Does Oregon's Medical Marijuana Act require a person to be an Oregon resident in order to receive a registry identification card?

Plain-English summary

Oregon's medical marijuana program ran on a registry-card system. A patient who qualified under the Oregon Medical Marijuana Act (OMMA) applied for a registry identification card, and presenting that card was a defense to state marijuana-possession charges. The DHS Public Health Division asked the AG two questions about residency: whether the existing OMMA limited card eligibility to Oregon residents, and whether the legislature could add a residency requirement without running afoul of the federal constitutional right to travel.

Attorney General John Kroger answered both questions. On the first, the OMMA at the time did not contain a residency requirement, and the AG concluded the agency could not invent one administratively. On the second, the AG concluded that the legislature could constitutionally limit eligibility to Oregon residents. The right to travel under Saenz v. Roe prevents states from discriminating against new residents in benefits programs, but it does not give residents of other states a right to access an Oregon-specific public benefit program, especially one that was not nationally portable in any event because federal law treated marijuana possession as illegal regardless of state-issued cards.

The opinion was prompted by State v. Berringer, 234 Or App 665 (2010), where the Court of Appeals held that an Idaho resident with an Idaho-issued medical marijuana card had no defense to Oregon possession charges because Idaho's program did not satisfy OMMA's terms. Berringer highlighted that Oregon's OMMA card was the operative gatekeeper, which made the residency question for the issuing agency more pressing.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Oregon's marijuana regulatory regime has changed substantially since 2010 (notably with adult-use legalization in 2014 and subsequent OLCC-administered programs), so this opinion's specific applicability today is limited.

Common questions

Q: What did the AG say about the OMMA's text on residency?
A: At the time of the opinion, OMMA's eligibility provisions in ORS 475.300 to 475.346 referred to "a person" or "an individual" without limiting either term to Oregon residents. The AG applied the standard principle of statutory construction that courts give effect to the language the legislature actually used and do not add words that aren't there. So the agency could not impose a residency requirement administratively; the program was open to qualifying non-residents.

Q: How did the AG analyze the constitutional right-to-travel question?
A: The AG drew on Saenz v. Roe, 526 U.S. 489 (1999), which identifies three components of the right to travel: a right to enter and leave another state, a right to be treated as a welcome visitor, and a right of new residents to be treated like long-time residents. The AG concluded that limiting OMMA cards to Oregon residents would not infringe any of those components. A residency rule would treat all out-of-state visitors the same way; it would not discriminate against newly arrived Oregonians; and it would not prevent anyone from entering or leaving Oregon.

Q: What is the practical relationship between the OMMA card and federal law?
A: The card was a defense to Oregon-law marijuana possession charges, not a defense to federal Controlled Substances Act prosecution. The opinion noted this in passing as part of its right-to-travel analysis: a registry card was a feature of Oregon law, not a portable national entitlement, so Oregon was not blocking interstate movement by limiting it.

Q: How does State v. Berringer fit in?
A: Berringer held that an Idaho resident with an Idaho-issued medical marijuana card who was charged with possession in Oregon could not invoke OMMA's affirmative defense, because Idaho's program did not satisfy OMMA's specific procedural and substantive requirements. The case illustrated that without an Oregon-issued card, an out-of-state patient had no protection under Oregon law. That was the trigger for DHS's residency question: if an Oregon card was the key, who was eligible to apply for one?

Background and statutory framework

Oregon voters approved Ballot Measure 67 in 1998, creating the OMMA. The Act allows a person with a qualifying debilitating medical condition to apply for a registry identification card. Holders of valid cards have an affirmative defense to state-law marijuana possession charges within the Act's quantity and conduct limits. The DHS Public Health Division administered the program at the time of this opinion (the Oregon Health Authority assumed many DHS public-health responsibilities in subsequent reorganizations).

