The Evolution of Popular Culture and the Legal Treatment of Marijuana

The Chronic 2013: The Evolution of Popular Culture and the Legal Treatment of Marijuana

November 12, 2013 Owen M. Panner Inn of Court

1906 - Pure Food and Drugs Act Requires Labeling of Medicine, Including Cannabis

Label for Piso's Cure, a cannabis-based medicine, after the passage of the 1906 Pure Food and Drug Act Source: antiquecannabisbook.com (accessed Dec. 12, 2011) "[O]n 30 June 1906 President Roosevelt signed the Food and Drugs Act, known simply as the Wiley Act... The basis of the law rested on the regulation of product labeling rather than pre-market approval."

US Food and Drug Administration (FDA) "FDA History - Part I," FDA website (accessed Dec. 28, 2011)

"An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes...

That for the purposes of this Act an article shall also be deemed to be misbranded... if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein."

Pure Food and Drug Act (1906) , National Center for Biotechnology Information website, June 30, 1906

Source: http://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026

1911 - Massachusetts Becomes First State to Outlaw Cannabis

"Bolstered by Progressive Era faith in big government, the 1910s marked a high tide of prohibitionist sentiment in America. In 1914 and 1916, alcohol prohibition initiatives would make the state ballot. Meanwhile, the legislature was tackling such morals issues as prostitution, racetrack gambling, prizefighting, liquor, and oral sex. Amidst this profusion of vices, Indian hemp [aka cannabis] was but a minor afterthought… states banned cannabis in the 1910s: Massachusetts in 1911; Maine, Wyoming and Indiana in 1913; New York City in 1914; Utah and Vermont in 1915; Colorado and Nevada in 1917. As in California, these laws were passed not due to any widespread use or concern about cannabis, but as regulatory initiatives to discourage future use."

Dale Gieringer, PhD "The Forgotten Origins of Cannabis Prohibition in California," Contemporary Drug Problems, Summer 1999

1915-1927 - 10 States Pass Marijuana Prohibition Laws

"[In 1915] Utah passes state anti-marijuana law...

Other states quickly followed suit with marijuana prohibition laws, including Wyoming (1915), Texas (1919), Iowa (1923), Nevada (1923), Oregon (1923), Washington (1923), Arkansas (1923), and Nebraska (1927)." The state of New York outlaws cannabis in 1927.

Drug WarRant.com "Why Is Marijuana Illegal?," Drug War Rant.com (accessed July 14, 2010)

1930s - American Pharmaceutical Firms Sell Extracts of Marijuana as Medicines

Parke-Davis cannabis tincture bottle Source: antiquecannabisbook.com (accessed Dec. 22, 2011) "As demand for marijuana-based medications accelerated, pharmaceutical firms attempted to produce consistently potent and reliable drugs from hemp. By the 1930s at least two American companies – Parke-Davis and Eli Lily – were selling standardized extracts of marijuana for use as an analgesic, an antispasmodic and sedative. Another manufacturer, Grimault & Company, marketed marijuana cigarettes as a remedy for asthma."

Janet Joy, PhD Alison Mack Marijuana as Medicine: Beyond the Controversy, 2001

May 4, 1937 - American Medical Association Opposes the Proposed Marihuana Tax Act and Supports Research on Medical Cannabis

"Hearings on the proposed taxation of marihuana were held before the Committee on Ways and Means between 27 April and 4 May 1937.

The last witness to be heard was Dr. William C. Woodward, legislative counsel of the American Medical Association (AMA). He announced his opposition to the bill... [and] sought to dispel any impression that

either the AMA or enlightened medical opinion sponsored this legislation. Marihuana, he argued, was largely an unknown quantity, but might have important uses in medicine and psychology."

Michael Schaller, PhD "The Federal Prohibition of Marihuana," Journal of Social History, Autumn 1970

"There is nothing in the medicinal use of Cannabis that has any relation to Cannabis addiction. I use the word 'Cannabis' in preference to the word 'marihuana', because Cannabis is the correct term for describing the plant and its products. The term 'marihuana' is a mongrel word that has crept into this country over the Mexican border and has no general meaning, except as it relates to the use of Cannabis preparations for smoking...

To say, however, as has been proposed here, that the use of the drug should be prevented by a prohibitive tax, loses sight of the fact that future investigation may show that there are substantial medical uses for Cannabis."

William C. Woodward, MD Statement to the US House of Representatives Committee on Ways and Means, May 4, 1937

Oct. 1937 - "Marihuana Tax Act" Leads to Decline in Marijuana Prescriptions

Commissioner Harry J. Anslinger inspects a drug seizure. Source: DEA exhibit "Target America: Opening Eyes to the Damage Drugs Cause," posted on drugwarrant.net (accessed Aug. 31, 2011) "Spurred by spectacular accounts of marijuana's harmful effects on its users, by the drug's alleged connection to violent crime, and by a perception that state and local efforts to bring use of the drug under control were not working, Congress enacted the Marihuana Tax Act of 1937. Promoted by Harry Anslinger, Commissioner of the recently established Federal Bureau of Narcotics, the act imposed registration and reporting requirements and a tax on the growers, sellers, and buyers of marijuana. Although the act did not prohibit marijuana outright, its effect was the same. (Because marijuana was not included in the Harrison Narcotics Act in 1914, the Marihuana Tax Act was the federal government’s first attempt to regulate marijuana.)"

Mark Eddy CRS Report for Congress: "Medical Marijuana: Review and Analysis of Federal and State Policies" Apr. 2, 2010

"By the time the federal government passed the Marihuana Tax Act in [Oct.] 1937, every state had already enacted laws criminalizing the possession and sale of marijuana. The federal law, which was structured in a fashion similar to the 1914 Harrison Act, maintained the right to use marijuana for

medicinal purposes but required physicians and pharmacists who prescribed or dispensed marijuana to register with federal authorities and pay an annual tax or license fee... After the passage of the Act, prescriptions of marijuana declined because doctors generally decided it was easier not to prescribe marijuana than to deal with the extra work imposed by the new law."

Rosalie Liccardo Pacula, PhD "State Medical Marijuana Laws: Understanding the Laws and Their Limitations," Journal of Public Health Policy, 2002

Oct. 2, 1937 - First Marijuana Seller Convicted under US Federal Law Is Arrested

Mug shot of Samuel R. Caldwell. Source: NORML.org (accessed Feb. 21, 2012) "On the day the Marijuana Tax Stamp Act was enacted -- Oct. 2, 1937 -- the FBI and Denver, Colo., police raided the Lexington Hotel and arrested Samuel R. Caldwell, 58, an unemployed labourer and Moses Baca, 26. On Oct. 5, Caldwell went into the history trivia books as the first marijuana seller convicted under U.S. federal law. His customer, Baca, was found guilty of possession...

Caldwell was sentenced to four years of hard labour in Leavenworth Penitentiary, plus a $1,000 fine. Baca received 18 months incarceration. Both men served every day of their sentence. A year after Caldwell was released from prison, he died."

National Organization for the Reform of Marijuana Laws (NORML) "The First Pot POW," norml.org (accessed Feb. 21, 2012)

1942 - Marijuana Removed from US Pharmacopeia

"Marijuana was removed from the US Pharmacopeia in 1942, thus losing its remaining mantle of therapeutic legitimacy."

American Medical Association (AMA) "Report 10 of the Council on Scientific Affairs," 1997

1951 - Boggs Act Establishes Minimum Prison Sentences for Simple Possession

"In 1951, Congress established mandatory minimum prison sentences for drug crimes. Named for its sponsor, Representative Hale Boggs (D-La.), the Boggs Act imposed two-to-five year minimum sentences for first offenses, including simple possession. The Act made no distinction between drug users and drug traffickers for purposes of sentencing.

The driving force behind the Boggs Act was a mistaken belief that drug addiction was a contagious and perhaps incurable disease and that addicts should be quarantined and forced to undergo treatment."

Families Against Mandatory Minimums Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, 2008

1956 - Inclusion of Marijuana in Narcotics Control Act Leads to Stricter Penalties for Marijuana Possession

Congress includes marijuana in the Narcotics Control Act of 1956, which results in stricter mandatory sentences for marijuana-related offenses. A first-offense marijuana possession carries a minimum sentence of 2-10 years with a fine of up to $20,000.

Frontline "Busted: America's War on Marijuana," www.pbs.org (accessed July 21, 2010)

1961 - UN Convention Provides Basis for Future Federal Prohibition of Marijuana

The 1961 UN Single Convention on Narcotic Drugs establishes the following rule in Article 49: "The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible but in any case within twenty-five years..."

"UN Single Convention on Narcotic Drugs, 1961",1961 "In 1961, the United Nations adopted the Single Convention on Narcotic Drugs, the terms of which state that each participating country could 'adopt such measures as may be necessary to prevent misuse of, and illicit traffic in, the leaves of the Cannabis plant.' Congress approved participation in the convention in 1967 and three years later passed the Comprehensive Drug Abuse Prevention and Control Act, which provides the basis for current federal prohibitions regarding marijuana use."

National Academy of Sciences "An Analysis of Marijuana Policy," 1982

1970 - Controlled Substances Act Classifies Marijuana as a Drug with "No Accepted Medical Use"

Congress passes the Controlled Substances Act (CSA) as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. This law establishes a "singles system of control for both narcotic and psychotropic drugs for the first time in US history." The CSA creates five schedules to classify substances. Marijuana is placed in Schedule I, which are drugs "classified as having a high potential for

abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision."

US Drug Enforcement Administration (DEA) "A Tradition of Excellence: The History of the DEA from 1973-2003," DEA website (accessed Aug. 9, 2010) US Drug Enforcement Administration (DEA) "Marijuana," DEA website (accessed June 17, 2011)

"The Congress asked the Department of Health, Education and Welfare for their recommendation where marijuana should be placed in the Controlled Substances Act.

The response, by letter of 8/14/70, of the Assistant Secretary for Health and Scientific Affairs [Roger O. Egeberg] is as follows:

'...Some question has been raised whether the use of the plant itself produces "severe psychological or physical dependence" as required by a schedule I or even schedule II criterion. Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marihuana be retained within schedule I at least until the completion of certain studies now underway to resolve the issue. If those studies* make it appropriate for the Attorney General to change the placement of marihuana to a different schedule, he may do so in accordance with the authority provided under section 201 of the bill..'"

Jon Gettman, PHD "Marijuana's Dependence Liability - 1970," DrugScience.org (accessed Dec. 12, 2011)

[Editor's Note: *"Those studies" were concluded in the 1972 Schafer Commission report, which recommended removing marijuana from the scheduling system and decriminalizing it. President Nixon rejected their recommendation.]

May 1, 1971 - President Nixon Says He Will Not Legalize Marijuana Even If Shafer Commission Recommends It

President Nixon had a meeting with Elvis Presley, who sought to be appointed as a Federal Agent-at- Large in the US Bureau of Narcotics and Dangerous Drugs, in 1970. Source: National Archives and Records Administration (accessed Aug. 31, 2011) In a televised news conference on May 1, 1971, responding to question about the White House Conference on Youth, which had voted to legalize marijuana, President Nixon said:

"As you know, there is a Commission that is supposed to make recommendations to me about this subject; in this instance, however, I have such strong views that I will express them. I am against legalizing marijuana. Even if the Commission does recommend that it be legalized, I will not follow that recommendation... I can see no social or moral justification whatever for legalizing marijuana. I think it would be exactly the wrong step. It would simply encourage more and more of our young people to start down the long, dismal road that leads to hard drugs and eventually self-destruction."

Richard Nixon, LLB "The President's News Conference," The American Presidency Project website, May 1, 1971

1972 - National Commission on Marijuana and Drug Abuse ("Shafer Commission") Recommends Decriminalizing Marijuana

"The bipartisan Shafer Commission [National Commission on Marijuana and Drug Abuse], appointed by President Nixon at the direction of Congress [and chaired by former Pennsylvania Governor Raymond Shafer], considered laws regarding marijuana and determined that personal use of marijuana should be decriminalized. Nixon rejected the recommendation, but over the course of the 1970s, eleven states decriminalized marijuana and most others reduced their penalties."

Frontline "Busted: America's War on Marijuana," www.pbs.org (accessed July 21, 2010) "Possession of marihuana for personal use would no longer be an offense, but marihuana possessed in public would remain contraband subject to summary seizure and forfeiture. Casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration not involving profit would no longer be an offense."

US National Commission on Marihuana and Drug Abuse "Marihuana, A Signal of Misunderstanding," druglibrary.org, 1972

Nov. 24, 1976 - Federal Court Rules Robert Randall's Use of Marijuana a "Medical Necessity"

Robert Randall Source: denverpost.com (accessed Aug. 31, 2011) "In November, 1976, a Washington, DC man [Robert Randall] afflicted by glaucoma employed the little- used Common Law Doctrine of Necessity to defend himself against criminal charges of marijuana cultivation (US v. Randall). On November 24, 1976, federal Judge James Washington ruled Randall's use of marijuana constituted a 'medical necessity...'

Judge Washington dismissed criminal charges against Randall. Concurrent with this judicial determination, federal agencies responding to a May, 1976 petition filed by Randall, began providing this patient with licit, FDA-approved access to government supplies of medical marijuana. Randall was the first American to receive marijuana for the treatment of a medical disorder."

Schaffer Online Library of Drug Policy "Significant Legal Cases," www.druglibrary.org (accessed July 15, 2010)

1978 - New Mexico Passes First State Law Recognizing Medical Value of Marijuana

"In 1978, New Mexico passed the first state law recognizing the medical value of marijuana [Controlled Substances Therapeutic Research Act]. Over the next few years, more than 30 states passed similar legislation."

Elsa Scott "Marinol: The Little Synthetic That Couldn't," High Times Magazine, July 1994

1986 - Anti-Drug Abuse Act Increases Penalties for Marijuana Possession and Dealing

President Reagan signed the Anti-Drug Abuse Act, instituting mandatory sentences for drug-related crimes. In conjunction with the Comprehensive Crime Control Act of 1984, the new law raised federal penalties for marijuana possession and dealing, basing the penalties on the amount of the drug involved. Possession of 100 marijuana plants received the same penalty as possession of 100 grams of heroin. A later amendment to the Anti-Drug Abuse Act established a "three strikes and you're out" policy, requiring life sentences for repeat drug offenders, and providing for the death penalty for "drug kingpins."

Frontline "Busted: America's War on Marijuana," www.pbs.org (accessed July 21, 2010)

1991 - Court Ruling Highlights Application of Medical Necessity Defense

In Jenks v. State of Florida (1991), the Florida First District Court of Appeals rules on the application of a medical necessity defense in response to criminal prosecution. In the case of medical marijuana, the patient must be suffering from a medically recognized disease or illness, which is causing a symptom for which there is no effective treatment other than marijuana.

Rosalie Liccardo Pacula, PhD "State Medical Marijuana Laws: Understanding the Laws and Their Limitations," Journal of Public Health Policy, 2002

Nov. 5, 1991 - First Medical Marijuana Initiative Passed in San Francisco

"The first medical marijuana initiative appeared in the city of San Francisco as Proposition P, which passed with an overwhelming 79% of the vote on Nov. 5, 1991. Proposition P called on the State of California and the California Medical Association to 'restore hemp medical preparations to the list of available medicines in California,' and not to penalize physicians 'from prescribing hemp preparations for medical purposes.'"

Richard Glen Boire, JD Kevin Feeney, JD Medical Marijuana Law, 2007

Nov. 5, 1996 - California Becomes First State to Legalize Medical Marijuana

Medical marijuana activist Chris Conrad and his wife Mikki Norris advocated for the passage of Prop. 215 Source: chrisconrad.com (accessed Dec. 28, 2011) "Voters in California [pass] a state medical marijuana initiative in 1996. Known as Proposition 215, it permits patients and their primary caregivers, with a physician' s recommendation, to possess and cultivate marijuana for the treatment of AIDS, cancer, muscular spasticity, migraines, and several other disorders; it also protects them from punishment if they recommend marijuana to their patients."

Janet Joy, PhD Alison Mack Marijuana as Medicine: Beyond the Controversy, 2001

Nov. 3, 1998 - Alaska, Oregon, and Washington Become 2nd, 3rd, and 4th States to Legalize Medical Marijuana

"Fifty-eight percent of voters [in Alaska] approved Ballot Measure #8 on November 3, 1998. The law took effect on March 4, 1999. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physician advising that they 'might benefit from the medical use of marijuana...'

Fifty-five percent of voters [in Oregon] approved Measure 67 on November 3, 1998. The law took effect on December 3, 1998. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a signed recommendation from their physician stating that marijuana "may mitigate" his or her debilitating symptoms...

Fifty-nine percent of voters [in Washington] approved Measure 692 on November 3, 1998. The law took effect on that day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess 'valid documentation" from their physician affirming that he or she suffers from a debilitating condition and that the "potential benefits of the medical use of marijuana would likely outweigh the health risks.'"

National Organization for the Reform of Marijuana Laws (NORML) "Active State Medical Marijuana Programs," norml.org (accessed Aug. 26, 2010)

Oct. 29, 2002 - Court Rules in Conant v. Walters That Gov't Cannot Revoke Physician Licenses Solely for Recommending Medical Marijuana

After California legalized medical marijuana in 1996, the US government threatened to take away the medical licenses of physicians who recommended the use of marijuana. On Oct. 29, 2002, a US Court of Appeals for the Ninth Circuit 3-0 ruling in the case Conant v. Walters prohibited "the federal government from either revoking a physician's license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government's action is solely the physician's professional 'recommendation' of the use of medical marijuana." The US Supreme Court denied an appeal, so physicians maintained the right to discuss marijuana with their patients.

Jan. 1, 2004 - California Places Limits on Medical Marijuana Possession

California's medical marijuana law is amended by Senate Bill 420. The bill requires the State Department of Health Services to "establish and maintain a voluntary program for the issuance of identification cards to qualified patients." It creates possession limits of "no more than eight ounces of dried marijuana per qualified patient" and "no more than six mature or 12 immature marijuana plants per qualified patient."

SB 420 also states that qualified patients and caregivers "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions."

United States v. Oakland Cannabis Buyers' Cooperative (2001)

In 1996 California voters passed Proposition 215, which legalized medical cannabis. The Oakland Cannabis Buyers' Cooperative was created to "provide seriously ill patients with a safe

and reliable source of medical cannabis, information and patient support" in accordance with Proposition 216.

In January 1998 the U.S. Government sued Oakland Cannabis Buyers' Cooperative for violating federal laws created as a result of Controlled Substances Act of 1970. On May 14, 2001, the United States Supreme Court ruled in United States v. Oakland Cannabis Buyers' Coop that federal anti-drug laws do not permit an exception for medical cannabis and rejected the common- law medical necessity defense to crimes enacted under the Controlled Substances Act because Congress concluded cannabis has "no currently accepted medical use" when the act was passed in 1970.

Gonzales v. Raich (2005)

Gonzales v. Raich 545 U.S. 1 (2005) was a decision in which the U.S. Supreme Court ruled (6-3) that even where persons are cultivating, possessing, or distributing medical cannabis in accordance with state-approved medical cannabis programs, such persons are violating federal marijuana laws and can therefore be prosecuted by federal authorities because the Commerce Clause of the United States Constitution permits federal authorities (pursuant to the Controlled Substances Act) to prosecute any and all offenses of federal marijuana laws. The respondents argued that because the cannabis in question had been grown, transported, and consumed entirely within the state of California, pursuant to California medical cannabis laws, their activity did not implicate interstate commerce and as such, could not be legitimately regulated by the federal government through the Commerce Clause. The Supreme Court disagreed, reasoning that cannabis grown for medical purposes is indistinguishable from illicit marijuana and that, because the intrastate medical cannabis market contributes to the interstate illicit marijuana market, the Commerce Clause applies. Even where persons are using medical cannabis in full compliance with state law, those persons can still be punished by federal authorities for violating federal law.

To combat state-approved medical cannabis legislation, the Drug Enforcement Agency (DEA) routinely targets and arrests medical cannabis patients as well as seizing medical cannabis and the business assets of growers and medical dispensaries. However, the Obama administration has indicated that this practice may potentially be curtailed.

June 6, 2005 - US Supreme Court Rules Congress May Ban Marijuana Use in Gonzalez v. Raich

"California's [1996 medical marijuana] law conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctor- prescribed marijuana from a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court. [Gonzalez v. Raich, docket no. 03-1454]

The medical marijuana users argued the Controlled Substances Act - which Congress passed using its constitutional power to regulate interstate commerce - exceeded Congress' commerce clause power. The district court ruled against the group. The Ninth Circuit Court of Appeals reversed and ruled the CSA unconstitutional... the Ninth Circuit ruled using medical marijuana did not 'substantially affect' interstate commerce and therefore could not be regulated by Congress...

In a 6-3 opinion delivered by Justice John Paul Stevens [on June 6, 2005], the Court held that the commerce clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite

state law to the contrary...

The majority argued that Congress could ban local marijuana use..."

Dec. 12, 2005 - Federal Agents Execute Widespread Raid on Medical Marijuana Dispensaries in California

DEA agents seized marijuana during the Dec. 12, 2005 raids. Source: Associated Press/Ben Margot "[On Dec. 12, 2005] [f]ederal and local law enforcement officers Monday conducted what activists called the most widespread raid on medical marijuana dispensaries anywhere in California.

Drug Enforcement Administration agents and two area police agencies raided 11 marijuana dispensaries in San Diego and two in San Marcos, questioning employees and customers and carting off documents. The agents also seized an unknown quantity of marijuana.

No arrests were made. Authorities said the investigation was aimed at determining how much marijuana was being sold and who was supplying it."

Los Angeles Times "Authorities Raid 11 Medical Pot Suppliers," latimes.com, Dec. 13, 2005

Jan. 1, 2006 - Oregon's Medical Marijuana Law Amended to Exclude Affirmative Defense for Exceeding Possession Limits

On Jan. 1, 2006, Senate Bill 1085 takes effect in Oregon as an amendment to the state's medical marijuana law. Qualified patients who possess cannabis in amounts exceeding the state guidelines of 24 ounces of usable marijuana and 24 plants (18 immature, 6 mature) will no longer retain the ability to argue an "affirmative defense" of medical necessity at trial. Patients who fail to register with the state, but who possess medical cannabis in amounts compliant with state law, still retain the ability to raise an "affirmative defense" at trial.

The law also redefines "mature plants" to include only those cannabis plants that are more than 12 inches in height and diameter, and establish a state-registry for those authorized to produce medical cannabis to qualified patients.

Aug. 25, 2008 - California Attorney General Issues State Guidelines for Medical Marijuana

Former California Attorney General Jerry Brown. Source: AP Photo, LAist.com, July 26, 2010

On Aug. 25, 2008, then-California Attorney General Jerry Brown issues guidelines for law enforcement and medical marijuana patients to clarify the state's laws.

The non-binding 11-page document states, "In light of California’s decision to remove the use and cultivation of physician recommended marijuana from the scope of the state’s drug laws, this Office recommends that state and local law enforcement officers not arrest individuals or seize marijuana under federal law when the officer determines from the facts available that the cultivation, possession, or transportation is permitted under California’s medical marijuana laws."

Feb. 25, 2009 - US Attorney General Says Raids on Medical Marijuana Clinics Will Not Continue

Protestor at DEA raid of medical marijuana dispensary in Hollywood, CA. Source: Shay Sowden, LAist.com, July 25, 2007

"Supporters of programs to provide legal marijuana to patients with painful medical conditions are celebrating Attorney General Eric Holder's statement this week [on Feb. 25, 2009] that the Drug Enforcement Administration would end its raids on state-approved marijuana dispensaries... The new policy represents a significant turnabout for the federal government. During the Bush administration, DEA agents shut down 30 to 40 marijuana dispensaries, the agency said."

Alex Johnson "DEA to Halt Medical Marijuana Raids," msnbc.com, Feb. 27, 2009

Oct. 19, 2009 - US Attorney General Announces That DOJ Will Not Prioritize Prosecution of Legal Medical Marijuana Patients

On Oct. 19, 2009 the US Department of Justice (DOJ) issued a memo, known subsequently as the Ogden memo, to "provide clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana."

In an effort to make the most efficient use of limited resources, the DOJ announced that prosecutorial priorities should not target "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." Specifically, individuals with cancer or other serious illnesses who use medical marijuana and the caregivers who provide the medical marijuana in accordance with state law should not be the focus of federal prosecution.

The memo clarified that "prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority." It is also explicitly stated that the memo "does not 'legalize' marijuana or provide a legal defense to a violation of federal law."

Apr. 1, 2010 - Washington Expands List of Medical Professionals Authorized to Recommend Medical Marijuana

Washington Governor Christine Gregoire after signing a bill (not medical marijuana-related) on Feb. 13, 2012. Source: nbcnews.com "More medical professionals will be allowed to authorize the use of medical marijuana for qualified patients under a measure signed into law by Gov. Chris Gregoire.

Gregoire signed the bill Thursday [Apr. 1, 2010] and it takes effect June 10.

