Emphasis 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 under federal law." 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 an employer, 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), the requirements of the Act were complied with. 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. Prop. I.C. § 39-9724(4).

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 cultivator" designation), six marijuana plants for patients or caregivers. The Act also protects agents of medical marijuana production facilities, medical marijuana dispensaries, and safety compliance facilities from civil forfeitures and penalties under state law, and makes it illegal under state law to discriminate against all such participants in regard to education, housing, and employment. Patients receiving a written recommendation by a practitioner stating that they have a debilitating medical condition may obtain marijuana for medicinal use from their (or their caregiver's) cultivation of marijuana or a medical marijuana dispensary. Patients and caregivers must obtain registration identification cards, and medical marijuana organizations must obtain registration certificates from the Department, and continuously update relevant information. The Department is tasked with an extensive list of duties, including, inter alia: formulating rules and regulations to implement and maintain the Act's numerous and far-reaching measures, verifying information and timely approving applications and renewal requests submitted for registry identification cards and registration certificates, establishing and maintaining a law enforcement verification system, providing rules for security, recordkeeping, oversight, maintaining and enforcing confidentiality of records, and providing an annual report to the Idaho Legislature.

As noted at the beginning of this review, Section 2 states that any measures "concerning the legalization, control, regulation, or taxation of marijuana for medical use" that are on the same ballot "shall be deemed to be in conflict with this measure," and that this measure prevails over other measures if it "receives a greater number of affirmative votes[.]"

Section 3, titled "Severability," provides that if any provision of the Act is declared invalid, the remaining portions of the Act remain valid.

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

Idaho is free to enforce its own laws, just as the federal government is free to do the same. The United States Supreme Court has explained:

In Bartkus v. Illinois, 359 U.S. 121 [1959], ... and Abbate v. United States, 359 U.S. 187 [1959], ... this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, "subject [the defendant] for the same offence [sic] to be twice put in jeopardy": "An offence [sic], in its legal signification, means the transgression of a law .... Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted."

United States v. Wheeler, 435 U.S. 313, 316-17, 98 S. Ct. 1079, 1082-83, 55 L. Ed. 2d 303 (1978) (superseded by statute) (quoting Moore v. People of State of Illinois, 55 U.S. 13, 19-20, 14 L. Ed. 306 (1852)) (footnote omitted; emphasis added). See State v. Marek, 112 Idaho 860, 865, 736 P.2d 1314, 1319 (1987) ("[T]he double jeopardy clause of the fifth amendment does not prohibit separate sovereigns from pursuing separate prosecutions since separate sovereigns do not prosecute for the 'same offense.'"). Under the concept of "separate sovereigns," the State of Idaho is free to create its own criminal laws and exceptions pertaining to the use of marijuana. However, the State of Idaho cannot limit the federal government, as a separate sovereign, from prosecuting marijuana related conduct under its own laws.

In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 486, 121 S. Ct. 1711, 1715, 149 L. Ed. 2d 722 (2001), the United States Supreme Court described a set of circumstances that appear similar to the system proposed in the Initiative:

In November 1996, California voters enacted an initiative measure entitled the Compassionate Use Act of 1996. Attempting "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes," Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2001), the statute creates an exception to California laws prohibiting the possession and cultivation of marijuana. These prohibitions no longer apply to a patient or his primary caregiver who possesses or cultivates marijuana for the patient's medical purposes upon the recommendation or approval of a physician. Ibid. In the wake of this voter initiative, several groups organized "medical cannabis dispensaries" to meet the needs of qualified patients. [Citation omitted.] Respondent Oakland Cannabis Buyers' Cooperative is one of these groups.

A federal district court denied the Cooperative's motion to modify an injunction that was predicated on the Cooperative's continued violation of the federal Controlled Substance Act's "prohibitions on distributing, manufacturing, and possessing with the intent to distribute or manufacture a controlled substance." Id. at 487 (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.

In sum, Idaho is free to pass and enforce its own laws creating or negating criminal liability relative to marijuana. But, as the United States Supreme Court's Oakland Cannabis Buyer's Cooperative decision demonstrates, even if the initiative is enacted, persons exempted from state law criminal liability under its provisions would still be subject to criminal liability under federal law.

The same holds true in regard to federal regulations pertaining to housing and employment. In Assenberg v. Anacortes Housing Authority, 268 Fed. 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), 12210(a); 29 U.S.C. § 705(20)(C)(i).

AHA did not violate the Department of Housing and Urban Development's ("HUD") policy by automatically terminating the Plaintiffs' lease based on Assenberg's drug use without considering factors HUD listed in its September 24, 1999 memo. . ..

Because the Plaintiffs' eviction is substantiated by Assenberg's illegal drug use, we need not address his claim ... whether AHA offered a reasonable accommodation.

The district court properly dismissed Assenberg's state law claims. Washington law requires only "reasonable" accommodation. [Citation omitted.] Requiring public housing authorities to violate federal law would not be reasonable.

Similarly, the Oregon Supreme Court has held that, under Oregon's employment discrimination laws, an employer was not required to accommodate an employee's use of medical marijuana. Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 520 (Or. 2010). Therefore, the provisions 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. Chapters 97 through 99 of title 39 are currently assigned to other recently passed legislative acts: chapter 97 ("Idaho Energy Conservation Code"), chapter 98 ("Essential Caregivers"), and chapter 99 ("Down Syndrome Diagnosis Information Act"). Therefore, every reference or citation to chapter 97 (§§ 39-9700 et seq.) in the initiative should be changed to read chapter 100 (§§ 39-10000 et seq.). For example, the initiative's references and citations to section 39-9705 should be changed to read section 39-10705 throughout the initiative.

Lastly, in regard to Prop. I.C. § 39-9720 ("Confidentiality"), Idaho Code section 74-122 states that after January 1, 2016, "any statute which is added to the Idaho Code and provides for confidentiality or closure of any public record or class of public records shall be placed in this chapter." It further states that any statute that "is located at a place other than this chapter shall be null, void and of no force and effect regarding the confidentiality or closure of the public record and such public record shall be open and available to the public for inspection as provided in this chapter." Id. Because of this, proposed section 39-9720, addressing confidentiality, may not take effect if passed. It is therefore recommended that the initiative include a separate provision amending section 74-106, Idaho Code (records exempt from disclosure), with a new subsection (35), with the following or similar language:

Information and records maintained by the Department of Health and Welfare for purposes of administering chapter 97 of title 39, the Idaho Medical Marijuana Act, as provided in section 39-9720, Idaho Code.

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 Kind Idaho, 154 E. Gettysburg Street, Boise, Idaho 83706.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:

John C. McKinney
Deputy Attorney General