The right-to-travel doctrine on which the AG drew has its modern shape from Saenz v. Roe, which struck down a California welfare-benefit cap that would have given new residents lower benefits than long-time residents for the first 12 months. The Supreme Court framed the right to travel as comprising three distinct components, only one of which (treating new residents as long-time residents) is implicated by program-eligibility rules tied to residency. Saenz cabins that protection to actual residents, leaving room for states to design programs whose benefits run only to current residents of that state.

The AG read those rules together. The OMMA's text controlled the first question; Saenz controlled the second. Both pointed in the same direction: no current residency requirement, and no constitutional barrier to enacting one if the legislature wanted to.

Citations and references

Statutes (as cited in the opinion):
- ORS 475.300 to 475.346 (Oregon Medical Marijuana Act)
- ORS 475.302 (definitions)
- ORS 475.309 (registry identification card)

Cases:
- State v. Berringer, 234 Or App 665, 229 P3d 615 (2010)
- Saenz v. Roe, 526 U.S. 489 (1999)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2010/06/op2010-2.pdf

Original opinion text

JOHN R. KROGER

MARY H. WILLIAMS

Attorney General

Deputy Attorney General

DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
June 14, 2010

Grant Higginson, M.D., Administrator
DHS/Public Health Division
Office of Community Health & Health Planning
800 NE Oregon St., Ste. 930
Portland, OR 97323
Re:

Opinion Request OP-2010-2

Dear Doctor Higginson:
You asked two questions concerning Oregon’s Medical Marijuana Act, which were
prompted by a recent decision of the Oregon Court of Appeals, State v. Berringer, 234 Or App
665, 229 P3d 615 (2010) (April 14, 2010). Your questions concern whether the Oregon Health
Authority must issue medical marijuana registry identification cards to non-Oregon residents.
FIRST QUESTION PRESENTED
Does the Oregon Medical Marijuana Act limit the issuance of registry identification cards
to Oregon residents?
SHORT ANSWER
No. Residency is not a requirement for obtaining a registry identification card under the
Oregon Medical Marijuana Act.
SECOND QUESTION PRESENTED
Could the Oregon legislature limit eligibility for Oregon registry identification cards to
Oregon residents without violating the right to travel guaranteed by the United States
Constitution?
SHORT ANSWER
Yes.

1162 Court Street NE, Salem, OR 97301-4096
Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (800) 735-2900 www.doj.state.or.us

Grant Higginson, Administrator
June 14, 2010
Page 2

DISCUSSION
1.

Background

The Oregon Medical Marijuana Act (OMMA), ORS 475.300 to 475.346, allows a person
who possesses a registry identification card to engage (as delimited by the Act) in the medical
use of marijuana without being subjected to state criminal or civil penalties. ORS 475.306(1);
ORS 475.300(2). ORS 475.309 establishes the requirements that an applicant must fulfill to
receive a card. The Oregon Health Authority (OHA) is responsible for establishing and
maintaining a program to issue cards “to persons who meet the requirements of [ORS 475.309].”
ORS 475.309(2).
The Oregon Court of Appeals recently discussed those requirements in State v. Berringer.
Some people have informed the OHA that they interpret that opinion to require the OHA to issue
Oregon registry identification cards to non-residents. In light of that contention, you ask whether
non-residents are eligible to receive Oregon cards under OMMA, and whether it would violate
the United States Constitution to deny cards to non-residents.
2.