It adds physician assistants, naturopaths, advanced registered nurse practitioners and others to the list of those who can officially recommend marijuana for patients under the state's medical marijuana law.

Under previous law, only physicians were allowed to write the recommendation. The medical marijuana measure is Senate Bill 5798."

Associated Press (AP) "WA Governor Allows More to OK Medical Marijuana," Seattle Times, Apr. 1, 2010

Jan. 22, 2013 - US Appeals Court Denies Medical Marijuana Reclassification Challenge

"The United States Court of Appeals for the D.C. Circuit issued a ruling today [Jan. 22, 2013] in the medical marijuana reclassification case, Americans for Safe Access v. Drug Enforcement Administration. In a 2-1 decision, the Court granted standing in the case -- the right to bring a claim against the federal government -- but denied the legal challenge on the merits, agreeing with the government's assertion that 'adequate and well-controlled studies' on the medical efficacy of marijuana do not exist."

Americans for Safe Access (ASA) "D.C. Circuit Denies Medical Marijuana Reclassification Challenge, Advocates Vow to Appeal," ASA website, Jan. 22, 2013

Aug. 29, 2013 - Justice Department Will Not Challenge State Marijuana Laws

"Today [Aug. 29, 2013], the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale...

[T]he federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws. This guidance continues that policy. For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana... [b]ased on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time."

US Department of Justice (DOJ) "Justice Department Announces Update to Marijuana Enforcement Policy," www.justice.gov, Aug. 29, 2013

18. Oregon

Ballot Measure 67 -- Approved by 55% of voters on Nov. 3, 1998 Effective: Dec. 3, 1998

Removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a signed recommendation from their physician stating that marijuana "may mitigate" his or her debilitating symptoms.

Approved Conditions: Cancer, glaucoma, positive status for HIV/AIDS, or treatment for these conditions; A medical condition or treatment for a medical condition that produces cachexia, severe pain, severe nausea, seizures, including seizures caused by epilepsy, or persistent muscle spasms, including spasms caused by multiple sclerosis. Other conditions are subject to approval by the Health Division of the Oregon Department of Human Resources.

Possession/Cultivation: A registry identification cardholder or the designated primary caregiver of the cardholder may possess up to six mature marijuana plants and 24 ounces of usable marijuana. A registry identification cardholder and the designated primary caregiver of the cardholder may possess a combined total of up to 18 marijuana seedlings. (per Oregon Revised Statutes ORS 475.300 -- ORS 475.346)

Amended: Senate Bill 1085

Effective: Jan. 1, 2006

State-qualified patients who possess cannabis in amounts exceeding the new state guidelines will no longer retain the ability to argue an "affirmative defense" of medical necessity at trial. Patients who fail to register with the state, but who possess medical cannabis in amounts compliant with state law, still retain the ability to raise an "affirmative defense" at trial.

Amended: House Bill 3052 Effective: July 21, 1999

Mandates that patients (or their caregivers) may only cultivate marijuana in one location, and requires that patients must be diagnosed by their physicians at least 12 months prior to an arrest in order to present an "affirmative defense." This bill also states that law enforcement officials who seize marijuana from a patient pending trial do not have to keep those plants alive. Last year the Oregon Board of Health approved agitation due to Alzheimer’s disease to the list of debilitating conditions qualifying for legal protection.

In August 2001, program administrators filed established temporary procedures further defining the relationship between physicians and patients. The new rule defines attending physician as "a physician who has established a physician/patient relationship with the patient;... is primarily responsible for the care and treatment of the patients;... has reviewed a patient’s medical records at the patient’s request, has conducted a thorough physical examination of the patient, has provided a treatment plan and/or follow-up care, and has documented these activities in a patient file."

Amended: SB 281 Signed by Gov. John Kitzhaber on June 6, 2013

Adds post-traumatic stress disorder (PTSD) to the list of approved conditions for medical marijuana use.

Amended: HB 3460 Signed by Gov. John Kitzhaber on Aug. 14, 2013

Creates a dispensary program by allowing the state licensing and regulation of medical marijuana facilities to transfer marijuana to registry identification cardholders or their designated primary caregivers.

Is it ethical for a lawyer to toke up in compliance with the new state marijuana laws, even though it is still illegal under federal law, even though the government is currently not enforcing the federal law in this regard?

ORS 9.220(2)(a): “An application for admission as attorney must * * * show that the applicant * * * [i]s a person of good moral character and fit to practice law.” ORS 9.220(2)(b) states that “the lack of ‘good moral character’ may be established by reference to acts or conduct that reflect moral turpitude or to acts or conduct which would cause a reasonable person to have substantial doubts about the individual’s honesty, fairness and respect for the rights of others and for the laws of the state and the nation. The conduct or acts in question should be rationally connected to the applicant’s fitness to practice law.”

Rule for Admission of Attorneys 3.10: “An applicant shall not be eligible for admission to the Bar after having been convicted of a crime, the commission of which would have led to disbarment in all the circumstances present, had the person been an Oregon attorney at the time of conviction.”

Oregon State Bar Rule of Procedure 8.1(b): Applicant for reinstatement to the Bar “must show that the applicant has good moral character and general fitness to practice law and that the resumption of the practice of law in this state by the applicant will not be detrimental to the administration of justice or the public interest.”

Oregon Rule of Professional Conduct 8.4(a)(2): “It is professional misconduct for a lawyer to * * * commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Revised Oregon Code of Judicial Conduct Rule 1-101(A)-(D):

(A) A judge shall observe high standards of conduct so that the integrity, impartiality and independence of the judiciary are preserved and shall act at all times in a manner that promotes public confidence in the judiciary and the judicial system. (B) A judge shall not commit a criminal act. (C) A judge shall not engage in conduct that reflects adversely on the judge’s character, competence, temperament or fitness to serve as a judge. (D) A judge shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

In re McDonough, 336 Or 36 (2003) (lawyer with four DUII convictions, among others, violated predecessors of ORPC 8.4(a)(2) and ORS 9.220(2)(a), because those convictions reflected adversely on the lawyer’s fitness as a lawyer, apart from honesty and trustworthiness, because lawyer knew DUII was unlawful and intentionally repeatedly violated DUII law, thus establishing disrespect for the law, lawyer engaged in a pattern of criminal conduct, and DUII risked injury to others; lawyer also “violated his duty to the public to maintain his personal integrity” and “caused potential injury to the legal profession by damaging the public’s confidence in lawyers”).

Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159 (2010) (holding that federal law trumps state medical marijuana law insofar as state law purports to authorize marijuana use).

The King County (Washington) Bar Association and Colorado Bar Association Ethics Committee have determined that lawyers can use marijuana so long as doing so does not interfere with their ability to represent their clients. KCBA Ethics Advisory Opinion on I-502 & Rules of Professional Conduct (October 2013); CBA Ethics Committee Formal Opinion No. 124 – A Lawyer’s Medical Use of Marijuana (July 2012).

What differentiates the “civil disobedience” and “states’ rights” aspects of state marijuana laws from the similar aspects of Arizona’s SB 1070, Kansas’ Second Amendment Protection Act, and late Jim Crow-era laws in the South?

Many use the “states’ rights” frame when cheering state marijuana laws. See States’ Rights to Medical Marijuana Act (HR 2592) (introduced in Congress by Barney Frank in 2001); States’ Medical Marijuana Patient Protection Act (HR 689) (introduced by Earl Blumenauer in 2013). As the Independent Voter Network has said in this regard, “States’ rights: it’s not just for conservatives anymore!” 77 P.3d 306 Page 1 336 Or. 36, 77 P.3d 306 (Cite as: 336 Or. 36, 77 P.3d 306)

practice law; despite knowledge and criminal sanctions imposed upon him, attorney repeatedly chose Supreme Court of Oregon. to drive in violation of laws prohibiting him from In re Complaint as to the CONDUCT OF Michael driving while intoxicated and while license was McDONOUGH, Accused. suspended, attorney risked serious bodily injury to others every time he chose to drive while intoxic- (OSB 00–20; SC S49503). ated, and his multiple acts of driving while intoxic- Argued and Submitted May 5, 2003. ated and while his license was suspended revealed Decided Oct. 2, 2003. pattern of criminal conduct. Code of Prof.Resp., State Bar charged attorney with violating dis- DR 1-102(A)(2). ciplinary rules based on attorney's criminal convic- [2] Attorney and Client 45 39 tions for driving under the influence of intoxicants (DUII), driving while suspended, and recklessly en- 45 Attorney and Client dangering another person. A trial panel of the Dis- 45I The Office of Attorney ciplinary Board concluded attorney was guilty of 45I(C) Discipline alleged misconduct and imposed an 18-month sus- 45k37 Grounds for Discipline pension. The Supreme Court held that: (1) attor- 45k39 k. Criminal offenses and con- ney's criminal acts reflected adversely on attorney's viction thereof. Most Cited Cases fitness to practice law; (2) attorney's criminal acts Attorney's criminal acts, including four acts of subjected attorney to discipline; (3) under prelimin- driving under the influence of intoxicants (DUII), ary determination of appropriate sanction, conduct five acts of driving while suspended, three acts of warranted suspension; (4) several aggravating reckless driving, one act of fourth-degree assault, factors existed; (5) some mitigating factors existed; and one act of recklessly endangering another per- and (6) 18-month suspension was appropriate sanc- son, reflected substantial disrespect for law and ra- tion. tionally was connected to question of attorney's fitness to practice law, and, as conduct would cause Suspension ordered. Supreme Court to deny attorney's admission if he West Headnotes were applicant to state bar, conduct subjected attorney to discipline. West's Or.Rev. Stat. Ann. § [1] Attorney and Client 45 39 9.527(1).

45 Attorney and Client [3] Attorney and Client 45 59.13(1) 45I The Office of Attorney 45I(C) Discipline 45 Attorney and Client 45k37 Grounds for Discipline 45I The Office of Attorney 45k39 k. Criminal offenses and con- 45I(C) Discipline viction thereof. Most Cited Cases 45k59.1 Punishment; Disposition Attorney's criminal acts, including four acts of 45k59.13 Suspension driving under the influence of intoxicants (DUII), 45k59.13(1) k. In general. Most five acts of driving while suspended, three acts of Cited Cases reckless driving, one act of fourth-degree assault, (Formerly 45k58) and one act of recklessly endangering another per- Under preliminary determination of appropriate son, reflected adversely on attorney's fitness to sanction, attorney's misconduct, which included

criminal convictions for four acts of driving under (Formerly 45k58) the influence of intoxicants (DUII), five acts of Though attorney provided medical evidence driving while suspended, three acts of reckless driv- that he suffered from alcoholism, mitigating factor ing, one act of fourth-degree assault, and one act of of chemical dependency was inapplicable in de- recklessly endangering another person, warranted termining appropriate sanction for attorney's mis- suspension from practice of law; attorney's inten- conduct, which included criminal convictions for tional conduct caused actual injury to one party, po- four acts of driving under the influence of intoxic- tential injury to public every time that he drove ants (DUII), five acts of driving while suspended, while intoxicated, actual injury to legal system by three acts of reckless driving, one act of fourth-de- undermining orders suspending his driving priv- gree assault, and one act of recklessly endangering ileges and by demonstrating an indifference to law, another person, since attorney's struggle with alco- and potential injury to legal profession by dam- holism did not cause all misconduct, and attorney aging public's confidence in lawyers. did not establish that he had accomplished meaningful and sustained recovery from alcohol depend- [4] Attorney and Client 45 59.5(4) ency.

45 Attorney and Client [6] Attorney and Client 45 59.5(5) 45I The Office of Attorney 45I(C) Discipline 45 Attorney and Client 45k59.1 Punishment; Disposition 45I The Office of Attorney 45k59.5 Factors Considered 45I(C) Discipline 45k59.5(4) k. Factors in aggrava- 45k59.1 Punishment; Disposition tion. Most Cited Cases 45k59.5 Factors Considered (Formerly 45k58) 45k59.5(5) k. Factors in mitigation. Several aggravating factors existed, affecting Most Cited Cases degree of sanction to be imposed against attorney (Formerly 45k58) for misconduct, including criminal convictions for In mitigation in assessing punishment for attor- four acts of driving under influence of intoxicants ney misconduct, chemical dependency, including (DUII), five acts of driving while suspended, three alcoholism, can operate as a mitigating factor when acts of reckless driving, one act of fourth-degree as- the accused attorney shows that (1) there is medical sault, and one act of recklessly endangering another evidence that such a dependency exists, (2) the de- person; attorney acted with selfish motive, engaged pendency caused the misconduct, (3) the accused in pattern of misconduct by repeatedly committing lawyer has accomplished a meaningful and sus- multiple criminal offenses, had substantial experi- tained period of recovery from such dependency, ence in the practice of law, and failed to appreciate and (4) the recovery arrested the misconduct, and seriousness of his misconduct. recurrence of the misconduct is unlikely.

[5] Attorney and Client 45 59.5(5) [7] Attorney and Client 45 53(1)

45 Attorney and Client 45 Attorney and Client 45I The Office of Attorney 45I The Office of Attorney 45I(C) Discipline 45I(C) Discipline 45k59.1 Punishment; Disposition 45k47 Proceedings 45k59.5 Factors Considered 45k53 Evidence 45k59.5(5) k. Factors in mitigation. 45k53(1) k. In general. Most Cited Most Cited Cases Cases

Although not relevant to issue whether attorney pension was appropriate sanction for attorney, had committed alleged misconduct, testimony relat- whose misconduct included criminal convictions ing to attorney's use of alcohol and his compliance for four acts of driving under the influence of intox- with alcohol treatment was relevant in attorney dis- icants (DUII), five acts of driving while suspended, ciplinary proceedings to issue of appropriate sanc- three acts of reckless driving, one act of fourth-de- tion and existence of mitigating factor of chemical gree assault, and one act of recklessly endangering dependency. another person; attorney repeatedly engaged in criminal conduct, refused to abide by sanctions im- [8] Attorney and Client 45 59.5(5) posed for criminal conduct, risked serious harm to public, acted with selfish motive, failed to appreci- 45 Attorney and Client ate seriousness of his misconduct, and aggravating 45I The Office of Attorney factors outweighed mitigating factors. 45I(C) Discipline 45k59.1 Punishment; Disposition **307 *37-A J. Michael Alexander, Salem, argued 45k59.5 Factors Considered the cause and submitted the brief for the accused. 45k59.5(5) k. Factors in mitigation. Most Cited Cases Martha M. Hicks, Assistant Disciplinary Counsel, (Formerly 45k58) Lake Oswego, filed the brief for the Oregon State Several mitigating factors existed in determin- Bar. ing appropriate sanction for attorney, whose misconduct included criminal convictions for four acts Before CARSON, Chief Justice, and GILLETTE, of driving under the influence of intoxicants DURHAM, RIGGS, De MUNIZ, and BALMER, (DUII), five acts of driving while suspended, three FN* Justices. acts of reckless driving, one act of fourth-degree assault, and one act of recklessly endangering another person; attorney had no prior disciplinary record, he FN* Kistler, J., did not participate in the introduced evidence that he had reputation for hon- consideration or decision of this case. esty in legal community, he cooperated during disciplinary proceeding, other penalties had been im- *38 PER CURIAM. posed against him in form of criminal sanctions, In this lawyer disciplinary proceeding, the Ore- and there was lengthy delay between commission gon State Bar (Bar) charged Michael L. Mc- of some criminal offenses and state bar's pursuit of Donough (the accused) with violating Code of Pro- disciplinary proceedings. fessional Responsibility Disciplinary Rule (DR) [9] Attorney and Client 45 59.13(5) 1–102(A)(2) (committing criminal act that reflects adversely upon lawyer's honesty, trustworthiness, 45 Attorney and Client or fitness to practice law) and with being subject to 45I The Office of Attorney discipline under ORS 9.527(1) (conduct justifying 45I(C) Discipline denial of admission to Bar). A trial panel of the 45k59.1 Punishment; Disposition Disciplinary Board concluded that the accused was 45k59.13 Suspension guilty of the alleged misconduct and imposed an 45k59.13(2) Definite Suspension 18–month suspension. Our review is automatic, 45k59.13(5) k. Commission of ORS 9.536(2); BR 10.1, and de novo, ORS 9.536(3) crime. Most Cited Cases ; BR 10.6. The Bar has the burden of establishing (Formerly 45k58) the alleged misconduct by clear and convincing Despite some mitigating factors, 18-month sus- **308 evidence. BR 5.2. For the reasons that fol-

low, we conclude that the accused violated DR sault in the Fourth Degree, Recklessly Endangering 1–102(A)(2) and is subject to discipline under ORS Another Person, and Reckless Driving. Wardell 9.527(1). We also conclude that an 18–month sus- suffered minor injuries from the incident. pension from the practice of law is the appropriate sanction for that misconduct. From the charges from that incident on Octo- ber, 11, 1998, together with the accused's three pri- The following facts are undisputed. In three or 1998 Driving While Suspended charges, the ac- separate incidents that occurred between 1983 and cused ultimately was convicted of two counts of 1985, the accused twice committed the crime of Driving While Suspended, one count of DUII, and Reckless Driving, a Class A misdemeanor, and one count of Recklessly Endangering Another Per- twice committed the crime of Driving Under the In- son. For those convictions, in February 1999, the fluence of Intoxicants (DUII), also a Class A mis- accused was fined and sentenced to 12 days in jail, demeanor. he was placed on probation for 24 months, and his driver license was suspended for three years. In 1994, the accused again was charged with the crime of DUII, for which he ultimately was Six months later, in August 1999, the accused convicted in 1996. The accused unsuccessfully ap- again was charged with the crime of Driving While pealed his conviction, and, in January 1998, he was Suspended, for which he was convicted in Decem- fined and sentenced to 30 days in jail (with 28 days ber 1999. For that conviction, the accused was sen- suspended), he was placed on probation for 12 tenced to 180 days in jail (with 150 days suspen- months, and his driver license was suspended for ded). one year. Nine months later, in September and early October of 1998, the accused was charged with Finally, on January 24, 2001, and on Septem- Driving While Suspended, a Class A misdemeanor, ber 5, 2001, the accused again was charged with on three separate occasions. Driving While Suspended. Both those charges subsequently were dismissed. On October 11, 1998, the accused and his then- girlfriend, Wardell, spent an evening drinking heav- In October 2001, the Bar filed a Second ily at a tavern in Salem. Although the accused knew Amended Formal Complaint, alleging that the ac- that Wardell was intoxicated, he allowed her to cused had violated DR 1–102(A)(2) and was sub- drive when they left the tavern. Wardell drove to ject to discipline under ORS 9.527(1) because he Interstate 5, and, on the freeway entrance ramp, the had committed the following criminal acts: accused and Wardell became engaged in *39 a “1. In 1983, Reckless Driving, a Class A Mis- physical struggle. The accused ultimately pulled demeanor; Wardell out of the vehicle by her hair and ordered her to get into the passenger seat of the vehicle. “2. In 1984, Driving Under the Influence of In- When Wardell refused, the accused started to drive, toxicants and Reckless Driving, Class A Misde- and Wardell jumped on the hood of the vehicle. The meanors; accused continued to drive onto the freeway and then attempted to throw Wardell off the vehicle by *40 “3. On August 19, 1985, Driving Under the hitting his brakes. After he had driven approxim- Influence of Intoxicants, a Class A Misdemeanor; ately a quarter of a mile with Wardell still clinging to the hood of the vehicle, a state police trooper “4. On December 27, 1994, Driving Under the stopped and arrested the accused. The accused re- Influence of Intoxicants, a Class A Misdemeanor; gistered a blood alcohol level of 0.14, and he was “5. On September 22, 1998, Driving While charged with Driving While Suspended, DUII, As-

Suspended, a Class A Misdemeanor; constitute a violation of DR 1–102(A)(2) or cause him to be subject to discipline under ORS 9.527(1). “6. On September 30, 1998, Driving While He also contends that, in any event, the 18–month Suspended, a Class A Misdemeanor; suspension that the trial panel imposed is an excess- ive sanction. “7. On October 6, 1998, Driving While Suspen- ded, a Class A Misdemeanor; [1] From our review of the record, we agree with the accused that the Bar has failed to establish **309 “8. On October 11, 1998, Driving While by clear and convincing evidence that the accused Suspended/Revoked, a Class A Misdemeanor; was guilty of Driving While Suspended in January “9. On October 11, 1998, Driving Under the In- and September of 2001. We accept the accused's fluence of Intoxicants, a Class A Misdemeanor; admission as to the truth of the other alleged criminal acts. On de novo review, we now must determ- “10. On October 11, 1998, Recklessly Endan- ine whether, by engaging in such criminal conduct, gering Another, a Class A Misdemeanor; the accused violated DR 1–102(A)(2) and is subject to discipline under ORS 9.527(1) and, if so, the ap- “11. On October 11, 1998, Assault IV, a Class propriate sanction for that misconduct. DR A Misdemeanor; 1–102(A)(2) provides:

“12. On October 11, 1998, Reckless Driving, a “It is professional misconduct for a lawyer to Class A Misdemeanor; * * * [c]ommit a criminal act that reflects ad- “13. August 12, 1999, a violation of probation; versely on the lawyer's honesty, trustworthiness or fitness to practice law[.]” “14. On August 12, 1999, Driving While Sus- pended, a Class A Misdemeanor; As noted, the accused here admits to committing the following Class A misdemeanors: (1) four “15. On January 24, 2001, Driving While Sus- acts of DUII, ORS 813.010; (2) five acts of Driving pended, a Class A Misdemeanor; While Suspended, ORS 811.182; (3) three acts of “16. On September 5, 2001, Driving While Reckless Driving, ORS 811.140; (4) one act of As- Suspended, a Class A Misdemeanor.” sault in the Fourth Degree, ORS 163.160; and (5) one act of Recklessly Endangering Another Person, At the disciplinary hearing in January 2002, the ORS 163.195. He also admits to a probation viola- trial panel determined that the accused had commit- tion. In light of those admissions, the focus of our ted all the alleged criminal acts and that, in doing inquiry under DR 1–102(A)(2) is whether the ac- so, had violated DR 1–102(A)(2) and was subject to cused's criminal acts reflect adversely upon his discipline under ORS 9.527(1). As noted, for that “honesty, trustworthiness or fitness to practice misconduct, the trial panel suspended the accused law[.]” from the practice of law for a period of 18 months. The Bar does not contend that the criminal acts On review, the accused admits to all the crim- at issue raise doubts as to the accused's honesty or inal conduct that the Bar alleges, except the two al- trustworthiness; rather, the Bar contends that those legations of *41 Driving While Suspended on Janu- acts reflect adversely upon the accused's fitness to ary 24, 2001, and on September 5, 2001 (acts 15 practice law. In In re White, 311 Or. 573, 589, 815 and 16 in the Bar's Second Amended Formal Com- P.2d 1257 (1991), this court explained that, for a plaint). He disputes, however, that his criminal acts criminal act to reflect adversely upon an accused

lawyer's fitness to practice law within the meaning “The Supreme Court may disbar, suspend or of *42 DR 1–102(A)(2), a rational connection must reprimand a member of the bar whenever, upon exist between the criminal conduct and the accused proper proceedings for that purpose, it appears to lawyer's fitness to practice law aside from the fact the court that * * * [t]he member has committed of the criminality of the act alone. The court in an act or carried on a course of conduct of such White identified a number of factors that this court nature that, if the member were applying for ad- considers in making that determination, including: mission to the bar, the application should be denied[.]” “the lawyer's mental state; the extent to which the act demonstrates disrespect for the law or law en- *43 ORS 9.220 provides, in part: forcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; “An applicant for admission as attorney must * and the **310 presence or absence of a pattern of * * show that the applicant * * * [i]s a person of criminal conduct.” good moral character and fit to practice law. * * * For purposes of this section[,] * * * the lack of Id. ‘good moral character’ may be established by reference to acts or conduct that reflect moral Applying those factors here, we agree with the turpitude or to acts or conduct which would cause Bar that the accused's criminal acts reflect ad- a reasonable person to have substantial doubts versely upon his fitness to practice law. The ac- about the individual's honesty, fairness and re- cused knew that the law prohibited him from driv- spect for the rights of others and for the laws of ing while he was intoxicated and while his license the state and the nation. The conduct or acts in was suspended; however, despite that knowledge question should be rationally connected to the ap- and despite criminal sanctions that he had received plicant's fitness to practice law.” for such conduct, the accused nevertheless repeatedly chose to drive in violation of those laws. As discussed above, the accused's criminal Based upon those facts, we conclude that the ac- conduct, particularly his refusal to abide by sanc- cused's repeated criminal offenses were intentional tions imposed for that conduct, reflects a substantial and demonstrated a substantial disrespect for the disrespect for the law and rationally is connected to law. See In re Lawrence, 332 Or. 502, 510, 31 P.3d the question of his fitness to practice law. Because 1078 (2001) (when accused lawyer knew of duty to such conduct would cause us to deny the accused's file tax returns timely, his repeated failure to do so admission if he were an applicant to the Bar, we was intentional and reflected disrespect for law). In conclude that the accused also is subject to discip- addition, every time that he chose to drive while in- line under ORS 9.527(1). See In re Rowell, 305 Or. toxicated, the accused risked serious bodily injury 584, 586–88, 754 P.2d 905 (1988) (applicant's to others, and, on October 11, 1998, he in fact criminal activity demonstrated lack of requisite caused bodily injury to Wardell. Finally, the ac- moral character for admission to Bar at time of con- FN1 cused's multiple acts of driving while intoxicated duct). and while his license was suspended reveal a pattern of criminal conduct. The accused is guilty of FN1. Although we conclude that the ac- violating DR 1–102(A)(2). cused is subject to discipline under ORS 9.527(1), that finding does not enhance the [2] The Bar also alleges that, by committing sanction for the accused's misconduct in the above criminal acts, the accused is subject to light of our determination that the ac- discipline under this court's authority set out in cused's conduct also constituted a violation ORS 9.527(1), which provides: of DR 1–102(A)(2). See In re Kimmell,

332 Or. 480, 487, 31 P.3d 414 (2001) from the practice of law. ABA Standard 5.12. (noting that this court's finding that same conduct violated both Code of Professional [4] We next consider the existence of any ag- Responsibility and provision of ORS gravating or mitigating circumstances that may af- chapter 9 generally has not served to en- fect the degree of the sanction to be imposed. ABA hance sanction). Standard 3.0. In this proceeding, we find several aggravating factors. When he drove after his driver Having concluded that the accused is guilty of license had been suspended, the accused acted with violating DR 1–102(A)(2) and is subject to discip- a selfish motive, that is, to serve his own personal line under ORS 9.527(1), we now must determine convenience. ABA Standard 9.22(b). The accused the appropriate sanction. In doing so, we follow this also engaged in a pattern of misconduct by re- court's well-established methodology by referring peatedly committing multiple criminal offenses. to the American Bar Association's Standards for ABA Standard 9.22(c). In addition, the accused has Imposing Lawyer Sanctions (1991) (amended 1992) substantial experience in the practice of law, having (ABA Standards) and to this court's case law for been admitted to the Bar in 1976. ABA Standard guidance. See, e.g., In re Kimmell, 332 Or. 480, 9.22(i). Finally, we agree with the trial panel that 487–88, 31 P.3d 414 (2001) (describing methodo- the accused has failed to appreciate the seriousness logy). of his misconduct. ABA Standard 9.22(g).

