AG’s Opinion Fails First Test of Legal Research

One of the first things you learn in law school is the importance of making sure that any case you cite as legal precedent is still good law.  This process is called Shepardizing, because some guy named Shepard published the reference guides that allow you to determine whether the same court or a higher court had issued a later opinion questioning the validity of the earlier one.  Shepardizing once was a tedious process of checking sometimes dozens of volumes of books and pamphlets.  Today, however, it is  a one-click process on the leading legal publishers’ websites.

It appears, however, that the “professional attorneys” who prepared the Attorney General’s Opinion that has put the dispensary licensing process in limbo failed to Shepardize the Oregon Supreme Court case that was one of the two legal authorities that “compelled” their conclusion that the Arizona Medical Marijuana Act (AMMA) dispensary provisions were preempted by federal law.

Arizoneout analyzed the Oregon case in an August 10, 2012 post.  Almost a year later, the Oregon Supreme Court revisited the preemption issue in another case, Willis v. Winters.

The Willis case was filed by licensed medical marijuana users in Oregon who had been denied state concealed weapons permits by the sheriffs of two Oregon counties.  The applicants met all of the requirements of Oregon law, which required the sheriffs to issue the permits to qualified applicants.  The sheriffs denied the permits, however, claiming state law was preempted by the federal Gun Control Act of 1968, which prohibited the possession of firearms by unlawful users of controlled substances.  The sheriffs took the position that because the applicants were licensed medical marijuana users, they necessarily were illegal drug users under federal law.

The Oregon Supreme Court disagreed, finding that the sheriffs were without authority to deny the applicants the gun permits.  In doing so, the court limited the reach of its preemption analysis in the Emerald Steel case, one of the two main authorities on which the Arizona Attorney General’s Opinion is based.  The Oregon Court stated:  “Emerald Steel should not be construed as announcing a stand-alone rule that any state law that can be viewed as ‘affirmatively authorizing’ what federal law prohibits is preempted.”

The Oregon Supreme Court went on to conduct a detailed federal preemption analysis to determined that the Oregon concealed gun permit law was an obstacle to the purpose of the federal firearms statute.  Key to the Oregon court’s decision was the fact that nothing in the Oregon law prohibited federal officials from enforcing the federal law by arresting and prosecuting those who violated it, including licensed Oregon medical marijuana users.

The Oregon Supreme Court’s analysis in Willis, when applied to the provisions of the AMMA that set up the dispensary process, appear to point to a conclusion that those provisions also are not preempted.  Nothing in the AMMA prevents federal authorities from arresting and prosecuting dispensary operators.

As the Oregon court stated, “It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program.”

The Arizona Attorney General’s Opinion’s reliance on the Emerald Steel case and failure to address the subsequent Willis case is bad lawyering, pure and simple.

A Closer Look at AG’s Opinion

In an August 10, 2012 post, Arizoneout reported on the formal Attorney General’s Opinion that has put the whole dispensary licensing process  in jeopardy once again.  In the press release announcing the opinion, Arizona Attorney General Tom Horne emphasized that the opinion was “without regard to my views,” as Horne is on record opposing the Arizona Medical Marijuana Act (AMMA). 

Instead, Horne characterized the opinion as being “prepared by professional attorneys entirely on the basis of legal precedent, without regard to policy consideration.”  The press release went on to state that the
opinion was based on two recent cases that “compel[led]” Horne’s office to issue the formal opinion.

Arizoneout is a blawg, meaning that it is a blog about law.  So today and in a future post or two, Arizoneout is going to examine those cases to see just how much support they offer to the Attorney General’s opinion. 

The Oregon case, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries (BOLI), is not all that recent.  It was decided by the Oregon Supreme Court in April 2010, more than two years before Horne’s office issued the Arizona opinion. 

The Oregon Supreme Court considered a disability discrimination claim brought by a drill press operator against his employer, a steel products manufacturer.  Originally hired on a temporary basis, the employee was seeking a permanent position.  Knowing he would have to pass a drug test to gain permanent employment, he disclosed to his supervisor that he had medical marijuana registry ID card.  The employee was fired within a week of making the disclosure, and he filed a charge of disability discrimination. 

BOLI, the Oregon agency that investigates discrimination charges, found in the employee’s favor.  The employer took the case to the Oregon Supreme Court, arguing that because marijuana use and possession remains unlawful under federal law, the employee was an illegal drug user, excluded by the statutory definition of a disabled person protected by Oregon law.  The case turned on whether Oregon’s medical marijuana act was preempted by federal law to the extent that it authorized the employee to use marijuana.  If the employee’s marijuana use was authorized by state law, then he was not excluded from protection of the disability law.