State v. Berringer

In State v. Berringer, the defendant, a California resident, was arrested in Oregon and
convicted under Oregon law for unlawful possession of marijuana. The defendant had a written
statement by a California licensed physician recommending defendant’s medical use of
marijuana. Under California law, that document, if authentic, would allow the defendant to
possess marijuana. 23 Or App at 668. Defendant appealed his Oregon conviction, raising two
federal constitutional challenges, only one of which is relevant.
Defendant argued that in enforcing Oregon’s criminal law against him for possessing
marijuana, the state violated his federal constitutional right to travel from state to state, because
Oregon “provides its own residents with an immunity from some possession of marijuana
prosecutions, while withholding that immunity from nonresidents.” Id.at 671. The court
observed that, although the right to travel is well established, its source in the United States
Constitution has never been definitively identified. Id. at 672. Several United States Supreme
Court cases have located the right in the Privileges and Immunities Clause of Article IV, section
2, guaranteeing the right to enjoy the “Privileges and Immunities of Citizens in the several
states.” Id. at 672. But another Supreme Court case relied on the Equal Protection Clause, and
still another case concluded that there was no need to identify the particular constitutional
provision for the right to travel interstate. Id.
While the source of the right is not completely clear, the court noted that it is clear that
access to medical treatment is among the interstate traveler’s protected rights based on two cases.
In the first case, the United States Supreme Court invalidated a state law that imposed a one-year
durational residence requirement to obtain access to publicly funded non-emergency
hospitalization and medical care. Memorial Hospital v. Maricopa County, 415 US 250, 94 S Ct
1076, 39 L Ed2d 306 (1974). In the second case, the Court invalidated a state law that imposed a

Grant Higginson, Administrator
June 14, 2010
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residence requirement to obtain an abortion. Doe v. Bolton, 410 US 179, 200, 93 S Ct 739, 35 L
Ed2d 201 (1973).
The Oregon Court of Appeals distinguished the OMMA from both of those laws,
interpreting it to impose the same requirements on residents and non-residents. The court
reached that conclusion despite “findings” in ORS 475.300 that the Act is intended to allow
“Oregonians” to make medical use of marijuana without fear of penalty:
It is true that the “findings” section of the OMMA refers to “Oregonians” with
debilitating medical conditions and states that they “should be allowed to use
small amounts of marijuana without fear of civil or criminal penalties,” ORS
475.300(2), and “discuss freely with their doctors the possible risks and benefits
of medical marijuana,” ORS 475.300(3). Those provisions are merely hortatory.
The operational provisions of the OMMA and its implementing regulations apply
with equal rigor to residents and nonresidents. Residents and nonresidents alike
must either possess or have applied for an OMMA registration card. ORS
475.309(1) (a). Both must have documentation from the attending physician,
attesting that the person has “a debilitating medical condition and that the medical
use of marijuana may mitigate the symptoms or effects” of the condition. ORS
475.309(2). Both must pay the same registration fee. Id.
234 Or App at 673.
But the court acknowledged that OMMA makes it more difficult for nonresidents to
obtain a registry card because an applicant must submit documentation from a physician licensed
under Oregon laws. Id. The court pointed out that the difficulty that this placed on non-residents
was somewhat mitigated by the fact that Oregon physician licensing laws contain reciprocity
provisions allowing nonresident physicians to obtain Oregon licenses and that under OHA rules,
a nonresident need not have a long-term relationship with an Oregon physician. Id. In any
event, the court concluded that “we have found no authority for the proposition that the difficulty
a nonresident might encounter in finding an Oregon attending physician could be considered an
impediment of constitutional magnitude.” Id.
The court then examined OAR 333-008-0020(1), which sets out the forms of
identification that the OHA will accept from an applicant:
In order for an application to be considered complete, an applicant must submit
the following:

(b) Copies of legible photographic identification * * *. The following are
acceptable forms of identification:
(A) Oregon Driver's License;