[3] *44 Under the ABA Standards, we first [5][6][7] In mitigation, we first note that chem- make a preliminary determination of the appropri- ical dependency, including alcoholism, can operate ate sanction by considering the duty that the ac- as a mitigating factor when the accused lawyer cused violated, the accused's mental state, and the shows that (1) there is medical evidence that such a injury that the accused's**311 misconduct caused. dependency exists; (2) the dependency *45 caused ABA Standard 3.0. In this case, the accused viol- the misconduct; (3) the accused lawyer has accom- ated his duty to the public to maintain his personal plished a meaningful and sustained period of recov- integrity when he engaged in repeated acts of un- ery from such dependency; and (4) the recovery ar- lawful conduct. ABA Standard 5.1; see Kimmell, rested the misconduct, and recurrence of the mis- 332 Or. at 488, 31 P.3d 414 (accused lawyer viol- conduct is unlikely. ABA Standard 9.32(i) ated duty to maintain personal integrity by enga- (amended 1992); see In re Murdock, 328 Or. 18, ging in illegal conduct). As previously noted, the 29–30, 968 P.2d 1270 (1998) (discussing those accused's conduct here was intentional, and he factors). In this proceeding, we determine that the caused actual injury to Wardell on October 11, accused has provided medical evidence that he suf- 1998, and potential injury to the public every time fers from alcoholism. However, because a number that he drove while intoxicated. Moreover, when he of the accused's criminal acts involved no use of al- repeatedly chose to drive after his driver license cohol at all, we cannot say that the accused's was suspended for his crimes of driving while in- struggle with alcoholism caused all his misconduct. toxicated, the accused caused actual injury to the In addition, although the accused declares that he legal system by undermining the orders that had now recognizes the need for treatment of his alco- suspended his driving privileges and by demon- holism, the accused has not established that he has strating an indifference to the law. The accused's accomplished a meaningful and sustained recovery criminal offenses also caused potential injury to the from his alcohol dependency. We therefore con- legal profession by damaging the public's confid- clude that the mitigating factor of chemical depend- FN2 ence in lawyers. The preliminary sanction under the ency is inapplicable to this proceeding. ABA Standards for such conduct is a suspension FN2. On review, the accused argues that

the trial panel erred by admitting the testi- 18–month suspension that the trial panel imposed is mony of a number of witnesses whose the appropriate sanction. testimony related to the accused's use of alcohol and his compliance with alcohol [9] In considering the appropriate sanction for treatment because, according to the ac- disciplinary violations involving criminal conduct, cused, that testimony was not relevant to this court previously has observed that any issue in the disciplinary proceeding. “[p]roceedings for the discipline of an attorney See BR 5.1(a) (trial panel should exclude are not to punish the attorney for the commission irrelevant evidence in disciplinary hear- of a crime. That matter is left to the criminal ing). We disagree. Although that testimony courts. The objects of the proceedings here are to was not relevant to the issue whether the uphold the dignity and respect of the profession, accused had committed the alleged mis- protect the courts, preserve the administration of conduct, that evidence was relevant to the justice and protect clients.” issue of the appropriate sanction and, particularly, the existence of the mitigating In re Carstens, 297 Or. 155, 166, 683 P.2d 992 factor of chemical dependency. The trial (1984); see also Kimmell, 332 Or. at 488, 31 P.3d panel did not err by admitting that evid- 414 (same). ence. To protect the public and to uphold the respect [8] We find the existence of several other mit- of the legal profession, this court's case law demon- igating factors. The accused has no prior disciplin- strates that disbarment or a lengthy suspension gen- ary record, ABA Standard 9.32(a), and he intro- erally is appropriate when a lawyer intentionally duced evidence that he has a reputation for honesty has committed criminal acts in violation of DR in the legal community, ABA Standard 9.32(g). The 1–102(A)(2). See, e.g., In re Davenport, 334 Or. accused also cooperated during the disciplinary 298, 49 P.3d 91, modified and adh'd to on recons., proceeding, ABA Standard 9.32(e), and other pen- 335 Or. 67, 57 P.3d 897 (2002) (accused lawyer alties have been imposed against the accused in the suspended for two years for false statements under form of criminal sanctions, ABA Standard 9.32(k). oath in violation of DR 1–102(A)(2), among other In addition, in determining the appropriate sanction violations); In re Albrecht, 333 Or. 520, 42 P.3d for the accused's misconduct, we place diminished 887 (2002) (accused lawyer disbarred for participa- weight upon the accused's criminal acts that oc- tion in criminal money laundering scheme in viola- curred in 1983, 1984, and 1985, because of the tion of DR 1–102(A)(2), among other violations); lengthy **312 delay between the time that the ac- In re Gustafson, 333 Or. 468, 41 P.3d 1063 (2002) cused committed those criminal offenses and the (accused lawyer disbarred for false testimony under Bar's pursuit of disciplinary proceedings. See ABA oath and violating juvenile expungement order in Standard 9.32(j) (amended 1992) (delay in discip- violation of DR 1–102(A)(2), among other viola- linary proceedings is mitigating factor). tions); In re Kirkman, 313 Or. 181, 830 P.2d 206 (1992) (accused lawyer disbarred for forgery, false *46 We now turn to a consideration of the ap- declaration, and bigamy in violation of DR propriate sanction in light of this court's case law. 1–102(A)(2) and DR 1–102(A)(3)). The accused argues that this court should craft a sanction to address the accused's alcohol depend- In Kimmell, 332 Or. 480, 31 P.3d 414, this ency by imposing a period of probation with the court imposed a six-month suspension upon an ac- condition that the accused participate in alcohol cused lawyer who had committed a single act of treatment. The Bar disagrees and contends that the second-degree theft. In imposing that *47 sanction,

the court stated that it considered theft, even theft when his driver license was suspended. In addition, that did not involve a violation of a fiduciary duty, as noted, we agree with the trial panel that the ac- to be a serious act of misconduct that demonstrated cused has failed to appreciate the seriousness of his a disrespect for the law. Id. at 491, 31 P.3d 414. misconduct. The court further noted that, in that case, the accused lawyer had acted intentionally and that mul- Although a number of mitigating factors also tiple aggravating factors, but only one mitigating apply in this proceeding, we find that the above lis- factor, applied. Id. at 488–90, 31 P.3d 414. ted aggravating *48 factors outweigh those mitigating factors. The accused's repeated criminal acts In In re Allen, 326 Or. 107, 949 P.2d 710 persuade us that the accused presently lacks good (1997), this court imposed a one-year suspension moral character and fitness to practice law. We upon an accused lawyer who had committed crim- agree with the trial panel that the appropriate sanc- inal acts of attempted possession of a controlled tion is a suspension from the practice of law for a substance and aiding and abetting another in the period of 18 months. commission of a crime. In doing so, the court emphasized that it was convinced that the accused The accused is suspended from the practice of lawyer's misconduct was an aberration that was in- law for a period of 18 months, effective 60 days consistent with the accused lawyer's general good from the filing of this decision. character and that similar misconduct was unlikely Or.,2003. to reoccur. Id. at 130, 949 P.2d 710. The court also In re Conduct of McDonough stressed that, in that case, the mitigating factors 336 Or. 36, 77 P.3d 306 substantially outweighed the aggravating factors. Id. Nevertheless, in light of the seriousness of his END OF DOCUMENT criminal conduct and, particularly, the fact that the accused lawyer's misconduct had contributed to the death of another person, the court concluded that a lengthy suspension was warranted. Id. at 130–31, 949 P.2d 710.

Unlike the accused lawyers either in Kimmell or in Allen, the accused here engaged in criminal conduct time and time again. The accused's repeated criminal acts and, particularly, his refusal to abide by sanctions imposed for his criminal conduct, reflect a substantial disrespect for the law. In addition, although his misconduct here did not cul- minate in such serious consequences to others as did the accused lawyer's misconduct in Allen, the accused's conduct on October 11, **313 1998, risked serious bodily harm to Wardell, and, every time that he chose to drive while intoxicated, the accused risked serious harm to the public. Unlike the accused lawyer in Allen, the accused also acted with a selfish motive, that is, to avoid his own personal inconvenience, when he repeatedly drove

Walters, J., dissented and filed opinion, in which Durham, J., joined. Supreme Court of Oregon. En Banc. West Headnotes EMERALD STEEL FABRICATORS, INC., Peti- tioner on Review, [1] Civil Rights 78 1712 v. 78 Civil Rights BUREAU OF LABOR AND INDUSTRIES, Re- 78V State and Local Remedies spondent on Review. 78k1705 State or Local Administrative (BOLI 3004; CA A130422; SC S056265). Agencies and Proceedings Argued and Submitted March 6, 2009. 78k1712 k. Judicial review and enforce- Decided April 15, 2010. ment of administrative decisions. Most Cited Cases Employer, seeking review of decision of Bur- Background: Employer sought review of decision eau of Labor and Industries (BOLI), concluding of Bureau of Labor and Industries (BOLI), conclud- that employer engaged in disability discrimination ing that employer engaged in disability discrimina- when it discharged employee for medical marijuana tion when it discharged employee due to employ- use, preserved for judicial review claim that state ee's medical marijuana use. The Court of Appeals, law did not require accommodation of employee's 220 Or.App. 423, 186 P.3d 300, affirmed. Employ- medical marijuana use because marijuana posses- er filed petition for review. sion is unlawful under federal law; employer argued before agency that Oregon discrimination law Holdings: The Supreme Court, Kistler, J., held was to be construed consistently with the Federal that: Americans with Disabilities Act (ADA), and that (1] employer preserved for review claim that state the ADA did not permit the use of marijuana be- law did not require accommodation of employee's cause marijuana was an illegal drug under federal medical marijuana use because marijuana posses- law, employer's further developing argument would sion is unlawful under federal law; have been futile in light of controlling precedent, (2] employee currently engaged in the illegal use of and ALJ chose to reopen record to address employ- drugs is not entitled to reasonable accommodation; er's federal law preemption arguments following (3] provision of Oregon Medical Marijuana Act af- United States Supreme Court's opinion in Gonzales firmatively authorizing the use of medical v. Raich. Americans with Disabilities Act of 1990, marijuana was preempted by Federal Controlled § 2 et seq., 42 U.S.C.A. § 12101 et seq.; West's Substances Act, which explicitly prohibited Or.Rev. Stat. Ann. § 659A.112. marijuana use without regard to medicinal purpose; and [2] Civil Rights 78 1712 (4] exclusion from the definition of “illegal use of drugs” for the “use of a drug taken under supervi- 78 Civil Rights sion of a licensed health care professional” refers to 78V State and Local Remedies those medical and research uses that the Controlled 78k1705 State or Local Administrative Substances Act authorizes. Agencies and Proceedings 78k1712 k. Judicial review and enforce- Reversed. ment of administrative decisions. Most Cited Cases Employer, conceding in disability discrimina-

tion proceedings before the Bureau of Labor and [5] States 360 18.11 Industries (BOLI) that controlling Court of Appeals precedent foreclosed its affirmative defenses, did 360 States not limit itself, for purposes of issue preservation, 360I Political Status and Relations to the defenses asserted by the losing party in the 360I(B) Federal Supremacy; Preemption prior case; employer reasonably acknowledged that 360k18.11 k. Congressional intent. Most the reasoning in the prior case controlled the related Cited Cases but separate defenses that it was raising, and em- The purpose of Congress is the ultimate touch- ployer did not say that it was advancing the same stone in every pre-emption case. issues asserted in the prior case. [6] States 360 18.11 [3] Civil Rights 78 1226 360 States 78 Civil Rights 360I Political Status and Relations 78II Employment Practices 360I(B) Federal Supremacy; Preemption 78k1215 Discrimination by Reason of Handi- 360k18.11 k. Congressional intent. Most cap, Disability, or Illness Cited Cases 78k1226 k. Alcohol or drug use. Most Congress may indicate a pre-emptive intent Cited Cases through a statute's express language or through its Employee currently engaged in the illegal use structure and purpose. of drugs is not entitled to reasonable accommoda- [7] States 360 18.5 tion. West's Or.Rev. Stat. Ann. §§ 659A.112, 659A.124. 360 States 360I Political Status and Relations [4] Controlled Substances 96H 3 360I(B) Federal Supremacy; Preemption 96H Controlled Substances 360k18.5 k. Conflicting or conforming 96HI In General laws or regulations. Most Cited Cases 96Hk1 Nature and Power to Regulate States 360 18.7 96Hk3 k. Preemption. Most Cited Cases 360 States States 360 18.65 360I Political Status and Relations 360 States 360I(B) Federal Supremacy; Preemption 360I Political Status and Relations 360k18.7 k. Occupation of field. Most 360I(B) Federal Supremacy; Preemption Cited Cases 360k18.65 k. Product safety; food and Pre-emptive intent may be inferred if the scope drug laws. Most Cited Cases of the statute indicates that Congress intended fed- To the extent that provision of Oregon Medical eral law to occupy the legislative field, or if there is Marijuana Act affirmatively authorized the use of an actual conflict between state and federal law. medical marijuana, such provision was preempted [8] States 360 18.13 by Federal Controlled Substances Act, which explicitly prohibited marijuana use without regard to 360 States medicinal purpose. Controlled Substances Act, §§ 360I Political Status and Relations 202(c), 401(a)(1), 21 U.S.C.A. §§ 812(c), 841(a)(1) 360I(B) Federal Supremacy; Preemption ; West's Or.Rev. Stat. Ann. § 475.306(1). 360k18.13 k. State police power. Most

Cited Cases 78 Civil Rights When addressing questions of express or im- 78I Rights Protected and Discrimination Prohib- plied pre-emption, courts begin their analysis with ited in General the assumption that the historic police powers of 78k1016 Handicap, Disability, or Illness the States are not to be superseded by the federal 78k1022 k. Alcohol or drug use. Most act unless that was the clear and manifest purpose Cited Cases of Congress. Disability discrimination law's exclusion from the definition of “illegal use of drugs” for the “use [9] Controlled Substances 96H 5 of a drug taken under supervision of a licensed health care professional” refers to those medical 96H Controlled Substances and research uses that the Controlled Substances 96HI In General Act authorizes. Controlled Substances Act, § 101 et 96Hk4 Statutes and Other Regulations seq., 21 U.S.C.A. § 801 et seq.; West's Or.Rev. 96Hk5 k. In general. Most Cited Cases Stat. Ann. § 659A.122(2). Central objectives of the Federal Controlled Substances Act were to conquer drug abuse and to West Codenotes control the legitimate and illegitimate traffic in con- PreemptedWest's Or.Rev. Stat. Ann. § 475.306(1) trolled substances; congress was particularly con- FN* cerned with the need to prevent the diversion of **519 On review from the Court of Appeals. drugs from legitimate to illicit channels. Controlled Substances Act, § 101 et seq., 21 U.S.C.A. § 801 et FN* Appeal from Revised Order on Re- seq. consideration dated July 13, 2006, of the Bureau of Labor and Industries. 220 [10] States 360 4.16(3) Or.App. 423, 186 P.3d 300 (2008).

360 States Terence J. Hammons, of Hammons & Mills, Eu- 360I Political Status and Relations gene, argued the cause and filed the brief for peti- 360I(A) In General tioner on review. 360k4.16 Powers of United States and In- fringement on State Powers Janet A. Metcalf, Assistant Attorney General, 360k4.16(3) k. Surrender of state sov- Salem, argued the cause and filed the brief for re- ereignty and coercion of state. Most Cited Cases spondent on review. With her on the brief were John R. Kroger, Attorney General, and Erika L. States 360 18.3 Hadlock, Acting Solicitor General.

360 States Paula A. Barran, of Barran Liebman LLP, Portland, 360I Political Status and Relations filed the brief for amicus curiae Associated Oregon 360I(B) Federal Supremacy; Preemption Industries. 360k18.3 k. Preemption in general. Most Cited Cases James N. Westwood, of Stoel Rives LLP, Portland, Congress lacks the authority to compel a state filed the brief for amici curiae Pacific Legal Found- to criminalize conduct, no matter how explicitly it ation and National Federation of Independent Busi- directs a state to do so; when, however, a state af- ness. With him on the brief was Deborah J. La firmatively authorizes conduct, Congress has the Fetra. authority to preempt that law. KISTLER, J. [11] Civil Rights 78 1022

*161 The Oregon Medical Marijuana Act au- those drugs proved effective for an extended period thorizes persons holding a registry identification of time, and some had negative effects. In 1996, card to use marijuana for medical purposes. ORS *162 employee began using marijuana to self- 475.306(1). It also exempts those persons from medicate his condition. state criminal liability for **520 manufacturing, de- livering, and possessing marijuana, provided that In April 2002, employee consulted with a phys- certain conditions are met. ORS 475.309(1). The ician for the purpose of obtaining a registry identi- Federal Controlled Substances Act, 21 U.S.C. § 801 fication card under the Oregon Medical Marijuana et seq., prohibits the manufacture, distribution, dis- Act. The physician signed a statement that employ- pensation, and possession of marijuana even when ee has a “debilitating medical condition” and that state law authorizes its use to treat medical condi- “[m]arijuana may mitigate the symptoms or effects tions. Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct. of this patient's condition.” The statement added, 2195, 162 L.Ed.2d 1 (2005); see United States v. however, “This is not a prescription for the use of Oakland Cannabis Buyers' Cooperative, 532 U.S. medical marijuana.” The statement that employee's 483, 486, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) physician signed tracks the terms of the Oregon (holding that there is no medical necessity excep- Medical Marijuana Act. That act directs the state to tion to the federal prohibition against manufactur- issue registry identification cards to persons when a ing and distributing marijuana). physician states that “the person has been diagnosed with a debilitating medical condition and The question that this case poses is how those that the medical use of marijuana may mitigate the state and federal laws intersect in the context of an symptoms or effects” of that condition. ORS FN1 employment discrimination claim; specifically, em- 475.309(2). No prescription is required as a ployer argues that, because marijuana possession is prerequisite for obtaining a registry identification unlawful under federal law, even when used for card. See id. medical purposes, state law does not require an employer to accommodate an employee's use of FN1. The 2001 version of the applicable marijuana to treat a disabling medical condition. statutes was in effect at the time of the The Court of Appeals declined to reach that ques- events that gave rise to this proceeding. tion, reasoning that employer had not preserved it. Since 2001, the legislature has amended Emerald Steel Fabricators, Inc. v. BOLI, 220 those statutes but not in ways that affect Or.App. 423, 186 P.3d 300 (2008). We allowed em- our decision, and we have cited to the 2009 ployer's petition for review and hold initially that version of the statutes. employer preserved the question that it sought to Based on the physician's statement, employee raise in the Court of Appeals. We also hold that, obtained a registry identification card in June 2002, under Oregon's employment discrimination laws, FN2 which he renewed in 2003. That card author- employer was not required to accommodate em- ized employee to “engage in * * * the medical use ployee's use of medical marijuana. Accordingly, we of marijuana” subject to certain restrictions. ORS reverse the Court of Appeals decision. 475.306(1). Possession of the card also exempted Since 1992, employee has experienced anxiety, him from state criminal prosecution for the posses- panic attacks, nausea, vomiting, and severe stomach sion, distribution, and manufacture of marijuana, cramps, all of which have substantially limited his provided that he met certain conditions. ORS ability to eat. Between January 1996 and November 475.309(1). 2001, employee used a variety of prescription drugs FN2. ORS 475.309(7)(a)(C) requires a per- in an attempt to alleviate that condition. None of son possessing a registry identification

card to submit annually “[u]pdated written ployer had failed to reasonably accommodate em- documentation from the cardholder's at- ployee's disability in violation of ORS tending physician of the person's debilitat- 659A.112(2)(e) and (f). Employer filed an answer ing medical condition and that the medical and raised seven affirmative defenses. use of marijuana may mitigate the symptoms or effects” of that condition. If the After hearing the parties' evidence, an adminis- person fails to do so, the card “shall be trative law judge (ALJ) issued a proposed order in deemed expired.” ORS 475.309(7)(b). which he found that employee was a disabled person within the meaning of ORS chapter 659A but Employer manufactures steel products. In Janu- that employer had not discharged employee because ary 2003, employer hired employee on a temporary of his disability. The ALJ found instead that em- basis as a drill press operator. While working for ployer had discharged employee because he used employer, employee used medical marijuana one to marijuana and ruled that discharging employee for three times per day, although not at work. Employ- that reason did not violate ORS 659A.112(2)(c) or ee's work was satisfactory, and employer was con- (g). The ALJ went on to rule, however, that em- sidering hiring him on a permanent basis. **521 ployer had violated ORS 659A.112(2)(e) and (f), Knowing *163 that he would have to pass a drug which prohibit an employer from failing to reason- test as a condition of permanent employment, em- ably accommodate the “known physical or mental ployee told his supervisor that he had a registry limitations of an otherwise qualified disabled per- identification card and that he used marijuana for a son,” and from denying employment opportunities medical problem; he also showed his supervisor to an otherwise *164 qualified disabled person documentation from his physician. In response to a when the denial is based on the failure “to make question from his supervisor, employee said that he reasonable accommodation to the physical or men- had tried other medications but that marijuana was tal impairments of the employee.” the most effective way to treat his condition. Neither employee's supervisor nor anyone else in Among other things, the ALJ ruled that em- management engaged in any other discussion with ployer's failure to engage in a “meaningful interact- employee regarding alternative treatments for his ive process” with employee, standing alone, viol- condition. One week later, the supervisor dis- ated the obligation set out in ORS 659A.112(2)(e) charged employee. and (f) to reasonably accommodate employee's disability. The ALJ also found that employee had Two months later, employee filed a complaint suffered damages as a result of those violations, with the Bureau of Labor and Industries (BOLI), al- and the commissioner of BOLI issued a final order leging that employer had discriminated against him that adopted the ALJ's findings in that regard. in violation of ORS 659A.112. That statute prohibits discrimination against an otherwise qualified [1] Employer sought review of the commis- person because of a disability and requires, among sioner's order in the Court of Appeals. As we un- other things, that employers “make reasonable ac- derstand employer's argument in the Court of Ap- commodation” for a person's disability unless doing peals, it ran as follows: Oregon law requires that so would impose an undue hardship on the employ- ORS 659A.112 be interpreted consistently with the er. ORS 659A.112(2)(e). Having investigated em- federal Americans with Disabilities Act (ADA), 42 ployee's complaint, BOLI filed formal charges USC § 12101 et seq. Section 12114(a) of the ADA against employer, alleging that employer had dis- provides that the protections of the ADA do not ap- charged employee because of his disability in viola- ply to persons who are currently engaged in the il- tion of ORS 659A.112(2)(c) and (g) and that em- legal use of drugs, and the federal Controlled Sub- stances Act prohibits the possession of marijuana