Five of the seven justices on the Oregon Supreme Court sided with the employer, holding that the Oregon Medical Marijuana Act did indeed “authorize” the employee to use medical marijuana, but that federal law preempted – meaning invalidated – that state law.  Because that specific section of the medical marijuana act was invalid, the employer was free to fire the employee for his use of medical marijuana because he was an illegal drug user under federal law.  On this very narrow basis, the Oregon case does support the Arizona General’s Office opinion.

It is hard to argue, however, that the Oregon case “compelled” Attorney General Horne to issue the formal opinion.  First of all, the Oregon Supreme Court has no authority in Arizona.  Its opinion on the federal preemption question also is not binding on any federal court, including federal courts in Arizona. 

The Oregon Supreme Court also included a footnote that could have significant implications in Arizona.  In footnote 12, the court said that it was expressing no opinion on whether Oregon’s legislature could word Oregon’s disability law differently so as to require employers to reasonably accommodate disabled employees who use medical marijuana to treat their disability. 

In the AMMA the voters of Arizona have prohibited employers in this state from discriminating against Qualified Patients who use marijuana outside of work to treat debilitating medical conditions.  Oregon’s Medical Marijuana Act has no such provision. 

Whether the Oregon Supreme Court’s preemption analysis will be followed by other courts remains to be seen.  However, close examination of that case makes it appear quite a stretch to argue that the 2-year-old decision compelled the Arizona Attorney General’s office to issue its formal opinion when it did.

A Pot Policy Paradox

There was an interesting paradox in the news about the Arizona Medical Marijuana Act (AMMA) this week.  As Arizoneout reported in a June 7, 2012 post, Tuesday, August 7,  2012 was the day the Arizona Department of Health Services (ADHS) conducted a lottery to determine who would get the chance to open dispensaries in areas where there were multiple qualified applicants.

The Arizona Republic ran a piece on August 7 under the headline, "Big day for medical pot," featuring a photo of a 30-year-old Qualified Patient (QP), Scott, hanging long stems of cannabis on a line like laundry.  Scott and his girlfriend, Jody, 44, also a QP, invested $5,000 to turn a spare bedroom of their "nondescript, tan stucco home in a booming Maricopa neighborhood" into a grow-room for marijuana.

Scott and Jody smoke marijuana throughout the day to ease chronic pain caused by vehicle and other accidents.  Scott apparently is employed as an ironworker.  (Sounds safety-sensitive, donʼt you think?) He and Jody were complaining to the Republic that the opening of dispensaries would be a financial hardship to them, because then they would lose their cultivation privileges when they next renewed their QP ID cards.

Thatʼs because the AMMA was designed to restrict dispersed urban cultivation of the kind that is going on all over Phoenix, Tempe, Scottsdale, Tucson, Flagstaff, and Prescott today.  The drafters of the AMMA crafted it so that QPs who live within 25 miles of a dispensary must  buy their pot from a dispensary.  The folks who put the AMMA on the ballot thought it was better to have the cultivation and sale of marijuana tightly controlled and strictly regulated.

Governor Jan Brewer and Attorney General Tom Horne delayed the implementation of the dispensaries envisioned by the act for a year by suing on the eve of the original "go" date, and ultimately had their lawsuit dismissed.  On Monday, August 6, 2012, the eve of the dispensary lottery, Horne issued a formal "Attorney Generalʼs Opinion," declaring that the AMMA provisions authorizing dispensaries were preempted by federal law.  The other parts of the AMMA, such as those giving QPs and their caregivers the right to possess and use marijuana and making it a violation of Arizona law for employers to hold that against them, are not preempted, however, according to Horneʼs formal opinion.   

The dispensary lottery went forward as scheduled, with AG Horneʼs blessing, because having a dispensary registration certificate is not state permission to open and start selling pot.  There are other steps that have to be completed, including a state inspection, and dispensaries must have an operating certificate to open.

So now there are 68 folks who are the proud holders of dispensary certificates, thanks to the bounce of the bingo ball.  Another 29 have certificates because they were the only qualified applicants in the areas.  (Two areas have would-be dispensaries, but the issue is tied up in litigation.  Naturally.)

ADHS Director Will Humble at one point was predicting there could be dispensaries open by September.  But who knows now how long the legal wrangling will block them.  Horne ended his press release about the formal legal opinion by advising dispensary certificate holders "that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court."

So once again the stateʼs top lawyer has moved to block the full implementation of the AMMA and put the dispensaries in limbo.  And all the while, ADHS will continue to license QPs, and they will be working for you and buying from criminal drug dealers or growing their own in homes scattered across the state.  Because Horne thinks thatʼs better?