Grant Higginson, Administrator
June 14, 2010
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(B) Oregon Identification Card with photo;
(C) Voter Registration Card with photo[.]
The court stated that:
[I]f the list of documents in OAR 333-008-0020(1)(b) is exhaustive-that is, if the
documents in (A), (B), and (C) are the only acceptable photographic identification
documents-then it is easier for an Oregon resident to submit a complete
application than for a nonresident, because the resident has three options while the
nonresident has only one, and even then, only if he or she lives in a state that has a
voter registration card with photo. However, nothing in the text of OAR 333-0080020(1)(b) establishes that the list is exhaustive. The language is ambiguous, and,
in order to avoid even the possibility of constitutional infirmity, State v.
Rodriguez, 217 Or. App. 24, 34, 175 P3d 471 (2007), we interpret the list as
nonexhaustive, that is, as a list of documents that are conclusively acceptable but
not as a complete list of all photo identification cards that can be acceptable.
234 Or App at 674.
Last, the court stated that:
[E]ven if Oregon law made access to medical marijuana more difficult for
nonresidents, that would not violate defendant's right to travel. As the Supreme
Court has explained:
Some distinctions between residents and nonresidents merely
reflect the fact that this is a Nation composed of individual States,
and are permitted; other distinctions are prohibited because they
hinder the formation, the purpose, or the development of a single
Union of those States. Only with respect to those ‘privileges’ and
‘immunities’ bearing upon the vitality of the Nation as a single
entity must the State treat all citizens, resident and nonresident,
equally.. Baldwin, 436 U.S. at 383, 98 S.Ct. 1852.
Although access to publicly funded medical care, Memorial Hospital, and
abortion services, Doe, have been held to fall into the latter category, we conclude
that access to a particular form of treatment-in this case, access to a particular
drug-is not a privilege “bearing upon the vitality of the Nation as a single entity.”
Id. at 674-75. Accordingly, the court rejected the defendant’s constitutional claim.
3.

ORS 475.309

You ask whether ORS 475.309 denies nonresidents eligibility for Oregon registry
identification cards. As discussed, the court in Berringer interpreted ORS 475.309 to allow

Grant Higginson, Administrator
June 14, 2010
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nonresidents to obtain registry identification cards. Although that part of the opinion may have
been dicta, (the court ultimately concluding that access to a particular drug was not a privilege
protected by the Constitution), we agree with the interpretation. See Stephens v. Bohlman, 314
Or 344, 350, 838 P2d 600 (1992) (when the Oregon Supreme Court has construed the text of a
statute, that construction is considered part of the text of the statute itself); SAIF Corp. v. Allen,
320 Or 192, 204, 881 P2d 773 (1994) (prior Supreme Court interpretation that appears in dictum
does not have the same effect); Younger v. City of Portland, 305 Or 346, 350 n 5, 752 P2d 262
(1988) (Court of Appeals interpretations do not have the same effect as Supreme Court
interpretations).
In construing statutes, we first examine the text in context. PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-611, 859 P2d 1143 (1993). In doing so, we apply statutory and
judicial rules for reading text and context, such as not to omit what has been inserted or to insert
what has been omitted. Id., ORS 174.010. Statutory context includes other provisions of the
same statute and related statutes. PGE, 317 Or at 610. Courts also examine the legislative
history if it is useful to the analysis. State v. Gaines, 346 Or 160, 171-172, 206 P3d 1042 (2009).
If a statute remains ambiguous after examining the text, context, and legislative history, courts
will resort to relevant canons of construction, such as to assume that the legislature would have
intended the construction that would avoid potential constitutional problems. See, e.g., State v.
Stoneman, 323 Or 536, 540 n 5, 920 P2d 535 (1996).
ORS 475.309 provides, in pertinent part:
(2) The Oregon Health Authority shall establish and maintain a program for the
issuance of registry identification cards to persons who meet the requirements of
this section. Except as provided in subsection (3) of this section, the authority
shall issue a registry identification card to any person who pays a fee in the
amount established by the authority and provides the following:
(a) Valid, written documentation from the person’s attending physician stating
that the person has been diagnosed with a debilitating medical condition and that
the medical use of marijuana may mitigate the symptoms or effects of the
person’s debilitating medical condition;[1/]
(b) The name, address and date of birth of the person;
(c) The name, address and telephone number of the person’s attending physician;
(d) The name and address of the person’s designated primary caregiver, if the
person has designated a primary caregiver at the time of application; and
(e) A written statement that indicates whether the marijuana used by the
cardholder will be produced at a location where the cardholder or designated
primary caregiver is present or at another location.