without regard to whether it is used for medicinal ADA. Although employer could have been more purposes. It follows, employer reasoned, that the specific, its fifth affirmative defense is sufficient to ADA does not apply to persons who are currently raise the statutory issue that it sought to argue in FN3 engaged in the use of medical marijuana. Like the the Court of Appeals. ADA, ORS 659A.124 provides that the protections of ORS 659A.112 do not apply to persons who are FN3. BOLI points to nothing in its rules currently engaged in the illegal use of drugs. Em- that suggests that more specificity was re- ployer reasoned that, if ORS 659A.112 is inter- quired. Cf. OAR 839–050–0130 (providing preted consistently with the ADA, then ORS only that affirmative defenses must be 659A.112 also does not apply to persons who are raised or waived). currently engaged in medical marijuana use. Em- Ordinarily, we would expect that employer ployer added that, in any event, the United States would have developed the legal arguments in sup- Supreme Court's opinion in Raich and the Suprem- port of its fifth affirmative defense more fully at the acy Clause required that interpretation. agency hearing. However, the Court of Appeals is- The Court of Appeals did not reach the merits sued its decision in Washburn v. Columbia Forest of employer's argument. It concluded that employer Products, Inc., 197 Or.App. 104, 104 P.3d 609 had not presented that argument to the agency and (2005), two weeks before the hearing in this case, thus had not preserved it. Accordingly, we begin and employer concluded that the reasoning in with the question whether employer preserved the Washburn foreclosed its fifth affirmative defense. issues**522 before BOLI that it sought to raise in The Court of Appeals held in Washburn that an em- the Court of Appeals. ployer's failure to accommodate an employee's use of medical marijuana violated ORS 659A.112. In Employer raised seven affirmative defenses in reaching that holding, the Court of Appeals decided response to BOLI's complaint. The fifth affirmative two propositions that bore on the validity of em- defense alleged: ployer's fifth affirmative defense. First, it reasoned that the requirement in ORS 659A.139 to interpret *165 “Oregon law prescribes that ORS ORS 659A.112 consistently with the ADA does not 659A.112 be construed to the extent possible in a require absolute symmetry between state and feder- manner that is consistent with any similar provi- al law. Id. at 109–10, 104 P.3d 609. Second, it held sions of the Federal Americans with Disabilities that, as a matter of state law, the employee's medic- Act of 1990, as amended. That Act does not per- al use of marijuana was “not unlawful” for the pur- mit the use of marijuana because marijuana is an poses of a federal statute that prohibits the use of il- illegal drug under Federal Law.” legal drugs in the workplace. Id. at 114–15, 104 P.3d 609. The court noted that the question That affirmative defense is broad enough to en- “[w]hether medical use of marijuana is unlawful compass the argument that employer made in the under federal law is an open question” *166 and Court of Appeals. To be sure, employer's fifth af- that the United States Supreme Court had granted firmative defense does not refer specifically to ORS the government's petition for certiorari in Raich to 659A.124. However, it alleges that the ADA does decide that question. Id. at 115 n. 8, 104 P.3d 609. not apply to persons who use marijuana, a proposition that necessarily depends on both 42 USC § At the hearing in this case, employer told the 12114(a), the federal counterpart to ORS 659A.124, ALJ that five of its affirmative defenses (including and the Controlled Substances Act. And the fifth af- the fifth affirmative defense) were “foreclosed by firmative defense also states that ORS 659A.112 the Washburn decision” but that it was “not with- should be construed in the same manner as the drawing them.” Employer did not explain the basis

for that position. We note, however, that the Court marijuana for medicinal purposes” and that “[t]he of Appeals' conclusion in Washburn that ORS impact of this decision is that *167 [employer] 659A.139 does not require absolute symmetry should prevail on its Fourth and Fifth Affirmative between the state and federal antidiscrimination Defenses.” statutes and its conclusion that medical marijuana use is “not unlawful” under state law effectively BOLI responded that the ALJ should not re- foreclosed reliance on ORS 659A.139 and ORS open the record. It reasoned that Raich did not in- 659A.124 as a basis for employer's fifth affirmative validate Oregon's medical marijuana law and that, defense. There would be little point in arguing be- in any event, employer could have raised a preemp- fore the ALJ that employee was currently engaged tion argument before the Court issued its decision in the illegal use of drugs if, as the Court of Ap- in Raich. Employer replied that, as it read Raich, peals had just stated in Washburn, the use of medic- the “Supreme Court has ruled that legalization of FN4 al marijuana is not illegal. The ALJ issued a marijuana is preempted by federal law. This obvi- proposed order in which it ruled that the Court of ously invalidates the Oregon Medical Marijuana Appeals decision in Washburn controlled, among Act.” Employer also explained that it had raised other things, employer's fifth affirmative defense. this issue in its fourth and fifth affirmative defenses, which “recite[d] that marijuana is an illegal FN4. To be sure, the Court of Appeals re- drug under federal law, and that state law deferred served the question in Washburn whether to federal law.” After considering the parties' argu- the use of medical marijuana is unlawful ments, the ALJ allowed employer's motion to re- under federal law, but that did not detain it open the record, stating that “[t]he forum will con- from holding that the employer in that case sider the Supreme Court's ruling in Raich to the ex- had an obligation under ORS 659A.112 to tent that it is relevant to [employer's] case.” Later, accommodate the employee's use of medic- the Commissioner ruled that the Controlled Sub- al marijuana. Given Washburn's holding, stances Act, which was at issue in Raich, did not employer reasonably conceded its con- preempt the Oregon Medical Marijuana Act. trolling effect until, as noted below, the Supreme Court issued its decision in As we read the record, employer took the posi- Raich. tion before the agency that, like the protections of the federal ADA, the protections of ORS 659A.112 **523 After the ALJ filed his proposed order, do not apply to a person engaged in the use of illeg- the United States Supreme Court issued its decision al drugs, a phrase that, as a result of controlling in Raich and held that Congress had acted within its federal law, includes the use of medical marijuana. authority under the Commerce Clause in prohibit- We conclude that employer's arguments were suffi- ing the possession, manufacture, and distribution of cient to preserve the issue that it sought to raise on marijuana even when state law authorizes its use judicial review in the Court of Appeals. To be sure, for medical purposes. 545 U.S. at 33, 125 S.Ct. employer's fifth affirmative defense, as pleaded, 2195. Raich addressed the question that the Court turned solely on a question of statutory interpreta- of Appeals had described in Washburn as tion. Employer did not raise the preemption issue or open—whether using marijuana, even for medical argue that federal law required a particular reading purposes, is unlawful under federal law. Employer of Oregon's statutes until employer asked the ALJ filed a supplemental exception based on Raich and to reopen the record to consider Raich. Perhaps the alternatively a request to reopen the record to con- ALJ could have declined to reopen the record. sider Raich. Employer argued that, as a result of However, once the ALJ chose to reopen the record Raich, “states may not authorize the use of and the Commissioner chose to address employer's

preemption arguments based on Raich, then em- The Court of Appeals also concluded that employer's federal preemption arguments were also ployer had not preserved its argument regarding the FN5 properly before the agency. preemptive effect of the Controlled Substances Act, as interpreted in Raich. Emerald Steel, 220 Or.App. FN5. After the Commissioner issued his fi- at 437–38, 186 P.3d 300. It noted that, on judicial nal order in this case, this court reversed review, employer argued that federal law required the Court of Appeals decision in Washburn its interpretation of Oregon's antidiscrimination . Washburn v. Columbia Forest Products, statutes while it had argued before the agency that Inc., 340 Or. 469, 480, 134 P.3d 161 federal law preempted the Oregon Medical (2006). This court held that the employee Marijuana Act. Id. We read the record differently. in Washburn was not a disabled person As explained above, employer made both argu- FN6 within the meaning of ORS chapter 659A. ments before the agency. Id. at 479, 134 P.3d 161. Given that holding, this court did not reach the other is- FN6. As noted, employer moved to reopen sues that the Court of Appeals had ad- the record on the ground that, as a result of dressed in Washburn. After this court's de- Raich, “states may not authorize the use of cision in Washburn, the commissioner marijuana for medicinal purposes” and that withdrew the final order and issued a re- “[t]he impact of this decision is that vised order on reconsideration, adhering to [employer] should prevail on its Fourth his earlier resolution of employer's affirm- and Fifth Affirmative Defenses.” Employer ative defenses in this case. thus told the agency that the Controlled Substances Act, as interpreted in Raich, 168 As noted, the Court of Appeals reached a compelled its interpretation of Oregon's different conclusion regarding preservation, and we antidiscrimination statutes. Additionally, in address its reasoning briefly. The Court of Appeals response to BOLI's arguments, employer reasoned that, in telling the ALJ that Washburn contended that the Controlled Substances foreclosed its affirmative defenses, employer adop- Act preempted the Oregon Medical ted the specific defenses that the employer in Wash- Marijuana Act. burn had asserted and that employer was now limited to those defenses. 220 Or.App. at 437, 186 *169 Having concluded that employer pre- P.3d 300. The difficulty, the Court of Appeals ex- served the issues it sought to raise on judicial re- FN7 plained, was that the statutory issues that employer view, we turn to the merits of those issues. Em- had raised in its affirmative defenses and sought to ployer's statutory argument begins with ORS raise on judicial review differed from the issues that 659A.124(1), which provides that “the protections the employer had raised in Washburn. Id. of ORS 659A.112 do not apply to any * * * employee who is currently engaging in the illegal use In our view, the Court of Appeals misperceived of drugs if the employer takes action based on that FN8 the import of what employer told the ALJ. Employ- conduct.” It follows, employer reasons, that it er reasonably acknowledged that the reasoning in had no obligation under ORS 659A.112(2)(e) and Washburn controlled the related but separate de- (f) to reasonably accommodate employee's medical fenses that it was **524 raising in this case. Em- marijuana use. In responding to that argument on ployer did not say that it was advancing the same the merits, BOLI does not dispute that employee issues that the employer had asserted in Washburn, was currently engaged in the use of medical and the Court of Appeals erred in holding other- marijuana, nor does it dispute that employer dis- wise. charged employee for that reason. Rather, BOLI ad-

vances two arguments why ORS 659A.124 does not precisely the opposite conclusion. The commission- support employer's position. er explained that engaging in a “meaningful interactive process” is the “mandatory first step in the FN7. We note that both California and process of reasonable accommodation” that ORS Washington have considered whether their 659A.112(2)(e) and (f) require. However, ORS state medical marijuana laws give medical 659A.124 provides that “the protections of ORS marijuana users either a claim under Cali- 659A.112 do not apply” to an employee who is cur- fornia's fair employment law or an implied rently engaged in the illegal use of drugs, if the em- right of action under Washington law ployer *170 takes an adverse action based on that against an employer that discharges or re- use. Under the plain terms of ORS 659A.124, if fuses to hire a person for off-work medical medical marijuana use is an illegal use of drugs marijuana use. See Roe v. TeleTech Cus- within the meaning of ORS 659A.124, then ORS tomer Care Management, 152 Wash.App. 659A.124 excused employer from whatever obliga- 388, 216 P.3d 1055 (2009); Ross v. Ra- tion it would have had under ORS 659A.112 to en- gingWire Telecommunications, Inc., 42 gage in a “meaningful interactive process” or other- Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d wise accommodate employee's use of medical 200 (2008). Both the California and Wash- marijuana. ington courts have held that, in enacting their states' medical marijuana laws, the BOLI advances a second, alternative argument. voters did not intend to affect an employ- It argues that “employee's use of medical marijuana er's ability to take adverse employment ac- was entirely legal under **525 state law” and thus tions based on the use of medical not an “illegal use of drugs” within the meaning of marijuana. Roe, 216 P.3d at 1058–61; ORS 659A.124. BOLI recognizes, as it must, that Ross, 70 Cal.Rptr.3d 382, 174 P.3d at 204. the federal Controlled Substances Act prohibits Accordingly, in both Washington and Cali- possession of marijuana even when used for medic- fornia, employers do not have to accom- al purposes. BOLI's argument rests on the assump- modate their employees' off-site medical tion that the phrase “illegal use of drugs” in ORS marijuana use. We reach the same conclu- 659A.124 does not include uses that are legal under sion, although our analysis differs because state law even though those same uses are illegal as Oregon has chosen to write its laws differ- a matter of federal law. BOLI never identifies the ently. basis for that assumption; however, a state statute defines the phrase “illegal use of drugs,” as used in FN8. ORS 659A.124 lists exceptions to ORS 659A.124, and we turn to that statute for guid- that rule, none of which applies here. See ance in resolving BOLI's second argument. ORS 659A.124(2) (recognizing exceptions for persons who either are participating in ORS 659A.122 provides, in part: or have successfully completed a supervised drug rehabilitation program and are “As used in this section and ORS 659A.124, no longer engaging in the illegal use of 659A.127 and 659A.130: drugs). “***** [3] As we understand BOLI's first argument, it “(2) ‘Illegal use of drugs' means any use of contends that, because the commissioner found that drugs, the possession or distribution of which is employer had violated ORS 659A.112(2)(e) and (f) unlawful under state law or under the federal by failing to engage in a “meaningful interactive Controlled Substances Act, 21 U.S.C.A. 812, as process,” ORS 659A.124 is inapposite. We reach

amended, but does not include the use of a drug the exclusions from the “illegal use of drugs” in FN11 taken under supervision of a licensed health care ORS 659A.122(2). professional, or other uses authorized under the Controlled Substances Act or under other provi- FN10. The ballot title for the Oregon Med- FN9 sions of state or federal law.” ical Marijuana Act confirms that interpretation of the act. See State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009) FN9. Before 2009, former ORS 659A.100 (looking to legislative history to confirm (4) (2001) defined the phrase “illegal use text). The caption, “yes” vote result state- of drugs.” In 2009, the legislature re- ment, and summary of the ballot title fo- numbered that definition as ORS cused on the fact that the measure, if en- 659A.122(2). acted, would allow permit-holders to use medical marijuana and referred to the ex- The definition of “illegal use of drugs” divides emption from criminal laws only at the end into two parts. The first part defines the drugs that of the summary. Official Voters' Pamphlet, are included within the definition—all drugs whose Nov 3, 1998, 148. The caption stated that use or possession is unlawful under state or federal the measure “[a]llows medical use of law. Marijuana clearly falls within the *171 first marijuana within limits; establishes permit part of the definition. The second part of the defini- system.” The “yes” vote result statement tion excludes certain uses of what would otherwise was to the same effect, and the summary be an illegal use of a drug. Two exclusions are po- stated that current law prohibits the posses- tentially applicable here: (1) the exclusion for “uses sion and manufacture of marijuana but that authorized under * * * other provisions of state * * the measure “allows engaging in, assisting * law” and (2) the exclusion for “the use of a drug in, medical use of marijuana.” Id. Only at taken under supervision of a licensed health care the end of the summary did the ballot title professional.” We consider each exclusion in turn. add that the measure “excepts permit hold- We begin with the question whether employer or applicant from marijuana criminal ee's use of medical marijuana is a “us[e] authorized statutes.” Id. under * * * other provisions of state * * * law.” We FN11. The Oregon Medical Marijuana Act conclude that, as a matter of statutory interpreta- also exempts medical marijuana use from tion, it is an authorized use. The Oregon Medical state criminal liability. See ORS Marijuana Act affirmatively authorizes the use of 475.309(1) (excepting persons holding re- medical marijuana, in addition to exempting its use gistry identification cards from certain from state criminal liability. Specifically, ORS state criminal prohibitions); ORS 475.319 475.306(1) provides that “[a] person who possesses (creating an affirmative defense to certain a registry identification card * * * may engage in * criminal prohibitions for persons who do * * the medical use of marijuana” subject to certain not hold registry identification cards but restrictions. ORS 475.302(10), in turn, defines a re- who have complied with the conditions ne- gistry identification card as “a document * * * that cessary to obtain one). Because ORS identifies a person authorized to engage in the med- 659A.122(2) excludes from the definition ical use of marijuana.” Reading those two subsec- of illegal use of drugs only those uses au- tions together, we conclude that ORS 475.306(1) thorized by state law, the provisions of the affirmatively authorizes the use of marijuana for FN10 Oregon Medical Marijuana Act that are medical purposes and, as a statutory matter, relevant here are those provisions that af- brings the use of medical marijuana within one of

firmatively authorize the use of medical “Our inquiry into the scope of a statute's pre- marijuana, as opposed to those provisions emptive effect is guided by the rule that ‘ “[t]he that exempt its use from criminal liability. purpose of Congress is the ultimate touchstone” in every pre-emption case.’ Medtronic, Inc. v. **526 172 Employer argues, however, that the Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 Supremacy Clause of the United States Constitution L.Ed.2d 700 (1996) (quoting Retail Clerks v. requires that we interpret Oregon's statutes consist- Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 ently with the federal Controlled Substances Act. L.Ed.2d 179 (1963)). Congress may indicate a We understand employer's point to be that, to the pre-emptive intent through a statute's express lan- extent that ORS 475.306(1) affirmatively author- guage or through its structure and purpose. See izes the use of medical marijuana, federal law pree- Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 mpts that subsection and that, without any effective S.Ct. 1305, 51 L.Ed.2d 604 (1977). * * * Pre- state law authorizing the use of medical marijuana, emptive intent may also be inferred if the scope employee's use of that drug was an “illegal use of FN12 of the statute indicates that Congress intended drugs” within the meaning of ORS 659A.124. federal law to occupy the legislative field, or if We turn to that question and begin by setting out there is an actual conflict between state and *173 the general principles that govern preemption. We federal law. Freightliner Corp. v. Myrick, 514 then discuss the federal Controlled Substances Act U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 and finally turn to whether the Controlled Sub- (1995). stances Act preempts the Oregon Medical Marijuana Act to the extent that state law affirmat- “When addressing questions of express or im- ively authorizes the use of medical marijuana. plied pre-emption, we begin our analysis ‘with the assumption that the historic police powers of FN12. The only issue that employer's pree- the States [are] not to be superseded by the Fed- mption argument raises is whether federal eral Act unless that was the clear and manifest law preempts ORS 475.306(1) to the extent purpose of Congress.’ Rice v. Santa Fe Elevator that it authorizes the use of medical Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 marijuana. In holding that federal law does L.Ed. 1447 (1947).” preempt that subsection, we do not hold that federal law preempts the other sec- Altria Group, Inc. v. Good, ––– U.S. ––––, tions of the Oregon Medical Marijuana Act ––––, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008). that exempt medical marijuana use from criminal liability. We also express no opin- [9] With those principles in mind, we turn to ion on the question whether the legislature, the Controlled Substances Act. The central object- if it chose to do so and worded Oregon's ives of that act “were to conquer drug abuse and to disability law differently, could require control the legitimate and illegitimate traffic in con- employers to reasonably accommodate dis- trolled substances. Congress was particularly con- abled employees who use medical cerned with the need to prevent the diversion of marijuana to treat their disability. Rather, drugs from legitimate to illicit channels.” Raich, our opinion arises from and is limited to 545 U.S. at 12–13, 125 S.Ct. 2195 (footnotes omit- the laws that the Oregon legislature has en- ted). To accomplish those objectives, Congress cre- acted. ated a comprehensive, closed regulatory regime that criminalizes the unauthorized manufacture, distri- [5][6][7][8] The United States Supreme Court bution, dispensation, and possession of controlled recently summarized the general principles govern- substances classified in five schedules. Id. at 13, ing preemption: 125 S.Ct. 2195.

The Court has explained that: Congress has classified marijuana as a Sched- ule I drug, 21 U.S.C. § 812(c), and federal law pro- “Schedule I drugs are categorized as such be- hibits its manufacture, distribution, and possession, cause of their high potential for abuse, lack of 21 U.S.C. § 841(a)(1). Categorizing marijuana as a any accepted medical use, and absence of any ac- Schedule I drug reflects Congress's conclusion that cepted safety for use in medically supervised marijuana “lack[s] any accepted medical use, and treatment. [21 U.S.C.] § 812(b)(1). These three [that there is an] absence of any accepted safety for factors, in varying gradations, are also used to use in medically supervised treatment.” Raich, 545 categorize drugs in the other four schedules. For U.S. at 14, 125 S.Ct. 2195 (citing 21 U.S.C. § example, Schedule II substances also have a high 812(b)(1)). Consistently with that classification, the potential for abuse which may lead to severe psy- Court has concluded that the Controlled Substances chological**527 or physical dependence, but un- Act does not contain a “medical necessity” excep- like Schedule I drugs, they have a currently action that permits the manufacture, distribution, or cepted medical use. [21 U.S.C.] § 812(b).” possession of marijuana for medical treatment. Oakland Cannabis Buyers' Cooperative, 532 U.S. Id. at 14, 125 S.Ct. 2195. Consistent with Con- FN14 at 494 and n. 7, 121 S.Ct. 1711. Despite ef- gress's determination that the controlled substances forts to reclassify marijuana, it has remained a listed in Schedule II through V have currently ac- Schedule I drug since the enactment of the Con- cepted medical uses, the Controlled Substances Act trolled Substances Act. See Raich, 545 U.S. at authorizes physicians to prescribe those substances 14–15 and n. 23, 125 S.Ct. 2195 (summarizing for medical use, provided that they do so within the “considerable efforts,” ultimately unsuccessful, to bounds of professional practice. See United States reschedule marijuana). v. Moore, 423 U.S. 122, 142–43, 96 S.Ct. 335, 46 FN13 L.Ed.2d 333 (1975). By contrast, *174 be- FN14. The specific question in Oakland cause Schedule I controlled substances lack any ac- Cannabis Buyers' Cooperative was wheth- cepted medical use, federal law prohibits all use of er there was a medical necessity exception those drugs “with the sole exception being use of for manufacturing and distributing [Schedule I] drug[s] as part of a Food and Drug Ad- marijuana. The Court explained, however, ministration preapproved research project.” Raich, that, “[l]est there be any confusion, we cla- 545 U.S. at 14, 125 S.Ct. 2195; see 21 U.S.C. § rify that nothing in our analysis, or the 823(f) (recognizing that exception for the use of statute, suggests that a distinction should Schedule I drugs). be drawn between the prohibitions on manufacturing and distributing and the other FN13. Two subsections of the Controlled prohibitions in the Controlled Substances Substances Act accomplish that result. Act.” 532 U.S. at 494 n. 7, 121 S.Ct. 1711. Section 823(f) directs the Attorney General to register physicians and other practition- Section 903 of the Controlled Substances Act ers to dispense controlled substances listed addresses the relationship between that act and state in Schedule II through V. 21 U.S.C. § law. It provides: 823(f). Section 822(b) authorizes persons registered with the Attorney General to “No provision of this subchapter shall be con- dispense controlled substances “to the ex- strued as indicating an intent on the part of the tent authorized by their registration and in Congress to occupy the field in which that provi- conformity with the other provisions of sion operates, including criminal penalties, to the this subchapter.” 21 U.S.C. § 822(b). exclusion of any State law on the same *175 subject matter which would otherwise be within the

authority of the State, unless there is a positive issue, and the Court used an implied pree- conflict between that provision of this subchapter mption analysis in Wyeth without any dis- and that State law so that the two cannot consist- cussion. 129 S.Ct. at 1196–1200. Given ently stand together.” Wyeth, we follow a similar course here.

