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.