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June 14, 2010
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(5)(b) In addition to the authority granted to the authority under ORS 475.316
to deny an application, [ORS 475.316 grants OHA the discretion to deny an
application for up to six months if it finds that the applicant has “willfully violated
the provisions of ORS 475.300 to 475.346, or rules adopted under ORS 475.300
to 475.346”] the authority may deny an application for the following reasons:
(A) The applicant did not provide the information required pursuant to this section
to establish the applicant’s debilitating medical condition and to document the
applicant’s consultation with an attending physician regarding the medical use of
marijuana in connection with such condition, as provided in subsection (2) and (3)
of this section;
(B) The authority determines that the information provided was falsified; or
(C) The applicant has been prohibited by a court order from obtaining a registry
identification card.
* * *.
(6)(a) If the authority has verified the information submitted pursuant to
subsections (2) and (3) of this section and none of the reasons for denial listed
in subsection (5)(b) of this section is applicable, the authority shall issue a
serially numbered registry identification card within five days of verification of
the information.
Emphasis added.
In sum, ORS 475.309 requires the OHA to issue cards to “persons” who meet its
requirements. Those requirements are paying a fee and providing the listed documents and
information. None of those documents or required information includes proof of residency. Nor
do any definitional terms contain a residency requirement. Cf RCW 69.51A.010(3) (defining a
“qualifying patient” for purposes of Washington’s medical marijuana law as, among other things,
“a resident of the state of Washington at the time of such diagnosis”).
In addition, ORS 475.309 and 475.316 specify the grounds on which the OHA may deny
an application. Lack of Oregon residency is not one of those grounds. Based on the plain text of
ORS 475.309 and 475.316, Oregon residency is not a requirement to obtain an Oregon registry
identification card and lack of residency is not a ground for denial.
But text must be read in context. Statutory statements of general policy can provide
context for particular substantive provisions. See, e.g., Havi Group, L P v. Fyock, 204 Or App
558, 131 P3d 793 (2006). As the court discussed in Berringer, ORS 475.300 states that “ORS
475.300 to 475.346 are intended to allow Oregonians” to discuss medical marijuana use with
their doctors and that “Oregonians” should be allowed to use medical marijuana without fear of

Grant Higginson, Administrator
June 14, 2010
Page 7

penalty. The Court of Appeals declared those provisions to be merely “hortatory” and to have no
substantive effect.
We agree. Although general policy statements can be useful context, they should not be
relied on as authority to insert a requirement that specific and unambiguous substantive
provisions do not contain. See Astleford v. SAIF Corp, 319 Or 225, 234, 874 P2d 1329 (1994)
(general hortatory policy statements did not overcome the statutory definition of “party” or say
anything about statutory rights); Pharma v. Oregon Depart of Human Services ex rel Office of
Medical Assistance Programs, 199 Or App 199, 208, 110 P3d 657 (2005) (statement of policy by
its terms “imposes no requirement that the agency do anything.”); Northwest Natural Gas Co. v.
PUC, 195 Or App 547, 556, 99 P3d 292 (2004) (statutory statements of policy may serve as
useful context for a statute, but courts should be cautious about reading more into them); School
Dist. No. 1 v. Teachers' Retirement, 30 Or App 747, 752, 567 P2d 1080 (1977), rev. den., 281 Or
1 (1978) (“hortatory” phrasing of statutory purpose “does not appear to mandate anything that is
justiciable”); see also ORS 174.010 (office of judge is not to insert what has been omitted); ORS
174.020 (a particular intent controls over a general intent).
Finally, the legislative history does not support interpreting the OMMA to limit card
eligibility solely to Oregon residents. The OMMA was enacted by the people through the
initiative process. Or Laws 1999, ch 4. Relevant history of an initiative petition includes the
ballot title and explanatory statement in the voters’ pamphlet. See Shilo Inn v. Multnomah
County, 333 Or 101, 129-30, 36 P3d 954 (2001), modified on recons. 334 Or 11, 45 P3d 107
(2002). Neither the ballot title nor the explanatory statement in the voters’ pamphlet declare or
imply that card eligibility is limited to Oregon residents. The ballot title makes no mention of
“Oregonians,” but simply refers to “the medical use of marijuana” generally and the explanatory
statement refers to eligible “persons,” not to eligible “Oregonians.” Official Voters’ Pamphlet,
General Election, Volume 1, Measures, November 3, 1998 at 148, 151.
4.