21 U.S.C. § 903. Under the terms of section The Court has applied the physical impossibil- 903, states are free to pass laws “on the same sub- ity prong narrowly. Wyeth, 129 S.Ct. at 1199 (so ject matter” as the Controlled Substances Act un- stating); id. at 1209 (Thomas, J., concurring in the FN16 less there is a “positive conflict” between state and judgment). For example, in *176Barnett Bank federal law “so that the two cannot consistently v. Nelson, 517 U.S. 25, 116 S.Ct. 1103, 134 stand together.” L.Ed.2d 237 (1996), the question was whether “a federal statute that permits national banks to sell in- When faced with a comparable preemption pro- surance in small towns pre-empts a state statute that vision, the Court recently engaged in an implied forbids them to do so.” Id. at 27, 116 S.Ct. 1103. preemption analysis to determine whether a federal Although the two statutes were logically inconsist- statute preempted state law. Wyeth v. Levine, ––– ent, the Court held that it was not physically im- U.S. ––––, ––––, 129 S.Ct. 1187, 1196–1200, 173 FN15 possible to comply with both. Id. at 31, 116 S.Ct. L.Ed.2d 51 (2009). That is, the Court asked 1103. A national bank could simply refrain from whether **528 there is an “actual conflict” between selling insurance. See Wyeth, 129 S.Ct. at 1209 state and federal law. An actual conflict will exist (Thomas, J., concurring in the judgment) either when it is physically impossible to comply (explaining physical impossibility test). with both state and federal law or when state law “ ‘stands as an obstacle to the accomplishment and FN16. Justice Thomas noted that the Court execution of the full purposes and objectives of had used different formulations to explain Congress.’ ” Freightliner Corp., 514 U.S. at 287, when it would be physically impossible to 115 S.Ct. 1483 (quoting Hines v. Davidowitz, 312 comply with both state and federal laws U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). and questioned whether the Court had applied that standard too strictly. Wyeth, 129 FN15. The provision at issue in Wyeth S.Ct. at 1208–09 (opinion concurring in provided that the federal statute did not the judgment). In his view, the physical preempt state law unless there was a impossibility test is too narrow, and asking “direct and positive” conflict between state whether state law stands as an obstacle to and federal law. Wyeth, 129 S.Ct. at 1196. the purposes of the federal law too At first blush, one might think that the amorphous. He would have asked whether Court would have looked to the standard the state and federal law are in direct con- that Congress had expressly flict. Id.; see Caleb Nelson, Preemption, provided—whether there is a “direct and 86 Va. L. Rev. 225, 260–61 (2000) positive conflict” between the state and (reasoning that historically and practically federal laws—to determine the extent to preemption reduces to a “logical contradic- which federal law preempts state law. See tion” test). Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 Under that reasoning, it is not physically im- (1992) (holding that the preemptive effect possible to comply with both the Oregon Medical of a federal act is “governed entirely” by Marijuana Act and the federal Controlled Sub- an express preemption provision). Implied stances Act. To be sure, the two laws are logically preemption, however, addresses a similar inconsistent; state law authorizes what federal law

prohibits. However, a person can comply with both thority **529 to act as the exclusive bargaining laws by refraining from any use of marijuana, in agent for all producers of a particular commodity. much the same way that a national bank could com- Id. at 466, 104 S.Ct. 2518. When the state board ply with state and federal law in Barnett Bank by gave a producer's association that authority, all pro- simply refraining from selling insurance. ducers of a commodity had to adhere to the terms of the contracts that the association negotiated with Because the “physical impossibility” prong of food processors, even when the producer had de- implied preemption is “vanishingly narrow,” Caleb clined to join the association. Id. at 467–68, 104 Nelson, Preemption, 86 Va. L. Rev. 225, 228 S.Ct. 2518. (2000), the Court's decisions typically have turned on the second prong of implied preemption analys- In considering whether federal law preempted is—whether state law “stands as an obstacle to the the Michigan law, the Court held initially that it accomplishment and execution of the full purposes was physically possible to comply with both state and objectives of Congress.” See Hines, 312 U.S. at and federal law. The Court reasoned that, because 67, 61 S.Ct. 399 (stating test). In Barnett Bank, for the “Michigan Act is cast in permissive rather than example, the Court stated, as a self-evident proposi- mandatory terms—an association may, but need tion, that a state law that prohibited national banks not, act as exclusive bargaining representat- from selling insurance when federal law permitted ive—this is not a case in which it is [physically] them to do so would stand as an obstacle to the full impossible for an individual to comply with both accomplishment of Congress's purpose, but it then state and federal law.” Id. at 478 n. 21, 104 S.Ct. added “unless, of course, that federal purpose is to 2518 (emphasis in original). The Court went on to grant [national] bank[s] only a very limited permis- conclude, however, that “because the Michigan Act sion, that is, permission to sell insurance to the ex- authorizes producers' associations to engage in content that state law also grants permission to do so.” duct that the federal Act forbids, it ‘stands as an Barnett Bank, 517 U.S. at 31, 116 S.Ct. 1103 obstacle to the accomplishment and execution of (emphasis in original). Having considered the text the full purposes and objectives of Congress.’ ” Id. and history of the federal statute and finding no at 478, 104 S.Ct. 2518 (quoting Hines, 312 U.S. at basis for implying such a limited permission, the 67, 61 S.Ct. 399). Court held that the state statute was preempted. Id. at 35–37, 116 S.Ct. 1103. The preemption issue in this case is similar to the issue in Michigan Canners and Barnett Bank. In *177 The Court has reached the same conclu- this case, ORS 475.306(1) affirmatively authorizes sion when, as in this case, state law permits what the use of medical marijuana. The Controlled Sub- federal law prohibits. Michigan Canners & Freez- stances Act, however, prohibits the use of ers Association v. Agricultural Marketing and Bar- marijuana without regard to whether it is used for gaining Bd., 467 U.S. 461, 104 S.Ct. 2518, 81 medicinal purposes. As the Supreme Court has re- L.Ed.2d 399 (1984). In Michigan Canners, federal cognized, by classifying marijuana as a Schedule I law prohibited food producers' associations from drug, Congress has expressed its judgment that interfering with an individual food producer's de- marijuana has no recognized medical use. See cision whether to bring that individual's products to Raich, 545 U.S. at 14, 125 S.Ct. 2195. Congress did the market on his or her own or to sell them through not intend to enact a limited prohibition on the use the association. Id. at 464–65, 104 S.Ct. 2518. of *178 marijuana— i.e., to prohibit the use of Michigan law on this issue generally tracked feder- marijuana unless states chose to authorize its use al law; however, Michigan law permitted food pro- for medical purposes. Cf. Barnett Bank, 517 U.S. at ducers' associations to apply to a state board for au- 31–35, 116 S.Ct. 1103 (reaching a similar conclu-

sion regarding the scope of the national bank act). *179 The commissioner reached a different Rather, Congress imposed a blanket federal prohib- conclusion regarding preemption, as would the dis- ition on the use of marijuana without regard to state senting opinion. We address the commissioner's permission to use marijuana for medical purposes. reasoning before turning to the dissent. The com- Oakland Cannabis Buyers' Cooperative, 532 U.S. missioner, for his part, adopted the reasoning from at 494 & n. 7, 121 S.Ct. 1711. an informal Attorney General opinion, dated June 17, 2005, **530 which concluded that the Con- Affirmatively authorizing a use that federal law trolled Substances Act does not invalidate the Ore- prohibits stands as an obstacle to the implementa- gon Medical Marijuana Act. Letter of Advice dated tion and execution of the full purposes and object- June 17, 2005, to Susan M. Allan, Public Health ives of the Controlled Substances Act. Michigan Direction, Department of Human Services. In Canners, 467 U.S. at 478, 104 S.Ct. 2518. To be reaching that conclusion, the Attorney General fo- sure, state law does not prevent the federal govern- cused on those parts of the Oregon Medical ment from enforcing its marijuana laws against Marijuana Act that either exempt medical medical marijuana users in Oregon if the federal marijuana users from state criminal liability or government chooses to do so. But the state law at provide an affirmative defense to criminal charges. FN17 issue in Michigan Canners did not prevent the fed- Id. at 2. In concluding that those exemptions eral government from seeking injunctive and other from state criminal liability were valid, the Attor- relief to enforce the federal prohibition in that case. ney General relied on a line of federal cases hold- Rather, state law stood as an obstacle to the en- ing that “Congress cannot compel the States to enforcement of federal law in Michigan Canners be- act or enforce a federal regulatory program.” See cause state law affirmatively authorized the very Printz v. United States, 521 U.S. 898, 935, 117 conduct that federal law prohibited, as it does in S.Ct. 2365, 138 L.Ed.2d 914 (1997) (so stating); this case. New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (stating that To the extent that ORS 475.306(1) affirmat- “the Constitution has never been understood to con- ively authorizes the use of medical marijuana, fed- fer upon Congress the ability to require the States eral law preempts that subsection, leaving it to govern according to Congress's instructions”). “without effect.” See Cipollone v. Liggett Group, The Attorney General concluded that Oregon was Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 free, as a matter of state law, to exempt medical L.Ed.2d 407 (1992) (“[S]ince our decision in Mc- marijuana use from criminal liability because Con- Culloch v. Maryland, 4 Wheat. 316, 427 [4 L.Ed. gress lacks the authority to require Oregon to pro- 579] (1819), it has been settled that state law that hibit that use. conflicts with federal law is ‘without effect.’ ”). Because ORS 475.306(1) was not enforceable when FN17. The Attorney General's opinion employer discharged employee, no enforceable stated that the Oregon Medical Marijuana state law either authorized employee's use of Act “protects users who comply with its marijuana or excluded its use from the “illegal use requirements from state criminal prosecu- of drugs,” as that phrase is defined in ORS tion for production, possession, or delivery 659A.122(2) and used in ORS 659A.124. It follows of a controlled substance.” Letter Opinion that BOLI could not rely on the exclusion in ORS at 2. In support of that statement, the opin- 659A.122(2) for “uses authorized * * * under other ion cited former ORS 475.306(2) (2003), provisions of state * * * law” to conclude that med- which provided an affirmative defense for ical marijuana use was not an illegal use of drugs persons who possessed excess amounts of within the meaning of ORS 659A.124. marijuana if possession of that amount of

marijuana were medically necessary. See By contrast, there is no dispute that Congress Or. Laws 2005, ch. 822, § 2 (repealing that has the authority under the Supremacy Clause to provision). The opinion also cited ORS preempt state laws that affirmatively authorize the 475.319 and ORS 475.309(9), which use of medical marijuana. Whether Congress has provides an affirmative defense to criminal exercised that authority turns on congressional in- liability for persons who have applied for tent: that is, did Congress intend to preempt the but not yet received a registry identifica- state law? See Cipollone, 505 U.S. at 516, 112 S.Ct. tion card. 2608 (describing preemption doctrine). More specifically, the constitutional question in this case is The Attorney General's opinion has no bearing whether, under the doctrine of implied preemption, on the issue presented in this case for two reasons. a state law authorizing the use of medical marijuana First, as noted, one subsection of the Oregon Med- “stands as an obstacle to the accomplishment and ical Marijuana Act affirmatively authorizes the use execution of the full purposes and objectives of of medical marijuana. *180ORS 475.306(1). Other Congress.” See Hines, 312 U.S. at 67, 61 S.Ct. 399 provisions exempt its use from state criminal liabil- (stating that test). Nothing in the Attorney General's ity. See, e.g., ORS 475.309(1); ORS 475.319. In opinion addresses that question, and the commis- this case, only the validity of the authorization mat- sioner erred in finding an answer in the Attorney ters. ORS 659A.122(2) excludes medical marijuana *181 General's opinion**531 to a question that the use from the definition of “illegal use of drugs” for Attorney General never addressed. the purposes of the state employment discrimination laws if state law authorizes that use. The Attor- The dissent addresses the issue that the Attor- ney General's opinion, however, addresses only the ney General's opinion did not and would hold for validity of the exemptions; it does not address the alternative reasons that ORS 475.306(1) does not validity of the authorization found in ORS stand as an obstacle to the full accomplishment of 475.306(1). It thus does not address the issue that is Congress's purposes in enacting the Controlled central to the resolution of this case. Substances Act. The dissent reasons that, because ORS 475.306(1) does not “giv[e] permission to vi- Second, and more importantly, the validity of olate the Controlled Substances Act or affec [t] its the exemptions and the validity of the authorization enforcement, [that subsection] does not pose an turn on different constitutional principles. The At- obstacle to the federal act necessitating a finding of torney General reasoned that the exemptions from implied preemption.” 348 Or. at 197, 230 P.3d at FN18 criminal liability are valid because “Congress can- 539 (Walters, J., dissenting). In the dissent's not compel the States to enact or enforce a federal view, the fact that a state law affirmatively author- regulatory program”—a restriction that derives izes conduct that federal law explicitly forbids is from Congress's limited authority under the federal not sufficient to find that the state law poses an constitution. See Printz, 521 U.S. at 935, 117 S.Ct. obstacle to the full accomplishment of the purposes 2365 (stating limited authority); New York, 505 of the federal law and is thus preempted. The dis- U.S. at 161–66, 112 S.Ct. 2408 (describing the sent also advances what appears to be an alternative sources of that limitation). Under the Attorney Gen- basis for its position. It reasons that the Oregon eral's reasoning and the United States Supreme Medical Marijuana Act, as a whole, exempts med- Court decisions on which his opinion relies, Con- ical marijuana use from state criminal liability and gress lacks authority to require states to criminalize that ORS 475.306(1) is merely one part of that lar- conduct that the states choose to leave unregulated, ger exemption. It appears to draw two different leg- no matter how explicitly Congress directs the states al conclusions from that alternative proposition. It to do so. suggests that, to the extent ORS 475.306(1) merely

exempts medical marijuana use from criminal liab- ment of the purposes of the federal law and is not ility, then Congress lacks power to require states to preempted. criminalize that conduct under the line of cases that the Attorney General cited. Alternatively, it sug- If Congress chose to prohibit anyone under the gests that, because authorization is merely the other age of 21 from driving, states could not authorize side of the coin from exemption, authorizing med- anyone over the age of 16 to drive and give them a ical marijuana use poses no more of an obstacle to license to do so. The state law would stand as an the accomplishment of the purposes of the Con- obstacle to the accomplishment of the full purposes trolled Substances Act than exempting that use and objectives of Congress (keeping everyone un- from state criminal liability and thus that use is not der the age of 21 off the road) and would be pree- preempted. We begin with the test that the dissent mpted. Or, to use a different example, if federal law would employ in obstacle preemption cases. prohibited all sale and possession of alcohol, a state law licensing the sale of alcohol and authorizing its FN18. The dissent phrases the test it would use would stand as an obstacle to the full accom- apply in various ways throughout its opin- plishment of Congress's purposes. ORS 475.306(1) ion. For instance, it begins its opinion by is no different. To the extent that ORS 475.306(1) stating that the Oregon Medical Marijuana authorizes persons holding medical marijuana li- Act neither “permits [n]or requires the vi- censes to engage in conduct that the Controlled olation of the Controlled Substances Act.” Substances Act explicitly prohibits, it poses the 348 Or. at 190, 230 P.3d at 536 (Walters, same obstacle to the full accomplishment of Con- J., dissenting). Because the Oregon Medic- gress's purposes (preventing all use of marijuana, al Marijuana Act permits (and indeed au- including medical uses). thorizes) conduct that violates the Con- trolled Substances Act, we understand the The dissent, however, reasons that one state dissent to use the word “permits” to mean case and four federal cases support its view of expressly purports to “giv[e] permission,” obstacle preemption. It reads State v. Rodriguez, as it later rephrases its test. We also note 317 Or. 27, 854 P.2d 399 (1993), as providing dir- that, if the Oregon Medical Marijuana Act ect support for its view. See 348 Or. at 197–98, 230 “required” a violation of federal law, then P.3d at 539–40 (Walters, J., dissenting). In Rodrig- the physical impossibility prong of implied uez, federal **532 Immigration and Naturalization preemption would apply. Service (INS) agents obtained evidence pursuant to a federal administrative warrant that was valid un- *182 As noted, the dissent would hold that a der federal law but not under the Oregon Constitu- state law stands as an obstacle to the execution and tion, and the question was whether suppressing accomplishment of the full purposes of a federal evidence obtained pursuant to that warrant in a law (and is thus preempted) if the state law purports *183 state criminal proceeding was an obstacle to to override federal law either by giving permission the accomplishment of the full purposes and object- to violate the federal law or by preventing the fed- ives of the federal immigration laws. This court eral government from enforcing its laws. We do not held that it was not. Suppressing evidence in the disagree that such a law would be an obstacle. But state criminal proceeding was completely unrelated it does not follow that anything less is not an to the INS's ability to carry out its separate mission obstacle. Specifically, we disagree with the dis- of enforcing the federal immigration laws in a fed- sent's view that a state law that specifically author- eral administrative proceeding. This court did not izes conduct that a federal law expressly forbids hold in Rodriguez, as the dissent appears to con- does not pose an obstacle to the full accomplish- clude, that state law will be an obstacle to the full

accomplishment of the purposes of the federal law forcing complementary tort remedies. only if state law interferes with the federal government's ability to enforce its laws. The Court's opinion in Florida Lime & Avo- cado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. The dissent also relies on four United States 1210, 10 L.Ed.2d 248 (1963), on which the dissent Supreme Court cases “for the proposition that states also relies, is to the same effect. In that case, the may impose standards of conduct different from Court determined that a federal marketing order set- those imposed by federal law without creating an ting minimum standards for picking, processing, obstacle to the federal law.” 348 Or. at 199, 230 and transporting avocados did not reflect a congres- P.3d at 541 (Walters, J., dissenting). It follows, the sional intent to prevent states from enacting laws dissent reasons, that the mere fact that state law au- governing “the distribution and retail sale of those thorizes conduct that federal law forbids does not commodities.” 373 U.S. at 145, 83 S.Ct. 1210. As mean that state law is an obstacle to the accom- the Court explained, “[c]ongressional regulation at plishment of the purposes of the federal law. The one end of the stream of commerce does not, ipso four cases on which the dissent relies stand for a facto, oust all state regulation at the other end.” Id. narrower proposition than the dissent draws from The Court accordingly concluded that there was them. In interpreting the applicable federal statute “no irreconcilable conflict with the federal regula- in each of those cases, the Court concluded that tion [that] require[d] a conclusion that [the state Congress intended to leave states free to impose law] was displaced.” Id. at 146, 83 S.Ct. 1210. FN19 complementary or supplemental regulations on a The Court's reasoning implies that, when, as person's conduct. None of those cases holds that in this case, there is an irreconcilable conflict states can authorize their citizens to engage in con- between **533 state and federal law, that conflict duct that Congress explicitly has forbidden, as ORS “requires a conclusion that [the state law] [i]s dis- 475.306(1) does. placed.” See id.

In Wyeth, one of the cases on which the dissent FN19. The dissenting opinion quotes the relies, the defendant argued that permitting state dissent in Florida Lime & Avocado for the tort remedies based on a drug manufacturer's failure proposition that the conflict between state to warn would “interfere with ‘Congress's purpose and federal law in that case was unmistak- to entrust an expert agency to make drug labeling able. See 348 Or. at 200–02, 230 P.3d at decisions that strike a balance between competing 541–42 (Walters, J., dissenting) (quoting objectives.’ ” 129 S.Ct. at 1199 (quoting the de- Florida Lime & Avocado, 373 U.S. at 173, fendant's argument). After considering the history 83 S.Ct. 1210 (White, J., dissenting)). The of the federal statute, the Court concluded that majority, however, disagreed on that point, “Congress did not intend FDA oversight to be the 373 U.S. at 145–46, 83 S.Ct. 1210, and its exclusive means of ensuring drug safety and effect- conclusion that federal law left room for iveness.” Id. at 1200. The Court concluded instead complementary state law was pivotal to its that Congress intended to allow complementary conclusion that the federal marketing order state tort remedies. Id. Given that interpretation of did not preempt California law. the federal law, the Court determined that the state tort remedy *184 was consistent with, and not an In both Florida Lime & Avocado and Wyeth obstacle to, Congress's purpose in requiring warn- and the other two cases the dissent cites, the Court interpreted the applicable federal statute to permit ings in the first place. Put differently, the state law FN20 was not an obstacle to Congress's purpose because complementary or supplementary state law. Congress intended to permit states to continue en- None of those cases considered state *185 laws that authorized conduct that the federal law specifically

prohibited, as is present in this case, and none of authorization, not exemption. Beyond that, if ORS those cases stands for the proposition that such a 475.306(1) were merely part of a larger exemption, law would not be an obstacle to the accomplish- then no provision of state law would authorize the ment of the full purposes of Congress. Rather, the use of medical marijuana. If that were true, medical Court's opinion in Florida Lime & Avocado points marijuana use would not come within one of the ex- in precisely the opposite direction; it teaches that clusions from the “illegal use of drugs,” as that when, as in this case, the state and federal laws are phrase is defined in ORS 659A.122, and the protec- in “irreconcilable conflict,” federal law will dis- tions of ORS 659A.112 would not apply to employ- FN21 place state law. See 373 U.S. at 146, 83 S.Ct. 1210. ee. See ORS 659A.124 (so providing).

FN20. The other two United States Su- FN21. There is a suggestion in the dissent preme Court cases on which the dissent re- that ORS 475.306(1) is integral to the goal lies are to the same effect. Neither case in- of exempting medical marijuana use from volved a federal statute that, as the Court state criminal liability and cannot be interpreted it, prohibited what the state law severed from the remainder of the Oregon authorized. See California v. ARC America Medical Marijuana Act. That act, however, Corp., 490 U.S. 93, 103, 109 S.Ct. 1661, contains an express severability clause, 104 L.Ed.2d 86 (1989) (explaining that and it is not apparent why the provisions nothing in an earlier decision that only dir- exempting medical marijuana use from ect purchasers may bring an action under state criminal liability cannot “be given section 4 of the Clayton Act “suggests that full effect without [the authorization to use it would be contrary to congressional pur- medical marijuana found in ORS poses for States to allow indirect pur- 475.306(1) ].” See Or. Laws 1999, ch. 4, § chasers to recover under their own antitrust 18 (providing the terms for severing any laws”); Silkwood v. Kerr–McGee Corp., part of the act held invalid). 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (holding that, even [10] Another thread runs through the dissent. It though Congress “was well aware of the reasons that, as a practical matter, authorizing med- NRC's exclusive authority to regulate ical marijuana use is no different from exempting safety matters,” Congress also had that use from criminal liability. It concludes that, if “assumed that state law remedies, in exempting medical marijuana use from criminal li- whatever form they might take, were avail- ability is not an obstacle to the accomplishment of able to those injured in nuclear incidents”). the purposes of the Controlled Substances Act and is *186 thus not preempted, then neither is a state As noted, the dissent also advances what ap- law authorizing medical marijuana use. The diffi- pears to be an alternative ground for its position. culty with the dissent's reasoning is its premise. It The dissent reasons that ORS 475.306(1) does not presumes that a law exempting medical marijuana affirmatively authorize the use of medical use from liability is valid because it is not preemp- marijuana; it views that subsection instead as part ted. As the Attorney General's opinion explained, of a larger exemption of medical marijuana use however, Congress lacks the authority to compel a from state criminal laws. The dissent's reasoning is state to criminalize conduct, no matter how expli- difficult to square with the text of ORS 475.306(1). citly it directs a state to do so. When, however, a That subsection provides that a person holding a re- state affirmatively authorizes conduct, Congress gistry identification card “may engage” in the lim- has the authority to preempt that law and did so ited use of medical marijuana. Those are words of here. The dissent's reasoning fails to distinguish

those two analytically separate constitutional prin- concluded was sufficient to answer em- ciples. ployer's reliance on ORS 659A.124. Al- though we could remand this case to the In sum, whatever the wisdom of Congress's commissioner to permit him to address policy choice to categorize marijuana as a Schedule whether this exclusion applies, its applica- I drug, the Supremacy Clause requires that we re- tion in this case turns solely on an issue of spect that choice when, as in this case, state law statutory interpretation, an issue on which stands as an obstacle to the accomplishment of the we owe the commissioner no deference. In full purposes of the federal law. Doing so means these circumstances, we see no need to re- that **534ORS 475.306(1) is not enforceable. mand and unnecessarily prolong the resol- Without an enforceable state law authorizing em- ution of this case. ployee's use of medical marijuana, that basis for excluding medical marijuana use from the phrase The question thus posed is whether employee “illegal use of drugs” in ORS 659A.122(2) is not used marijuana “under supervision of a licensed available. health care professional.” The answer to that question turns initially on what a person must show to [11] As noted, a second possible exclusion come within that exclusion. As explained below, from the definition of “illegal use of drugs” exists, we conclude that two criteria must be met to come which we also address. The definition of “illegal within the exclusion. As an initial matter, the use of drugs” also excludes from that phrase “the phrase “taken under supervision” of a licensed use of a drug taken under supervision of a licensed FN22 health care professional implies that the health care health care professional.” ORS 659A.122(2). professional is monitoring or overseeing the pa- On that issue, as noted above, employee's physician tient's use of what would otherwise be an illegal signed a statement that employee had been dia- drug. See Webster's Third New Int'l Dictionary gnosed with a debilitating condition, that marijuana 2296 (unabridged ed. 2002) (defining supervise as may mitigate the symptoms or effects of that condi- “coordinate, direct, and inspect continuously and at tion, but that the physician's statement was not a first hand the accomplishment of” a task); cf. prescription to use marijuana. That statement was Moore, 423 U.S. at 143, 96 S.Ct. 335 (holding that sufficient under the Oregon Medical Marijuana Act a physician who prescribed methadone, a Schedule to permit *187 employee to obtain a registry identi- II controlled substance, without regulating his pa- fication card, which then permitted him to use tients' dosage and with no precautions against his marijuana to treat his condition. Employee's physi- patients' misuse of methadone violated section 841 cian recommended that employee use marijuana of the Controlled Substances Act). five to seven times daily by inhalation. However, without a prescription, employee's physician had no Beyond supervision, when a health care profes- ability to control either the amount of marijuana sional administers a controlled substance, the ex- that employee used or the frequency with which he clusion requires that the Controlled Substances Act used it, if employee chose to disregard his physi- authorize him or her to do so. That follows from the cian's recommendation. text and context of the definition of illegal use of drugs set out in ORS 659A.122(2). After providing FN22. The commissioner did not consider that the illegal use of drugs does not include “the whether this exclusion applied, in part be- use of a drug taken under supervision of a licensed cause the Court of Appeals had stated in health care professional,” the legislature added “or Washburn that the use of marijuana for other uses authorized under the Controlled Sub- medical purposes was “not unlawful,” stances Act.” The phrase “or other uses authorized which the parties and the commissioner

by the Controlled Substances Act” is telling. The opting the same exclusion, the Oregon legislature words “other uses” imply that the preceding use had any different intent in mind. Cf. Stevens, 336 (the use of drugs taken under supervision of a li- Or. at 402–03, 84 P.3d 140 (looking to the federal censed health care professional) also refers to a use counterpart to ORCP 36 to determine Oregon legis- authorized by the Controlled Substances Act. See lature's intent). Given the text and context of ORS Webster's at 1598 (defining “other” as “being the 659A.122(2), we conclude that, when a health care one (as of two or more) left”). professional administers a controlled substance, the exclusion for the “use of a drug taken under super- *188 Not only does the text of ORS vision of a licensed health care professional” refers 659A.122(2) imply that the use of controlled sub- to those medical and research uses that the Con- stances taken under supervision of a licensed health trolled Substances Act authorizes. care professional refers to uses that the Controlled Substances Act authorizes, but the context leads to *189 In sum, two criteria are necessary to come the same conclusion. See Stevens v. Czerniak, 336 within the exclusion for the use of a controlled sub- Or. 392, 401, 84 P.3d 140 (2004) (explaining that stance taken under supervision of a licensed health context includes “ ‘the preexisting common law and care professional: (1) the Controlled Substances the statutory framework within which the law was Act must authorize a licensed health care profes- enacted’ ”) (quoting Denton and Denton, 326 Or. sional to prescribe or administer the controlled sub- 236, 241, 951 P.2d 693 (1998)). As noted, the Con- stance and (2) the health care professional must trolled Substances Act both authorizes physicians monitor or supervise the patient's use of the con- and other health care professionals to administer trolled substance. In this case, we need not decide **535 controlled substances for medical and re- whether the evidence was sufficient to prove the search purposes and defines the scope of their au- second criterion— i.e., whether employee's physi- thority to do so. See Moore, 423 U.S. at 138–40, 96 cian monitored or oversaw employee's use of S.Ct. 335 (so holding). We infer that, in excluding marijuana. Even if it were, the Controlled Sub- “the use of a drug taken under supervision of li- stances Act did not authorize employee's physician censed health care professionals” from the phrase to administer (or authorize employee to use) “illegal use of drugs,” the legislature intended to marijuana for medical purposes. As noted, under refer to those medical and research uses that, under the Controlled Substances Act, physicians may not the Controlled Substances Act, physicians and other prescribe Schedule I controlled substances for med- health care professionals lawfully can put con- ical purposes. At most, a physician may administer trolled substances. those substances only as part of a Food and Drug FN23 Administration preapproved research project. Another contextual clue points in the same dir- Because there is no claim in this case that employee ection. The exclusion in ORS 659A.122(2) for the and his physician were participating in such a use of a drug taken under supervision of a licensed project, employee's use of marijuana was not taken health care professional is virtually identical to an under supervision of a licensed health care profes- exclusion in the definition of illegal use of drugs sional, as that phrase is used in ORS 659A.122(2). found in the ADA. See 42 U.S.C. § 12111(6)(A) (excluding “the use of a drug taken under supervi- FN23. Gonzales v. Oregon, 546 U.S. 243, sion by a licensed health care professional, or other 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), uses authorized by the Controlled Substances Act”). addressed a different issue from the one The federal exclusion contemplates medical and represented here. The Controlled Substances search uses that the Controlled Substances Act au- Act provides that Schedule II controlled thorizes, and there is no reason to think that, in ad- substances have accepted medical uses,

and the issue in Gonzales was whether the fessional—do not apply here. Third, regarding the Attorney General had exceeded his stat- first potentially applicable exclusion, to the extent utory authority in defining which uses of that ORS 475.306(1) authorizes the use of medical Schedule II controlled substances were le- marijuana, the Controlled Substances Act preempts gitimate medical uses. In this case, by con- that subsection. We note that our holding in this re- trast, the Controlled Substances Act gard is limited to ORS 475.306(1); we do not hold provides that Schedule I controlled sub- that the Controlled Substances Act preempts provi- stances, such as marijuana, have no accep- sions of the Oregon Medical Marijuana Act that ex- ted medical use. That congressional policy empt the possession, manufacture, or distribution of choice both addresses and conclusively re- medical marijuana from state criminal liability. solves the issue that the Attorney General Fourth, because employee was currently engaged in lacked statutory authority to address in the illegal use of drugs and employer discharged Gonzales. him for that reason, the protections of ORS 659A.112, including the obligation to engage in a Because employee did not take marijuana un- meaningful interactive discussion, do not apply. der supervision of a licensed health care profession- ORS 659A.124. It follows that BOLI erred in ruling al and because the authorization to use marijuana that employer violated ORS 659A.112. found in ORS 475.306(1) is unenforceable, it follows that employee was currently engaged in the il- The decision of the Court of Appeals and the legal use of drugs and, as the commissioner found, revised order on reconsideration of the Commis- employer discharged employee for that reason. Un- sioner of the Bureau of Labor and Industries are re- der the terms of ORS 659A.124, “the protections of versed. ORS 659A.112 do not apply” to employee. The commissioner's final order on reconsideration rests, WALTERS, J., dissented and filed an opinion, in however, on the premise *190 that the protections which DURHAM, J., joined. of ORS 659A.112 —specifically, the requirement WALTERS, J., dissenting. for employer to engage in a “meaningful interactive Neither the Oregon Medical Marijuana Act nor process” as an aspect of reasonable accommoda- any provision thereof permits or requires the violation—do apply to employee. Under ORS 659A.124, tion of the Controlled Substances Act or affects or that premise is mistaken, and the commissioner's precludes its enforcement. Therefore, neither the revised order on reconsideration cannot stand. Both Oregon act nor any provision thereof stands as an the commissioner's order and the Court of Appeals obstacle to the federal act. Because the *191 major- decision affirming **536 that order on procedural ity wrongly holds otherwise, and because, in doing grounds must be reversed. so, it wrongly limits this state's power to make its Given the number of the issues discussed in own laws, I respectfully dissent. this opinion, we summarize the grounds for our de- The United States Constitution establishes a cision briefly. First, employer preserved its chal- system of dual sovereignty in which state and fed- lenge that, as a result of the Controlled Substances eral governments exercise concurrent authority over Act, the use of medical marijuana is an illegal use the people. Printz v. United States, 521 U.S. 898, of drugs within the meaning of ORS 659A.124. 920, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Each Second, two potentially applicable exclusions from government is supreme within its own sphere. Id. at the phrase “illegal use of drugs”—the use of drugs 920–21, 117 S.Ct. 2365. In enacting the federal authorized by state law and the use of drugs taken Controlled Substances Act, which prohibits all use under the supervision of a licensed health care pro- of marijuana, Congress acted pursuant to its author-

ity under the Commerce Clause. Gonzales v. Raich, As the majority recognizes, the Controlled Sub- 545 U.S. 1, 5, 125 S.Ct. 2195, 162 L.Ed.2d 1 stances Act does not include an express preemption (2005). In enacting the Oregon Medical Marijuana provision. 348 Or. at 173–75, 230 P.3d at 526–27. Act, which permits the circumscribed use of medic- It contains, instead, “a saving clause” intended to al marijuana, Oregon acted pursuant to its historic “preserve state law.” See Wyeth, 129 S.Ct. at 1196 power to define state criminal law and to protect (so construing nearly identical provision in Federal the health, safety, and welfare of its citizens. Food, Drug, and Cosmetic Act). Thus, the majority Whalen v. Roe, 429 U.S. 589, 603, 603 n. 30, 97 should begin its analysis “with the assumption that S.Ct. 869, 51 L.Ed.2d 64 (1977); Robinson v. Cali- the historic police powers [exercised by the State of fornia, 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d Oregon] were not to be superseded by the Federal 758 (1962). Act * * *.” Id. at 1194–95.

In enacting the Controlled Substances Act, The majority does not do so. It instead implies, Congress did not have the power to require Oregon from the federal policy choice that the Controlled to adopt, as state criminal law, the policy choices Substances Act represents, a Congressional intent represented in that federal act. Congress does not to preempt provisions of Oregon law that makes a have the power to commandeer a state's legislative different policy choice. 348 Or. at 184, 230 P.3d at processes by compelling it to enact or enforce fed- 532–33. To understand the majority's error in ap- eral laws. New York v. United States, 505 U.S. 144, plying the “obstacle” prong of the United States Su- 149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). preme Court's implied preemption analysis, it is im- “[E]ven where Congress has the authority under the portant to understand the purposes and effects of Constitution to pass laws requiring or prohibiting the federal and state laws that are at issue in this certain acts, it lacks the power directly to compel case. the States to require or prohibit those acts.” Id. at 166, 112 S.Ct. 2408. Congress enacted the federal Controlled Sub- stances Act, as the majority explains, to “conquer Because it had authority to enact the Controlled drug abuse” and “control” traffic in controlled sub- Substances Act, Congress did, however, have the stances. 348 Or. at 172–73, 230 P.3d at 526. In list- power to expressly preempt state laws that conflict ing marijuana as a Schedule I drug, Congress de- with the Controlled Substances Act. A cornerstone cided that marijuana has no recognized medical of the Supreme Court's Supremacy Clause analysis use. Therefore, “Congress imposed a blanket feder- is that “[i]n all pre-emption cases, and particularly al prohibition” on the use of marijuana. 348 Or. at in those in which Congress has legislated in a field 178, 230 P.3d at 529. As noted, Congress did not which the States have traditionally occupied,” the expressly indicate, however, that states could not Court “start[s] with the assumption that the historic enact their own criminal drug laws or make differ- police powers of the States were not to be super- ent decisions about the appropriate use of seded *192 by the Federal Act unless that was the marijuana. clear and **537 manifest purpose of Congress.” Wyeth v. Levine, ––– U.S. ––––, ––––, 129 S.Ct. Oregon did in fact enact its own criminal drug 1187, 1194–95, 173 L.Ed.2d 51 (2009) (internal el- laws, including the state Uniform Controlled Sub- lipsis and quotation marks omitted). The Court re- stances Act (*193ORS 475.005 to 475.285 and lies on that presumption out of “respect for the ORS 475.840 to 475.980). That act controls and States as independent sovereigns in our federal sys- punishes, as state criminal law, the use of all sub- tem.” Id. at 1195 n. 3 (internal quotation marks stances that the federal government classifies as omitted). Schedule I drugs, including marijuana. ORS 475.840; ORS 475.856 – 475.864. Oregon also en-

acted the Oregon Medical Marijuana Act. That act —the entirety of the Oregon Medical exempts certain medical marijuana users from the Marijuana Act—is “intended to make only state criminal drug laws, including from the state those changes to existing Oregon laws that Uniform Controlled Substances Act. The Oregon are necessary to protect patients and their Medical Marijuana Act does not permit Oregonians doctors from criminal and civil penal- to violate the federal Controlled Substances Act or ties[.]” (Emphasis added.) bar the federal government from continuing to enforce the federal Controlled Substances Act against “ Raich does not hold that state laws regulating Oregonians. The Oregon Attorney General de- medical marijuana are invalid nor does it require scribed the purpose and reach of the Oregon Medic- states to repeal existing medical marijuana laws. al Marijuana Act in a letter ruling: Additionally, the case does not oblige states to enforce federal laws. * * * The practical effect of “The Act protects medical marijuana users who Raich in Oregon is to affirm what we have under- comply with its requirements from state criminal stood to be the law since the adoption of the FN2 prosecution for production, possession, or deliv- Act.” ery of a controlled substance. See, e.g., ORS 475.306(2), 475.309(9) and 475.319. However, FN2. The question that the Oregon Attor- the Act neither protects marijuana plants from ney General answered in the letter opinion seizure nor individuals from prosecution if the was “Does Gonzales v. Raich, 545 U.S. [1, federal government chooses to take action against 125 S.Ct. 2195, 162 L.Ed.2d 1] (2005),** patients or caregivers under the federal * invalidate the Oregon statutes authoriz- [Controlled Substances Act]. The Act is explicit ing the operation of the Oregon Medical in its scope: ‘Except as provided in ORS 475.316 Marijuana Program?” The Attorney Gener- and 475.342, a person engaged in or assisting in al said, “No.” The Attorney General ex- the medical use of marijuana [in compliance with plained that “[t]he Act protects medical the terms of the Act] is excepted from the crimin- marijuana users who comply with its re- al laws of the state for possession, delivery or quirements from state criminal prosecution production of marijuana, aiding and abetting an- for production, possession, or delivery of a other in the possession, delivery or production of controlled substance,” and cited ORS marijuana or any other criminal offense in which 475.309, ORS 475.319, and ORS possession, delivery or production of marijuana is 475.306(2). At the time of the Attorney an element * * *.’ ORS 475.309(1).” General opinion, ORS 475.306(2) (2003) provided: Letter of Advice dated June 17, 2005, to Susan M. Allen, Public Health Director, Department of “If the individuals described in subsec- Human Services, 2 (first emphasis in original; later tion (1) of this section possess, deliver or FN1 emphases added). The **538 Oregon Attorney produce marijuana in excess of the General also concluded in that letter ruling *194 amounts allowed in subsection (1) of this that the decision of the Supreme Court in Raich section, such individuals are not excep- —that Congress had authority to enact the blanket ted from the criminal laws of the state prohibitions in the Controlled Substances Act—had but may establish an affirmative defense no effect on the validity of Oregon's statute: to such charges, by a preponderance of the evidence that the greater amount is FN1. Consistent with the Attorney Gener- medically necessary to mitigate the al's letter opinion, ORS 475.300(4) symptoms or effects of the person's de- provides that ORS 475.300 to 475.346 bilitating medical condition.”

ORS 475.306(2) (2003), amended by Or. question open, however. 348 Or. at 172 n. Laws 2005, ch. 822, § 2 (emphasis ad- 12, 230 P.3d at 526 n. 12. ded). Thus, one of the subsections of the Oregon Medical Marijuana Act that the As I will explain in more detail, I believe that Attorney General cited used words of the majority is incorrect in reaching that conclu- authorization very similar to those used sion. First, the words of authorization used in ORS in ORS 475.306(1). 475.306(1) and other subsections of the Oregon Medical Marijuana Act serve only to make operable Throughout the opinion, the Attorney the exceptions to and exemptions from state prosec- General discussed the continued validity ution provided in the remainder of the act. The of the Oregon Medical Marijuana Act as words of authorization used in those subsections do a whole and did not in any way differen- not grant authorization to act that is not already in- tiate between provisions of the act that herent in the exceptions or exemptions, nor do they authorize medical marijuana use and permit the violation of federal law. Second, in in- those that create an exemption from state stances in which state law imposes standards of prosecution. In fact, the Attorney Gener- conduct that are different than the standards of con- al specifically opined that the state is en- duct imposed by federal law, but both laws can be titled to continue to issue registry identi- enforced, the Supreme Court has not held the state fication cards—cards that, by definition, laws to be obstacles to the federal laws, nor dis- are documents that identify persons “au- cerned an implied Congressional intent to preempt thorized to engage in the medical use of the state laws from the different policy choices marijuana.” ORS 475.302(10) (emphasis made by the federal government. Thus, the majority added). is incorrect in finding that the standard of conduct and policy choice represented by the Controlled Id. (emphasis in original). Substances Act prohibits a different state standard of conduct and policy choice. Both the Oregon The majority seems to accept that the Oregon Medical Marijuana Act and the **539 Controlled Medical Marijuana Act does not bar the federal Substances Act can be enforced, and this state court government from enforcing the Controlled Sub- should not interpret the federal act to impliedly stances Act. The majority acknowledges that “state preempt the state act. law does not prevent the federal government from enforcing its marijuana laws against medical The Oregon Medical Marijuana Act contains a marijuana users in Oregon if the federal govern- number of subsections that use words of authoriza- ment chooses to do so.” 348 Or. at 178, 230 P.3d at tion. Those subsections are interwoven with the 529. The majority also seems to accept, as a result, subsections of the act that except and exempt med- that provisions of the Oregon Medical Marijuana ical marijuana users from criminal liability. For in- Act that exempt persons from state criminal liabil- stance, ORS 475.309, which the majority cites as a ity do not pose an obstacle to the Controlled Sub- FN3 provision that excepts persons who use medical stances Act. However, in the majority's view, marijuana from state criminal liability, 348 Or. at one subsection of the Oregon Medical *195 179–80, 230 P.3d at 530, provides that a person en- Marijuana Act, ORS 475.306(1), presents an gaged in or assisting in the medical use of obstacle to the Controlled Substances Act and does marijuana “is excepted from the criminal laws of so solely because it includes words of authoriza- the state” if *196 certain conditions, including hold- tion. Id. at 178–79, 230 P.3d at 529–30. ing a “ registry identification card, ” are satisfied. (Emphases added.) ORS 475.302(10) defines FN3. The majority expressly leaves that

“registry identification card” as follows: sion for its operation. 348 Or. at 179–80, 230 P.3d at 530. ORS 475.319 creates an affirmative defense “a document issued by the department that identi- to a criminal charge of possession of marijuana, but fies a person authorized to engage in the medical only for persons who possess marijuana “in use of marijuana and the person's designated amounts permitted under ORS 475.320.” (Emphasis primary caregiver, if any.” added.) ORS 475.320(1)(a) provides: “A registry identification cardholder *** may possess *197 (Emphasis added.) up to six mature marijuana plants and 24 ounces of Consider also ORS 475.306(1), the section of usable marijuana.” (Emphasis added.) the act that the majority finds offending. That sub- The words of authorization used in ORS section references both ORS 475.309, the exception 475.306(1) are no different from the words of au- section, and the registry identification card neces- thorization that are used in other sections of the act sary to that exception. ORS 475.306(1) provides: and that are necessary to effectuate ORS 475.309 “A person who possesses a registry identifica- and ORS 475.319 and the exceptions to and exemption card issued pursuant to ORS 475.309 may tions from criminal liability that they create. Those engage in, and a designated primary caregiver of words of authorization do not grant permission that such person may assist in, the medical use of would not exist if those words were eliminated or marijuana only as justified to mitigate the symp- replaced with words of exception or exclusion. toms or effects of the person's debilitating medic- Even if it did not use words of permission, the Ore- FN4 al condition.” gon Medical Marijuana Act would permit, for purposes of Oregon law, the conduct that it does not punish. Furthermore, the statutory sections that FN4. The majority recognizes that it is es- provide that citizens may, for state law purposes, sential to read ORS 475.306(1) and ORS engage in the conduct that the state will not punish 475.302(10) together to find an affirmative have no effect on the Controlled Substances Act authorization to use marijuana for medicin- that is greater than the effect of the sections that deal purposes. 348 Or. at 170–71, 230 P.3d at clare that the state will not punish that conduct. 525. However, the majority does not explain why it finds ORS 475.306(1) and not Because neither the Oregon Medical Marijuana ORS 475.302(10) preempted. Act nor any subsection thereof gives permission to violate the Controlled Substances Act or affects its (Emphasis added.) Reading those three provi- enforcement, the Oregon act does not pose an sions together, it is clear that ORS 475.306(1) obstacle to the federal act necessitating a finding of serves as a limitation on the use of medical implied preemption. In State v. Rodriguez, 317 Or. marijuana that the registry identification card and 27, 854 P.2d 399 (1993), this court recognized ORS 475.309 together permit. Under ORS **540 that state and federal laws can prescribe dif- 475.306(1), a person who possesses a registry iden- ferent standards, each acting within its own author- tification card issued pursuant to ORS 475.309 may ity, without affecting the other's authority, and engage in the use the card permits “only as justified without offending the Supremacy Clause. In that to mitigate the symptoms or effects of the person's case, the defendant had been arrested by federal im- debilitating medical condition.” (Emphasis added.) migration agents on a warrant that the state conceded did not satisfy the oath or affirmation re- ORS 475.319, another section of the act that quirement of Article I, section 9, of the Oregon the majority cites as creating an exemption from Constitution. The state argued, however, that, be- criminal liability, also depends on words of permis-

cause the warrant was valid under federal law, “the ent standards for the same conduct without offend- Supremacy Clause render[ed] Article I, section 9, ing the Supremacy Clause, as long as both sets of inapplicable to the arrest * * *.” Id. at 34, 854 P.2d laws may be enforced. By deciding not to punish 399. The court rejected that argument and con- the medical use of marijuana, the Oregon Medical cluded that preemption was not at issue because the Marijuana Act authorizes, for state law purposes, application of the state constitutional requirements conduct that the Controlled Substances Act prohib- for an arrest warrant did not “affect the ability of its. The Oregon Medical Marijuana Act does not, the federal government to administer or enforce its however, offend the Supremacy Clause because it * * * laws.” Id. at 36, 854 P.2d 399. Because the does not affect enforcement of the Controlled Sub- court interpreted the state constitution not to im- stances Act. pose requirements on arrests by federal officers, the state and the federal law did not conflict: In the first of the two cases on which the majority relies, Barnett Bank v. Nelson, 517 U.S. 25, *198 “Because this court's interpretation of Art- 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), a federal icle I, section 9, in this context, cannot and will statute explicitly granted national banks the unlim- not interfere with the federal government in im- ited power to sell insurance in small towns. A state migration matters, the Supremacy Clause has no statute forbade and impaired the exercise of that bearing on this case and this court is not power, and the court held that it was preempted. ‘preempted’ from applying Article I, section 9, to defendant's arrest.” *199 Michigan Canners & Freezers Associ- ation v. Agricultural Marketing and Bargaining Id. Similarly, the Oregon Medical Marijuana Bd., 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 Act “cannot and will not interfere with” the federal (1984), the second case on which the majority re- government's enforcement of the Controlled Sub- lies, concerned a conflict between the federal Agri- stances Act and does not offend the Supremacy cultural Fair Practices Act, which protects the rights Clause. of producers of agricultural goods to remain independent and to bring their products to market on Instead of following Rodriguez, the majority their own without being required to sell those relies on two United States Supreme Court cases products through an association, and a Michigan for the proposition that state law that permits what statute. Id. at 473, 104 S.Ct. 2518. As the court ex- federal law prohibits is impliedly preempted. 348 plained in Massachusetts Medical Soc. v. Dukakis, Or. at 176–77, 230 P.3d at 528–29. The majority 815 F.2d 790, 796 (1st Cir.), cert. den., 484 U.S. then concludes that, “[t]o the extent that ORS 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987), the Ag- 475.306(1) affirmatively authorizes the use of med- ricultural Fair Practice Act creates a “right to re- ical marijuana, federal law preempts that subsec- frain from joining an association of producers[.]” tion, leaving it ‘without effect.’ ” 348 Or. at 178, (Ellipses omitted.) The Michigan statute at issue 230 P.3d at 529. I disagree with the majority's ana- prevented the exercise of the right conferred by the lysis for two reasons. First, the cases that the major- act by precluding an agricultural producer “from ity cites stand only for the proposition that when marketing his goods himself” and “impos[ed] on federal law bestows an unlimited power or right, the producer the same incidents of association state law cannot preclude the exercise of that power membership with which Congress was concerned * or right. The Controlled Substances Act does not * *.” **541 Michigan Canners, 467 U.S. at 478, create a right; it prohibits certain conduct. Second, 104 S.Ct. 2518. The Court held that under those cir- other Supreme Court cases hold that when a federal cumstances, the state statute was preempted. law does not create powers or rights but, instead, sets standards for conduct, state law may set differ- Neither Barnett nor Michigan Canners stands

for the proposition that a state statute that permits Id. at 103, 109 S.Ct. 1661. conduct that the federal government punishes is preempted. In those cases, the federal statutes did Other Supreme Court cases also illustrate the not punish conduct; they created powers or rights. Court's refusal to imply preemption, under the The Court therefore struck down state statutes that “obstacle” prong of its implied preemption analysis, forbade, impaired or prevented exercise of those where state and federal statutes set contrary stand- powers or rights. Because the Controlled Sub- ards or pursue contrary objectives. In Silkwood v. stances Act does not create a federal power or right Kerr–McGee Corp., 464 U.S. 238, 246, 104 S.Ct. and the Oregon Medical Marijuana Act does not 615, 78 L.Ed.2d 443 (1984), a case that the court in forbid, impair, or prevent the exercise of a federal ARC America cited as authority, the jury had awar- power or right, Barnett and Michigan Canners are ded the plaintiff a judgment of $10 million in punit- inapposite. The more relevant Supreme Court cases ive damages against the defendant, a nuclear power are those that consider the circumstance that exists company. The defendant asserted that a conflict ex- when federal and state laws impose different stand- isted between the state law that permitted the judg- ards of conduct. Those cases stand for the proposi- ment and a federal law regulating nuclear power tion that states may impose standards of conduct plants, with which the defendant had complied. different from those imposed by a federal law Despite an earlier ruling that the Nuclear Regulat- ory Commission had exclusive authority to regulate without creating an obstacle to the federal law. FN5 the safety of nuclear power plants, and even In California v. ARC America Corp., 490 U.S. though the Court accepted that “there is tension 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), the between the conclusion that safety regulation is the Court considered, under the “obstacle prong” of its exclusive concern of the federal law and the con- “actual conflict” implied preemption analysis, the clusion that a State may nevertheless award dam- conflict between Section 4 of the federal *200 ages based on its own law of liability,” id. at 256, Clayton Act, which authorizes only direct pur- 104 S.Ct. 615, the Court refused to invalidate the chasers to recover monopoly overcharges, and a state law. state statute, which expressly permits recovery by indirect purchasers. The Supreme Court held that, FN5. Pacific Gas & Elec. v. Energy Re- even if the state statute directly conflicted with the sources Conservation & Development goals of the federal law, as the Ninth Circuit had Comm'n, 461 U.S. 190, 211–13, 103 S.Ct. held, the state statute was not preempted. The Su- 1713, 75 L.Ed.2d 752 (1983). preme Court reasoned that states are not required to In Florida Lime & Avocado Growers, Inc. v. pursue federal goals when enacting their own laws: Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 “It is one thing to consider the congressional (1963), a federal *201 statute authorized the mar- policies identified in Illinois Brick [v. State of keting of Florida avocados on the basis of weight, Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d size, and picking date; California, however, regu- 707 (1977) ] and Hanover Shoe [v. United Shoe lated the marketing of avocados sold in the state on Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, the basis of oil content. As a result of the differing 20 L.Ed.2d 1231 (1968) ] in defining what sort of standards, about six percent of Florida avocados recovery federal antitrust law authorizes; it is that were deemed mature under federal standards something altogether different, and in our view were rejected from California markets. The inappropriate, to consider them as defining what plaintiffs argued that the federal standard for regu- federal law allows States to do under their own lating Florida avocados preempted California's con- antitrust law.” flicting regulation. As the dissent argued:

**542 “The conflict between federal and state The cases that I have reviewed demonstrate law is unmistakable here. The Secretary asserts that the Supreme Court requires more as a basis for certain Florida avocados are mature. The state implying a congressional intent to preempt a state law rejects them as immature. And the conflict is law than a Congressional purpose that is at odds over a matter of central importance to the federal with the policy that a state selects. The Court has scheme. The elaborate regulatory scheme of the permitted state laws that impose standards of con- marketing order is focused upon the problem of duct different than those set by federal laws to moving mature avocados into interstate com- stand unless the state laws preclude the enforce- merce. The maturity regulations are not peripher- ment of the federal laws or have some other demon- al aspects of the federal scheme.” strated effect on their operation. The Court has found state laws that forbid, impair or prevent the 373 U.S. at 173, 83 S.Ct. 1210 (White, J., dis- exercise of federally granted powers or rights to be senting). The majority, however, concluded that the preempted. test of whether an actual conflict existed was not whether the laws adopted contrary standards, but The majority does not contend, in accordance whether both laws could be enforced: with those cases, that ORS 475.306(1) or the Ore- “The test of whether both federal and state regu- gon Medical Marijuana Act as a whole precludes lations may operate, or the state regulation must enforcement of the Controlled Substances Act or give way, is whether both regulations can be en- has any other demonstrated effect on its forced without impairing the federal superintend- “accomplishment and execution.” The only ence of the field, not whether they are aimed at obstacles to the federal act that the majority identi- similar or different objectives.” fies are Oregon's differing policy choice and the lack of respect that it signifies. 348 Or. at 184–85, Id. at 142, 83 S.Ct. 1210 (emphasis added). 230 P.3d at 533.