U.S. Constitution

You next ask, in light of Berringer, whether the Oregon legislature could limit the
eligibility to receive an Oregon registry card to Oregon residents without violating the right to
travel guaranteed by the United States Constitution. The court in Berringer did not address that
question directly, because the defendant had not applied for or been denied an Oregon registry
card on the basis that he was not an Oregon resident. The court did address the question
indirectly when responding to defendant’s claim that Oregon provided immunity for medical
marijuana use to its own residents, but not to the residents of other states. The court concluded
that nonresidents would be eligible for Oregon cards under OMMA, but it did not hold that the
U.S. Constitution required that result. Instead, it merely construed the language of the statutes
and regulations as allowing nonresidents to obtain cards.
It is true that, in interpreting OHA’s rule concerning acceptable identification, the court
applied the “avoidance canon” – a rule of statutory construction under which courts faced with
an ambiguous statute (or in this case, regulation) will assume an intent to comply with
constitutional mandates. The court applied that rule to avoid “even the possibility of
constitutional infirmity[.]” Berringer, 234 Or App at 674. But the avoidance canon is a rule of

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June 14, 2010
Page 8

statutory construction and nothing more. Its application cannot be construed as a holding that a
contrary interpretation would violate the federal constitution.
And, in the end, the court concluded that “access to a particular drug is not a privilege
‘bearing upon the vitality of the Nation as a single entity.’” Id. In other words, access to a
particular drug is not a privilege that is protected by the federal constitutional right to travel. If
there is no federal constitutional right to access to a particular drug, nonresidents have no federal
constitutional right to an Oregon registry identification card. Thus, Berringer supports the
conclusion that limiting eligibility for Oregon cards to Oregon residents would not violate the
right to travel.
Another compelling ground supports that conclusion. The federal Controlled Substances
Act prohibits possessing, manufacturing, dispensing, and distributing marijuana. 21 USC §§
841(10), 844. Those prohibitions apply even when a person possesses, manufactures, dispenses,
or distributes marijuana for a medical use. United States v. Oakland Cannabis Buyers
Cooperative, 532 US 483, 494 and n 7, 121 S Ct 1711, 149 L Ed2d 722 (2001) (declining to find
a medical necessity defense to prohibition on distributing marijuana; holding applies equally to
other prohibited acts); see also Gonzales v. Raich, 545 US 1, 14, 125 S Ct 2195, 162 L Ed2d 1
(2005) (possession of marijuana is a proper subject of federal regulation because marijuana has a
“high potential for abuse, lack of any accepted medical use, and absence of any accepted safety
for use in medically supervised treatment”). Given that possession of medical marijuana violates
federal law and that the United States Supreme Court has upheld that law, access to medical
marijuana is not a right protected by the United States Constitution. We conclude that the federal
constitutional right to travel would not be violated by denying nonresidents eligibility for Oregon
registry identification cards.
CONCLUSION
We conclude that: (1) The OMMA contains no Oregon residency requirement for
obtaining an Oregon registry identification card; and, (2) the Oregon legislature could limit
eligibility for Oregon registry identification cards to Oregon residents without violating the
federal constitutional right to travel.
Sincerely,

David E. Leith
Associate Attorney General and
Chief General Counsel
General Counsel Division
DEL:mcg/2074600
1/

ORS 475.302(1) defines “attending physician” to mean “a physician licensed under ORS
chapter 677 who has primary responsibility for the care and treatment of a person diagnosed with a
debilitating medical condition.”