The Court's most recent case on the issue, As an example of the way it believes the Su- Wyeth v. Levine, ––– U.S. ––––, 129 S.Ct. 1187, premacy Clause to operate, the majority posits that, 173 L.Ed.2d 51 (2009), is in accord. In that case, if Congress were to pass a law prohibiting persons the court was presented with a conflict between under the age of 21 from driving, a state law au- state and federal law that the dissent characterized thorizing persons over the age of 16 to drive and as follows: “The FDA told Wyeth that Phenergan's giving them a license to do so would be preempted. label renders its use ‘safe.’ But the State of Ver- FN7 FN6 348 Or. at 180–81, 230 P.3d at 530–31. The mont, through its tort law said: ‘Not so.’ ” Id., majority would be correct if Congress had authority 129 S.Ct. at 1231 (Alito, J. dissenting). Neverthe- to make such a law and if Congress expressly pree- less, the majority upheld the state law. Although mpted state laws allowing persons under the age of *202 the two laws imposed contradictory standards, 21 to drive or indicated an intent to occupy the the state law was not preempted. field. However, without such statement of Congres- sional intent, implied preemption does not necessar- FN6. The FDA had also adopted a regula- ily follow. As a sovereign state, Oregon has author- tion declaring that “certain state law ac- ity to license its drivers and to choose its own age tions, such as those involving failure- requirements. If Oregon set at 16 years the minim- to-warn claims, ‘threaten FDA's statutorily um age for its drivers then, the Oregon driver li- prescribed role as the expert Federal censes it issued would give 16–year–olds only state agency responsible for evaluating and reg- permission to drive. *203 The Oregon law would ulating drugs.’ ” Id. at 1200. not be preempted, but neither would it protect

FN9 16–year–olds from federal prosecution and liability. 2007 New Mexico Laws ch. 210, § 7 (SB 523).

FN7. As I read the majority opinion, a FN8. Memorandum from David W. Ogden, state law providing that Oregon would not Deputy Attorney General for Selected punish drivers between the ages of 16 and United States Attorneys on Investigations 21, as opposed to permitting those persons and Prosecutions in States Authorizing the to drive, would withstand a Supremacy Medical Use of Marijuana (Oct. 19, 2009) Clause challenge. (available at http:// blogs. usdoj. gov/ blog/ archives/ 192) (accessed Apr. 6, 2010) As a result, an Oregon legislature considering (emphasis in original). whether to enact such a law could decide, as a practical matter, that it would **543 not be in the in- FN9. New Mexico's “Lynn and Erin Com- terest of its citizens to grant licenses that could res- passionate Use Act,” 2007 New Mexico ult in federal prosecution. Suppose, however, that Laws ch. 210, § 7 (SB 523), requires relev- Congress had passed the federal law that the major- ant state agencies to develop rules that ity posits, but that federal officers were not enfor- “identify requirements for the licensure of cing it. Or suppose further that the federal govern- producers and cannabis production facilit- ment had announced a federal policy decision not ies and set forth procedures to obtain li- to enforce the federal law against “individuals censes,” as well as “develop a distribution whose actions are in clear and unambiguous com- system for medical cannabis” that compliance with existing state laws” permitting minors ports with certain requirements. The New to drive. Could Oregon not serve as a laboratory al- Jersey “Compassionate Use Medical lowing minors to drive on its roads under carefully Marijuana Act,” S119, Approved PL 2009, circumscribed conditions to permit them to acquire c. 307, § 7, provides for the creation of driving skills and giving Congress important in- “alternate treatment centers, each of which formation that might assist it in determining whether its policy should be changed? Is not one of feder- “shall be authorized to acquire a reason- alism's chief virtues that “a single courageous State able initial and ongoing inventory, as de- may, if its citizens choose, serve as a laboratory; termined by the department, of and try novel social and economic experiments marijuana seeds or seedlings and without risk to the rest of the country”? See New paraphernalia, possess, cultivate, plant, State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 grow, harvest, process, display, manu- S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dis- facture, deliver, transfer, transport, dissenting) (so contending). tribute, supply, sell, or dispense marijuana, or related supplies to qualify- In the case of medical marijuana, the federal ing patients or their primary caregivers government in fact has announced that it will not who are registered with the department enforce the Controlled Substances Act against pursuant to section 4 of * * * this act.” “individuals whose actions are in clear and unambiguous compliance with existing state laws permit- The Maine Medical Marijuana Act FN8 ting the medical use of marijuana.” Oregon is provides for the creation of “nonprofit not the only state that permits the use of medical dispensaries” which are authorized to marijuana, and at least one state is considering rules dispense up to two and one-half ounces to “identify requirements for the licensure of produ- of marijuana to qualified patients. Me. cers and cannabis production facilities.” New Mex- Rev. Stat. title 22, § 2428–7. In Rhode ico's “Lynn and Erin Compassionate Use Act,” Island, “The Edward O. Hawkins and

Thomas C. Slater Medical Marijuana quirement of reasonable accommodation. Or, to be Act,” provides for the creation of even more careful, the legislature could state, in “compassion centers,” which “may ac- chapter 659A, the conditions that a medical quire, possess, cultivate, manufacture, marijuana user must meet to be entitled to the pro- deliver, transfer, transport, supply or dis- tections of the Oregon Disability Act without any pense marijuana * * * to registered qual- reference to the Oregon Medical Marijuana Act. If ifying patients and their registered the legislature took either of those actions, reason- primary caregivers.” R.I. Gen. Laws § able accommodation would not be tied to the provi- 21–28.6–12. sion of the Oregon Medical Marijuana Act that the majority finds to be of “no effect.” *204 As I explained at the outset, the federal government has no power to require that the Ore- Although such changes could secure the right gon legislature pass state laws to implement or give of reasonable accommodation for disabled persons effect to federal policy choices. One sovereign may who use medical marijuana in compliance with make a policy choice to prohibit and punish con- Oregon law, the changes would not eliminate the duct; the other sovereign may make a different questions that the majority's analysis raises about policy choice not to do so and instead to permit, for the validity of other provisions of the Oregon Med- purposes of state law only, other circumscribed ical Marijuana Act that use words of authorization conduct. Absent express preemption, a particular or about the reach of Oregon's legislative authority. policy choice by the federal government does not If the majority decision simply represents a formal- alone establish an implied intent to preempt con- istic view of the Supremacy Clause that permits trary state law. A different choice by a state is just Oregon to make its own choices about what con- that—different. A state's contrary choice does not duct to punish (and thereby to permit) as long as it indicate a lack of respect; it indicates federalism at phrases its choices carefully, perhaps my concern is work. overstated. But as I cannot imagine that Congress would be concerned with the phrasing, rather than The consequence of the majority's decision that the effect, of state law, I not only think that the ma- the Controlled Substance Act invalidates ORS jority is wrong, I fear that it wrongly limits the le- 475.306(1) is that petitioner is disqualified from the gislative authority of this state. If it does, it not only benefits of ORS 659A.124, which imposes a re- limits the state's authority to make its own medical quirement of reasonable accommodation. The ma- marijuana laws, it limits the state's authority to en- jority states that it does not decide “whether the le- act other laws that set standards of conduct differ- gislature, if it chose to do so and worded Oregon's ent than the standards set by the federal govern- disability law differently, could require employers ment. Consider just one statute currently on the to reasonably accommodate otherwise qualified books—Oregon's Death with Dignity Act. **544 disabled employees who use medical marijuana to treat their disabilities.” 348 Or. at 172 Oregon's Death with Dignity Act affirmatively n. 12, 230 P.3d at 526 n. 12. Indeed, different authorizes physicians to use controlled substances FN10 words could be used for that purpose. For instance, to assist suicide. In *206Gonzales v. Oregon, the legislature could state expressly in ORS chapter 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 659A that disabled persons who would be entitled (2006), the Supreme Court considered the validity to the *205 affirmative defense set forth in ORS of a federal Interpretive Rule that provided that 475.319 (a provision the majority does not find “using controlled substances to assist suicide is not preempted) are not disqualified from the protec- a legitimate medical practice and that dispensing or tions of the Oregon Disability Act, including the re- prescribing them for this purpose is unlawful under

the [Controlled Substances Act].” Id. at 249, 126 DURHAM, J., joins in this opinion. S.Ct. 904. The Supreme Court decided that the In- terpretive Rule was invalid and did not decide Or.,2010. whether the federal rule preempted the Oregon act. Emerald Steel Fabricators, Inc. v. Bureau of Labor But if the federal government were to adopt a stat- and Industries ute or a valid rule to the same effect, would this 348 Or. 159, 230 P.3d 518, 159 Lab.Cas. P 60,980, court hold that, because the Oregon Death with 23 A.D. Cases 1, 60 A.L.R.6th 669 Dignity Act grants physicians permission to take END OF DOCUMENT actions that federal law prohibits, the state statute is preempted and of no effect? If so, the court would invalidate a state law using an analysis that at least three members of the Supreme Court have recognized to be faulty:

FN10. ORS 127.815(1)(L)(A) authorizes physicians to dispense medications for the purpose of ending a patient's life in a humane and dignified manner when that patient has a terminal illness and has satisfied the written request requirements that the Act provides. ORS 127.805(1) authorizes a terminally ill patient to “make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with [the Act].”

“[T]he [Interpretive Rule] does not purport to pre-empt state law in any way, not even by conflict pre-emption—unless the Court is under the misimpression that some States require assisted suicide.” Gonzales, 546 U.S. at 290, 126 S.Ct. 904 (Scalia, J., joined by Roberts, C.J. and Thomas, J., dissenting) (emphasis in original).

I do not understand why, in our system of dual sovereigns, Oregon must fly only in federal formation and not, as Oregon's motto provides, “with her own wings.” ORS 186.040. Therefore, I cannot join in a decision by which we, as state court judges, en- join the policies of our own state and preclude our legislature from making its own **545 independent decisions about what conduct to criminalize. With respect, I dissent.

KCBA Ethics Advisory Opinion on I-502 & Rules of Professional Conduct October, 2013

The King County Bar Association proposed on October 4, 2013, given unresolved attorney ethics questions after Washington State voters approved Initiative 502 (marijuana legalization), that the Washington State Supreme Court consider amendments to the Rules of Professional Conduct. While that RPC proposal is under consideration by the Court, the KCBA Board of Trustees has adopted an ethics advisory opinion to assist the bar in the interim as attorneys consider practice issues under the existing RPCs. Questions presented: 1. Should an attorney who assists clients to engage in conduct that is permitted by I-502 and its implementing regulations, but is forbidden by federal law, be subjected to professional discipline in Washington?

2. Should an attorney who has an ownership interest in or is employed by a marijuana dispensary and/or occasionally possesses marijuana, both in a manner expressly permitted by I-502 but forbidden by federal law, be subjected to professional discipline in Washington? Background and hypothetical facts On November 6, 2012, Washington voters approved Initiative 502 (“I-502”) by a margin of 55.7% to 44.3%.1 When undertaken in proper compliance with Washington law, the manufacture of marijuana, sale of marijuana, and possession of marijuana in certain amounts by adults is no longer criminalized by state law.2 Colorado passed a similar law in its November 2012 general election.3

1 Washington Sec’y of State, November 2012 General Election Results, Initiative Measure 502 Concerns marijuana, available at http://vote.wa.gov/results/20121106/Initiative-Measure-No-502-Concerns-marijuana.html (last accessed Oct. 6, 2013). 2 I-502 §§ 4(1)-(3); 20(3). The Washington State Bar Association does not offer ethical opinions that address the substance of the underlying law, and this KCBA opinion follows that practice. See, e.g., WSBA Advisory Op. 2107 (2006) (noting that the Committee does not provide statutory analysis or interpretation, but including statutory references in order to aid discussion of potential professional ethics issues). References to the substance of I-502 or its regulations is intended to aid in discussion of the law’s effect on an attorney’s ethical responsibilities, and not to opine on the substance of the law. 3 See Colorado const. amend. 64 (adding recreational use amendment to Article 18 of Colorado constitution). I-502 required the state liquor control board to adopt rules regarding the procedures and criteria necessary to implement several goals of the new initiative.4 By law, the liquor control board must do so by December 1, 2013, and the agency’s most recent update says that it is on track to implement the regulations by that date.5 Meanwhile, on August 29, 2013, Deputy Attorney General James M. Cole issued a memorandum for all United States Attorneys regarding enforcement under the federal Controlled Substances Act (“CSA”) in light of new state laws such as Washington’s.6 The “Cole Memorandum” stated that the goals of federal marijuana policy had typically been addressed by state enforcement when consistent with eight important federal goals, including keeping marijuana out of the hands of children and keeping marijuana proceeds out of the hands of criminal organizations.7 The Cole Memorandum recognized that, when a state regulatory system accomplishes these goals, “consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.”8 The same day, Attorney General Eric Holder informed the governors of Washington and Colorado that the Department of Justice would not immediately file suit seeking to invalidate the states’ respective recreational marijuana laws.9 The CSA continues to criminalize the sale and possession of marijuana,10 as the Cole Memorandum expressly recognizes.11 Attorneys in Washington, therefore, may face ethical dilemmas based on this inconsistency between federal and state law. The remainder of this advisory opinion considers two hypothetical attorneys: Attorney A, who assists a client with the panoply of legal issues associated with setting up a marijuana distribution business in compliance with Washington law, and Attorney B, who maintains an ownership interest in a marijuana dispensary and occasionally possesses marijuana (and does both in full compliance with Washington law).

4 I-502 § 10. 5 Id. 6 Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (“Cole Memorandum”). 7 Id. at 1-2. The eight recognized federal law enforcement priorities recognized in the Cole Memorandum are: (i) preventing distribution to minors; (ii) preventing marijuana revenue from reaching criminal organizations; (iii) preventing the diversion of legal marijuana to states where it is illegal; (iv) preventing state-authorized marijuana activities from serving as a front for other illegal activity (including trafficking of other drugs); (v) preventing violence and the use of firearms related to marijuana commerce; (vi) preventing drugged driving and other adverse health consequences related to marijuana; (vii) preventing the growth of marijuana on public lands; and (viii) preventing marijuana possession or use on federal property. 8 Id. at 3. 9 News Release, Joint Statement from Gov. Inslee and AG Ferguson regarding update from AG Ferguson on implementation of Washington’s voter-approved marijuana law (Aug. 29, 2013), available at http://www.atg.wa.gov/pressrelease.aspx?id=31361. 10 21 U.S.C. § 841(a)(1); 21 U.S.C. § 812(c). 11 Cole Memorandum at 4 (“This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws related to marijuana, regardless of state law. Neither the guidance herein nor any state of local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.”). Analysis A. Ethical implications of offering client counseling and advice regarding I-502 Will Attorney A be in violation of his ethical obligations if he assists a client in complying with I-502, in a manner that will necessarily violate the text of the CSA? The KCBA believes that subjecting an attorney to professional misconduct on this basis would be wholly inconsistent with the purpose of the rule and the public policy of the state.12 Washington Rule of Professional Conduct (“RPC”) 1.2(d) states: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. While the latter portion of the rule offers a safe harbor for “discuss[ing] the legal consequences of any proposed course of conduct” and assisting the client to “make a good faith effort to determine the validity, scope, meaning, or application of the law,” this safe harbor may not offer sufficient protection to those attorneys who wish to actually assist a client in complying with I- 502 and its regulations. To be sure, an attorney could advise a client on the relationship between I-502 and federal law and the likelihood of enforcement of federal law as set forth in the Cole Memorandum, which resembles an attempt to determine the meaning and applicability of existing law. A client, however, would normally demand much more assistance in navigating the complicated regulatory field of I-502. A client who requests help with I-502 compliance, such as Attorney A’s client, cannot honestly be said to seek only to determine the reach of I-502 or the CSA: Attorney A’s client seeks to form a marijuana distribution business.13 If Attorney A restricted his advice to an explanation of the interplay of I-502 and federal law, he might be ethically safe, but he would not be helpful to his client. This opinion must, therefore, address the substance of RPC 1.2(d), namely the provisions against “counsel[ing]” or “assist[ing]” a client in conduct that the lawyer knows is criminal. While the rule on its face does not seem to distinguish between violations of state and federal law, the analysis is complicated by the novel circumstance where federal and Washington laws conflict as they do here. Three state associations have discussed the analogous situation where an attorney sought to assist clients with complying with state medical marijuana laws, arriving at different conclusions. The Maine Professional Ethics Commission concluded in 2010 that representing or advising clients under Maine’s Medical Marijuana Act would “involv[e] a significant degree of risk which

12 This advisory opinion is limited to conduct that is expressly permitted by positive state law, or for which state law expressly provides an affirmative defense. This opinion does not address violations of the professional rules premised solely on the violation of federal law, where state law is silent or did not form basis for the relevant underlying misconduct. Indeed, it is likely that conduct of the latter type will frequently be the proper subject of attorney discipline. See, e.g., In re Disciplinary Proceeding Against Smith, 170 Wn.2d 721, 246 P.3d 1224 (2011) (affirming attorney’s disbarment for conviction of conspiracy to commit federal securities fraud and wire fraud). 13 See Sam Kamin and Eli Wald, Marijuana Lawyers: Outlaws or Crusaders?, 91 Oregon L. Rev. 869 (2013) (addressing this argument) (hereinafter “Outlaws or Crusaders?”). needs to be carefully evaluated.”14 The Commission recognized that the federal government had deprioritized enforcement of the CSA in medical marijuana cases, but reasoned that Maine’s rule “does not make a distinction between crimes which are enforced and those are not.” As long as the federal law and Maine’s RPCs remain unchanged, attorneys needed to determine “whether the particular legal service being requested rises to the level of assistance in violating federal law.” If so, the attorney risks violating RPC 1.2. The Connecticut Bar Association Professional Ethics Committee reached a similar conclusion to that of the Maine commission: while an attorney could safely advise a client on the requirements of state and federal marijuana law, advice and services in aid of functioning marijuana enterprises could run afoul of RPC 1.2(d).15 Like the Maine commission, the Connecticut committee reasoned that “[w]hether or not the CSA is enforced, violation of it is still criminal in nature. . . . Lawyers may not assist clients in conduct that is in violation of federal criminal law.” In 2011, however, the State Bar of Arizona reached the opposite conclusion.16 Unlike the Maine and Connecticut opinions, the Arizona opinion declined to read its Ethics Rule 1.2 to forbid attorney assistance regarding conduct prohibited by the CSA yet compliant with state law. To do so, the bar reasoned, would “depriv[e] clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits.” In addition to recognizing the desirability of making legal services available, the bar noted that Arizona’s act had not yet been held invalid or preempted by federal law. The bar advised that an attorney could ethically perform legal services related to the state’s Medical Marijuana Act so long as (i) the conduct was expressly permitted under the Act, (ii) the lawyer advised the client on potential federal law implications and consequences, and (iii) the client, having received full disclosure, elected to proceed with a course of action specifically permitted by the Act. The KCBA favors the State Bar of Arizona approach, and would urge this state to follow the same approach regarding client advice and counseling about compliance with I-502. While the KCBA does not agree with all components of the Arizona opinion,17 its emphasis on the client’s need for legal assistance to comply with state law accurately reflects the reality that Washington clients face in navigating the new Washington law. The initial proposed implementing regulations for I-502, for example, have added 49 new sections in the Washington Administrative Code encompassing 42 pages of text.18 These regulations are consistent with I- 502’s express goal of removing the marijuana economy from the province of criminal organizations and bringing it into a “tightly regulated, state-licensed system.”19 In building this complex system, the voters of Washington could not have envisioned it working without

14 Maine Prof. Ethics Comm’n, Op. 199 (July 7, 2010). 15 Conn. Bar Ass’n, Prof. Ethics Comm’n, Informal Op. 2013-12, Providing Services to Clients Seeking Licenses under the Connecticut Medical Marijuana Law (Jan. 16, 2013). 16 State Bar of Az. Ethics Op. 11-01 (Feb. 2011). 17 The Arizona opinion emphasizes that no court has held its state’s act to be invalid or preempted. To the extent that this suggests that the effectiveness of the CSA may be diminished or affected by the contrary state law, or that a court would need to hold otherwise before it was clear, the KCBA does not make such an assumption. See generally Alec Rothrock, Is Assisting Medical Marijuana Dispensaries Hazardous to a Lawyer’s Professional Health?, 89 Denver U. L. Rev. 1047 (2012) (criticizing Arizona opinion’s discussion of interplay between state and federal law as “a misunderstanding of federalism,” and stating that “the federal law remains unchanged and in full force in every corner of Arizona”). 18 WSR 13-14-124. 19 I-502 § 1. attorneys. As the State Bar of Arizona recognized, disciplining attorneys for working within such a system would deprive the state’s citizens of legal services “necessary and desirable to implement and bring to fruition that conduct expressly permitted under state law.” While the Maine and Connecticut opinions may be more faithful to the plain text of their rules, both founder on addressing the importance of legal assistance to those who wish to engage in the conduct that state law permits. Moreover, neither opinion fully grapples with the diminished federal desire to enforce marijuana activities done in unambiguous compliance with state law. Under the current federal directive, the CSA will not ordinarily be enforced against an individual or business when the activity does not threaten federal enforcement objectives, which may be demonstrated by “the operation [being] demonstrably in compliance with a strong and effective state regulatory system.”20 Because federal enforcement policy is tied to compliance with state law, an attorney advising a client on complying with I-502 and the Cole Memorandum’s objectives would be helping a client avoid federal prosecution, even if technically counseling or assisting the client to violate the letter of federal law. This state should reject a formalistic reading of RPC 1.2(d) that would prohibit such conduct. Even if officials in this state were to follow the Maine and Connecticut opinions and find a technical violation of RPC 1.2(d) under the circumstances presented here, a separate rationale should counsel against attorney discipline: estoppel. Assuming that federal law could provide the predicate to a violation of Washington’s RPC 1.2(d), attorney discipline is state-based, and the state should interpret its own rules in accordance with the state policy that favors strong regulation of legalized marijuana and, by inference, attorney assistance in this regime. Now that the state has established such a regime, it has no legitimate interest in disciplining attorneys who operate within the confines of that same regime.21 The proper scope of RPC 1.2(d) as applied here is a novel question, and the KCBA hopes to avoid such close determinations by amendments to the text of the rule to make clear that Attorney A’s conduct is permitted by the RPCs. In the meantime, however, the KCBA believes that an attorney who fully advises the client of the federal law implications of I-502 and the CSA (including the policies reflected in the Cole Memorandum) may assist the client, so long as the counseled or assisted conduct is expressly permitted by I-502. B. Ethical implications of personal conduct in compliance with I-502 Will Attorney B commit professional misconduct solely by her ownership interest in a marijuana dispensary and her personal possession of marijuana? Assuming she is compliant with I-502, the KCBA believes she would not, as her actions are unrelated to her honesty, trustworthiness, or fitness as a lawyer. RPC 8.4(b) states that “[i]t is professional misconduct for a lawyer to: . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]” Attorney B would face a similar dilemma to Attorney A, because her ownership interest in a marijuana dispensary and her personal possession of marijuana may be permitted in Washington, but remain technically “criminal acts” under the CSA.

20 See Cole Memorandum at 3. 21 See Marijuana Lawyers: Outlaws or Criminals, supra note 13, at 929 (arguing that state that legalizes marijuana should be estopped from disciplining lawyers who act within this framework). Regardless of the criminal nature of the acts, however, Washington requires “some nexus between the lawyer’s conduct and those characteristics relevant to law practice” prior to imposing discipline for violating a law.22 The Colorado Bar Association Ethics Commission found the absence of such a nexus to the mere use of medical marijuana in Formal Opinion No. 124, concluding that such use would not violate the Colorado rule without “additional evidence that the lawyer’s conduct adversely implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Here, absent other factors, there is no nexus between Attorney B’s conduct that is permitted by I-502, and her honesty, trustworthiness, or fitness as a lawyer. If Attorney B’s business activities or personal possession of marijuana made her unfit to practice, or caused her to violate other provisions of the RPCs, she would properly be subject to discipline under other RPC provisions. Although the KCBA believes that the existing ethics rules regarding an attorney’s personal conduct with respect to marijuana provide clearer protection to attorneys than the existing rules regarding client advice, it has requested amendments to the RPCs and comments to make clear that Attorney B’s conduct, standing alone, would not subject her to professional misconduct. C. Advisory nature of opinion While the KCBA does not believe that an attorney should be subjected to professional discipline for engaging in the conduct described in this opinion, like the WSBA, its opinion does not have the force of law. The Washington Supreme Court is the ultimate arbiter of whether an attorney’s conduct violates the RPCs.23 Indeed, given the disagreement between professional ethics tribunals in other states and the novel nature of issues presented by I-502, an attorney must proceed with caution in undertaking the activities addressed in this opinion.

Approved by the King County Bar Association Board of Trustees, October 16, 2013.

22 Matter of Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 768, 801 P.2d 962 (1990) (attorney could not be disciplined under RPC 8.4(b) following vehicular homicide, because no nexus existed between that crime and the lawyer’s fitness as an attorney). 23 Wash. State Bar Ass’n, Advisory Opinions: About Advisory Opinions, available at http://www.wsba.org/Resources-and-Services/Ethics/Advisory-Opinions (last accessed Oct. 6, 2013) (“[T]he Board recognized the Washington Supreme Court’s opinion in In re Disciplinary Proceeding Against DeRuiz, 152 Wn.2d 558, 99 P.3d 881 (2004), which emphasized that ethics opinions issued by the Bar Association are advisory only, and that the Court is the ultimate arbiter of the Rules of Professional Conduct.”). LLL eeee eee e 44444 4444444 444 ee4r L4r e4e e 4 4 ee 4 444d 444d r 44de

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n: nM: nn::nnn M:nnnnnnnnMnnMnMnnn:nnM:nnnn n nnnnn:::M: n n: n :nn::: : n -:Mn:nnnn nnnnn::M:n: : :nMnn :nnnnnnnM:nn :nnnnn nM:nnMMM:nnnnnnnnnMn n: nn n nnnnnM:n:nM:nMn n nnMn:nnnn nnnM::nMnn n:MnM: :nMn: : ::nM:nn nnnn nnM n:nnn: nnnnM n nnM:nn :n:Mn nMnn:: nn::: :n:nMn n: nnnM:nnn:a:snn M n :: :n ::nn:nMn:MnMn:nnn n: nn nnnnn:nnn: nM: nnMnnnM:n :M: :Mn:n :nMnM n:::n:MnM n nnnnn:nn: n nnnnMnnnnM nM:nn:MnMn:n ::nnnnnn:nnnnMnnn:nM n:n nnn:nn nnnn nnnMnnnnnnM:n :M:nM:nn n:nnMnnnMn n n: nM: n nnnn:MnnnnM: nnnnn::nnn:nMn n: nnn:nn nnnnMMn ::nnM: nnnn :n:MnMnnM:nn: nnnM n :Mn :Mn n nnnnn:nnn: nM: nn:n Mnnn:nnnM:nn:nnnnnn nn n: nnnnMn n nnn:Mnn :: n:nnMnM n:M:n::nnnn n nnnnn:nnn: nM: nn :nn:nM n :nn nnn:Mn ::nn : nM:n :M:nM nM:nn:MnMn:nMn :nnnn: n :nn :nMn:MnMn:nnnnn: : :nn::Mn: M:n nnnnM n:n: :nnnnn:M: nn:nMn n:nM n :nnnM:n:nn nnnn: nM: nn:n: n:M:n:

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n e ee reree MMnnnn:nnM :nnnnM: :n:n n n nnnnnM: nn nnnnnn n:::nn nn n n nMnn n:::nMM nn n MnnM n :nn nnn:nnn:M::M nMMM8:n :nMnnnMn::n::n nnM:nnnn nMn:n nnn:: M::nnM n :nnnM:nMn nnnnnn:n n:n::nn nM nnn:nMn :n:n: n: nnnnnM:nMnM:nn:n:Mnn:n :nnnnn nn nn :n:n:::nnMnnnnnn nnnn:nn:nnn:n n n::n : ::! nn n nnn:nMnn:: nn:n:nnM:nMnM:nnnnM: nn:nM nnnnnnMn:: ::nn:n nnnn nM n nn nnMnM: n n:nnn::n n:n:n :nM: n nnn nnM:nn:nM:::nM: nnn M:n nM:nnsMnMn: nn:n:nnnM nnnn nn ::nnn:nnM:nn :nM:nn:nnn MnM: n nn n nn n n nnnnnMnn:: nn n::nnn nnM:nn nnnM: nn nnnnn n nnMnn:nM nnnnnnMnn: :nnnn:nM nn n :M: n n :nM:::nM: n nnnnn :n: :n:n:nnn :n: n :nnn:nn:::nn: nnM nM:nn:MnMn: n :M:n::::MnnM:n:n: nnnnnnnM:nn n:n :MnnM n nn n nn:M:nn:M:M ::nn:M: n:Mn n n nn :nn:n:n n n nMnn n:::nMM n n ::nnn nn:n:MnMnnn:nn:n:::nnnMn:nn :n : n nM: : nM: n n: M8 nn n sMnMn:n nnnnM nM nnnnM:nn:n: n:n:nMnnnn::nn::Mn:nnn nnnn nn :M:nM:nn n:M:M:M: nnnnnn:n :nnnn Mnnn:nn nMnn:: nnnM: :nn nsn M: nnMMn nM:nn n:M:M:M: nnnn:nnnnMn:nM:nnn M: n:n:nn :: :nM:nnsMnMn:n nnn Mn nnMnMn n n::n n M

n ee nnrsss M8nnnn:nnM :M:Mn :nMnM:nn n nnn:M:Mn :nMnM::n nMnn n n n:nn:M:Mn :nMn: :: :n: n :nnn :nnnnn :n :n:: n n::n n Mnnn:::n: 2M

n esne esnse M8nnnn:nnM n nn: :Mn nnnnM:nMn nnM:nn::n : : n:nnn:n:nnM:nn::n n nnnnn Mnn :nM:nn:nn:Mn::Mnnn::n ::n n:n :nMnnn::MM:nnn nnn: n:n nMn : n nn :nnnn::nn nnMnM n::nnnnnnnn nMn :nM n::nnn: nnM:n M: ::nnn:n nn::n:nn nnn : nn n Mnn nnn:n nnM n:: nn:nnnnnM:nn: :: :n:nM:nnnnnn M n n::n n Mnnn:::n: 2M

n e ene teeseee MMnnnn:nnM nnn nM: :nn nnnnnn:::M n:nnn:n::nM:nn M:nMnn:M:M:nn M nnn:nMnnMnM: n nM:nnnnnnnn nn nnnnn: :nnn nn:n MnM:n:nn::::n:nM n: n:n nMn : n nn ::nnn Mn:n nn:nnnnn::nnM n n nnM:nn :nMnnn n nnn n::n n Mnnn::n M

n esne esnse MMnnnn:nnM an:n:n nM: :nn nnnn:nn n M:nnn::n :n:nMnn nnnnn:n:nMnn nnM: n: nn n:Mn:nnnnn :n nM:nn:nn::nnnM :n :n::-:nMn:n:n:Mn: M: n:nn: :Mn:nn :nMn nnMn:nn :n::n:n n :nn :nnnMnnn:nn:MnnnM:nn: nn nn n::n n M n n esnes M8nnnn:nnM nnnn :nMn n:::nMM n:n nn : nn: :nn nn:MnMn:n::nM:nn: :nnMnn::n n nnnnn:::n n :nnn :Mn:Mnn:M:M n nnnn n::n n :n ::nn:nn::n:n :nMnM:nn nnnnn:n::nMnM n :MM:nMn nnnnn:nMn n:n:n : nM: nnMn:n nnnnn:nMM:nMn:MnMnnnnnn : n:nM nnnnnnM:nnn :nnn :nMnM nn nnnnn: nM n:nnn nn:M nn n :nn nM:n::nMnn nn nMn nM: nnM nM:nn:MnMnnnnnn: n:n:n n:n :::n nM:n:nnM:nnMn M:n:nnnnMnn::: nnMn nM: nn :: :nn:n nn:n nn:nn n n: n :nn: nn:Mn n nn:n:n nn nnnMM n nM:n:nn:n nnn:n:nn:nn:MnMnnnnnn: n:n Mn n:n :::nnM:nnn :Mn nn:M:nnM n n:nn:nnnM n n:MM::pp :Mn: nMp:n pM :n n n :::nn n n:n:n:n nnn nM:nn n :MnnnMnn::: nnMn nM: nn:n:Mnn:n:nnM:nnnnM: n nn::n:MnMnnMn nM: nn:n:Mnn:nnnnnn nnnnnMnn::: nnM:nnnM:nn sn Mn nM: nn:n:Mnn n n M :Mn nn:M:n::n nnnMnnn:nn:n: n nM:nnn::: Mnnn:nnM nnnnnMn:n:Mnn:nM nM:nnn :Mn nn:M:nnM nnn nnMMMMnM n MMMMnM:nn:nn nnMnMnn nn::n nn:M:n:nnM:nn:nnn:n nM:nnn :Mn nn:M:nnM nMnn n n nnM nM n M nnMnM:nn :nnnnM:nnnM:nn:nn nnMnMnn nn::n nn:M:n:nnM:nn:nnn:n nM:nn:nn:Mn nn:M:nnMM n nM:nn: :::nM: nn::: Mnnn n nn M nM n n:nnM n M: nn :nnnnn :Mn nM:nn nn:M:n::: Mnn n n nnM:nn:n: nnnnM nM:nnn:nnnnnn nn:M:n n n nn nnMnM:::nnn-n::Mn:::M: nn n nn:M:nM n nM:n:n n :nnMn nM: nn:n:Mnn:nn::Mn :nnMn n nn n n:nnnMn::nn :nMn Mn nM: nn:n:Mnnn ::nn:nnnn ::nMnnn ::M: n! n::n n Mnnn:::n: 2M

n esne esnse M8nnnn:nnM nnMnnnnn :Mn:nnnM::nn :M:nn :nn:n:Mn:nnMnn n n :M:nnnMnnnnM nM:nnnnM: :nnM: :M: nn nn :n:nnnM:nn n nnn:n nnn::nMn nnnnn:n nMn :n nnn :nnMn nnn nn:nn:nnM:nn nnn nMnnnM: nnM nn:n:nMnM:nn:n:MnMMn nnnn:nnnnnMn:nnn :M n n::n n Mnnn:::n: M

n n esnes M8nnnn:nnM nnn MnM n nn:::nnn :M:nM:nMnMnnnM:nMn:n:Mnnnn :nnnnM: n nnnnn:nn::nnn:Mn n:nn nn:nn:nnM:nnnM:nnn nn M: nn n nnn:nn nnMn nM:nn nnnnn:n::nMnM n : nnnM:nM n:Mnnn:nnn:n nn : n nMn ::nM:nnMnnnM:nMn n:Mnn:n n Mn:: ::nn:nnn:n Mnnn : :n:: nn Mn:Mn n::n n nnn:::n: 2M

n esne esnse M8nnnn:nnM n :nn: n:n nn :n:: nnM:nn nnn nnnnn:nn ::nn:nM nnn: nM: nn:n nn:n::nnnn :nn M:nn :nnnnMn:n:Mnn n :nnnnnn nnnnM:nMn: : ::n: :nn nnnnn:n :nn:nMn: nM:nn nn:n :nnnM:nnnnnnn Mn:nn n:::nn nn :M:nM:nnnn ::nnnnnM:n nM:n:nnMnnnM: n nn::n:ns:n :n:nnn: nM: nn-n: nM nnnnnn:M:nnnM:nnnnnn:nMn :nn nM:nn: : :n :n:nM n: nnnM:nn:nn nnMnMnn n:M:nnnM:n :n:: :nnn nns:n :n:n n: nM: nn :nn : n: n nnMnnn:n nn:: ::::nnn-nM nnnnnn:M:nnnM:n:nnnn:n Mn MnnnMn ::nnnnn :nnMnM nn:MnnnnM: nn: : : n :nnnn n:Mn-n:n n:Mnn: : ::n Mnnnn:nn:nnn:n n:Mnn :n:n ::n:: nn :n nnn: :nn :nn:nMn nn :nMn nM:n::n::n n::nnn n:::nnnMnn:n:n M n :nnnnnnnnn: nn:n:Mn:nM:nnMMn :nnnM nM:nnMn nnn nn:nnM:nMn::nnnM:nnnnnM nM:nn :MnMn ns nnM:nn:nM:::n::nnnM nnM::nMnn:n:nn s an :nn:nM n::MnM:nnnM:nnn:: ::n :Mnn::n:nn nnnM:nMnnnnMMMn:nMnnnnn:n:n : n :::n nn: : ::M n Mnnn:n n n::nn nn ::nnnnnM:nnn ::n:nMn::nnnnn:n n: :n:n n n n nnM:nn:nnMn nM:nn annM:nMnn:n : :nn nnn::n::nnnMn nn:MMnnn nn :: :nM:nnnnnnn:n:nn M MMM n nnnn :nM::n n nn nn::n:nn : nn:nnnn:nnn :nnn :nn:nn n n n::n n nnn:::n: M

n n esnes M8nnnn:nnM nn :n:: nn:nn n n:nn :nnnnn:nnn nnnn n: n:n:n:M: nnnnnn :nnnn :nnnnn :nnnn: nM: nn:n:n:Mnnn:: n :nn n:nn :n n :n:n:n nnn M:nn:n:MnM nnnnn:n:nn nn: ::nnn: nM: nn:nnnnn:n:nn n n:nnnnnnnn nn:nnnn:nnnM n :nnn nM::n n nM:::n n::n : : n::nnM::n n nM:nn::nM:nn n:M:Mnnn : :MnnnMnn :n:n:n:nnnnnnn:n:nnn: : :nn::Mn: M: n: nnnM:nMn nM:n:nnM nM:::nnnn n :nnnnnnnnnn::::nM: n:n nM:nnnnMnnM:nMnM: nn M:nn::::: nnn nnnn:nn :nnMnn :n n n :nMn::n:n::nn:nM nMMnnnnn:n nM n ::M nn s n n:n :n:n:nMnM nnn : :MnnnMn: nMnnnnn:nnM n n::n:n s n:Mn n nnnn::::: :nn :n:n:nMn8 nnn : :MnnnMn: n nn: M:n n:n:n M n n:nn: :n : :nnnM n:n:nMnn :nnMn n n nnnnn:nMnnnM:nn :n ::nn n nnnnn n :nMnM n:n nnn:: :nnnn::::nM: n: nM:nnn:Mn::n nn :n:Mn:nnnn:Mn:n n nnn n n nnnnn:nMnnnM:nnnnnnn::::n nnn nnn Mnnn::nnnn n nnnMnnn::nnnn nn :nnnM n::::: nn:n:M: nM:nnn:Mn::n nn :n:Mn:nnnn:Mn:n n nnn nn n nnnnnn:nMnnnMnnn ::nnnnnM:n nnnnn nnnn nnnnnMnnnnn::nnnn ::nnnn n:nnM nM:nnnnn::::nM: n:n :M::nnnn: nM: nn:nn n n: ns: :n nn ::nnnnnM:nnnnn nnMn:n:nnn Mnn: nn:n: ::M: n n::MnMnnnnn::nnM:nnn nnnnn nnn :nnnM nnn: ::M: nn::::: n: n:M:nnnnnnn:n::n:n:n nn nn: nM: n n -M

n esne esnse M8nnnn:nnM nMn:M:Mn:nn n::n:n s n nnMMnnnnn: nnnnn :nn:nn nnn:M:Mn:nn:::M:M:nn n nnn:nn ::n:n n::nnn:nMnM:::nn::Mn: M :nn: : ::M:n: n nnn Mn::nnn n: :Mn:nnnn :nn:nM n::Mn n:n nnn :nn:nn nnn:n n:nMnnMn n::Mn:::M: n n: nnn :nM:nMnnnnnn :nMn::::Mn nnnnnn::nMn n::Mn:::M: nn:nn :n::M:n:n:n:nnn nn::: n Mnnnnn n nnn n::nM:nn n:: nn:nn :n:n:nnnn :n :MnnnMn:nn :n :Mnn n::Mn nM: :M:MnM:nn:n ::nnn n:nM:nnn::nn nn nnn:n: nnn:Mnnnnnn:nnnnnnn :n:M: n:n :: :n::nnnn n::n :n:nMnnnnnnn nn nnnnn:n:n : nnnnM n nn M n nn n Mnnn n::nnnn nnn :n:nMn :nnn n Mn ::nn:nnnn:nnMMnn : : ::nM:nMnM:nn :n:Mn:Mn:n:nn n :nM:nMn nn: nnM::nMn nnM:nnnnM: nn:n:n n:n ::nn:nnM nnn :nnn :nMnn :nnn :nM:nMn n n n:nM:::nn Mnnn M:nnn nnnnn:n ::: M

n n esnes M8nnnn:nnM n n:nn n:nnn s nn:nn:nn: : :nMnn :nnn nnMMnnnnn: n:nM::nMMMMn :nnn nM nnn nnMnMnn nM:nnnnM:nnnnnnnMn:n nMnnn:nnM n:n nnn:n nn nnn:n n M:nnn:MnMnnnn:: nnnnMn:n: nnM nMnn ::nM n nnMMM n n :nMnnnnn: nMn:n : nnnnMn :M:nnn : :Mn:MnM::M: :nnnnnMnn :nM n :nn n:n:nn:nnnnn n:M:Mnn:nM nsnnn:MM::pp: : :nn :: n:n n M ::- M:: M npMMMMpMMpM:n-MnnnMn:M- -nnnn:- -:n Mnn::-:n :Mn:n :: :n ::nnn: ::M: nnnn: nMn nnM:nn:n Mnn::nnnnnn :: :n:n nnn::n:nn : ::n Mnnn:nM: nnnnMnnnn nn:n:nnMMMMn :nnnM:nnn:n:nnn nn::: nn:n :nnnnnn :Mnn :n:nnn nnn M n nM:nnMM:nMnnnnnnnn ::nnnMnMnnnnn:n nnnnMnn nM::nnnn::nn n :nMn::nM:nn :n:MnM:nnn:nnnMn:nn:MnM nnnnn: nnnnn : :::::nnn nn nM:nMn s n:nnnnnn :Mnn::: nn:nM nnn :M:n:M:nnnM:n M nn :n:n nnn M n nM:nnMM:nMnnnnn :n::nMnnnnn:nnnnnMnn nM::n nnn::nn nn n s nnnnnn::n:n:nnnn::Mn: M:n:nn n n:n:n nnnnMnnn:::nnnn nnn n:nnnn -nn: nM:nMnM:n:nnnn : :MnnnMn: nM::M:::nn::::n:nnnnn:n : nn nsnnn : nnn nM:nnnnMn:MM::pp: : :nn :: n:n n M :: M:: M npMMMM- pMMpMnnn:nM: n-nnMn- :n:M: n:-:n-nn::n: :Mn:n :nnnn:nnnnnnnn:n :n ::nnn nn:n nn::nM:nMnM:nnn:n nnn MnnnnnnnnnnM:nMnM:n:nn nnn::::nM: nn:MnM::M: :n:nn :nnnnnn::n n:Mnn!n :nnMn:M:n::n :nMn nn nnnn M

n esne esnse M8nnnn:nnM :nn : nMn nnnM nn nnnnnM:nn nn :n nnn :nn:nn : nn:nnn:nn:nn : : : nM :Mn nnnnMnn ::nMnM:nnn n:n :M:nn:nn:nn: : :nnMnnn :M:nnnM: n 2M n e ene teeseee MMnnnn:nnM :nn nnnn:: nnM:nMn n n:nnn n: nnn nnn MMn:nnn:nn: nn n nnM:nnnnn:nM n:n::n :MnM:nn :MnMnn n nnM:nn:nn :nMn n::::nn:n:nMnM:nnnn nnnn n n n:n:nn :nMn ::n::n n nn n Mn nnnnn:nnn n n:n:nn:nMn :nn n nn nn MnMn nnnnnnn nnn n nnnnnn :nn :nn nnnnMn n: :Mn MnnnM: M:nMn::n nnn::nMn n::::: nn :nnn :nn::nnM n:M :n::nnn:nM n:n :n:nMnnn :: nMnnnMn :: :nn n:n Mnn :nnnn:nn nMnn:MnM n:MnMnnnnnnn::nM:nn n::::: nnn :nn::nn n nn::nMn nnn::nn ::nnn::nnn:nMn:n :nnMnnp: pnMnn -Mn M:nnn:::Mnn:MnMn: n :nnM:nMnnnnn: n :Mnn::nM:nnnnnnn nn n nn :n n:Mnn::nn:n:nMnM:nnn n n: n n nM:nn nMnnnMnnnnnnn:n::Mnn: :n:n::nnn: :n n:n nnnnM: nnn nnnn:nnn:nn: nn:n::: n n::n n Mnnn::n M

n esne esnse MMnnnn:nnM an:n:n n:M :nn Mn: nn: :nMn :nMn nnnnn:nn nnnnM:nMn::nnnn::::n n M :nM:nn n MnM:nMn nn nn:n:nM:nMn ::nn:nn:nMnnnn:nM n n n:nnnnn:n:nMn:nnMnM nnnn:nn:n-nnnn:nn n:::nMM nn : nM:nnn:nn:nn :n nnn:n nn:Mn:n n nnn :n :: n nnMn:n n Mnnn :nMn::: nnnnnn:n n n::nnn::n: n :M:nnMnnnnn :M:nnMnnnnn:nnn:nn :: nMnMnnn n MnnnM: n Mn::nnnn:n::n nM:nMn:MnMn:n:: ::nnMnMn :n:Mn:: MnnMnM nnn:nMn M:nn:n: n: n nM:nnn: nn n:: nM:nnnM:nnnnn:n nnn:nMnn nnn n n nn n nn nn nnn:n n n:nnn n: nnnMMn nnM:n nn:n::n nnn nnnnn ::nnn:M:nnn::nnnM:nnnnn ::::nn::n:n:nnMnM n n:::nMM n n :nnn nn:nnnM n ::nnnn: nMnM nMnMn:Mn:n n::n n M

ssssssssssssssssssssssssssss ooooo m o

o oooooo o o o o oooooo oooooooo ooooooo o oo-oooooo ooooo ooo ooo oooooo oo oo o oo ooo ooo o oo ooooooo ooo oooo ooo oooooo oo o oo oooo ooo oo oo oooo oo o oooooo o o oo o ooo oo ooo ooo o oooooo ooo oooo o ooo o o oo ooooo oo o o ooo oo o oooooo oo oo oooo oo oooooo oo ooo ooooo oo oooooo o oo o o oo o oo ooo oooooo o o oo oo ooo oo oo oooo oooooo oo o o ooo o o o oooooo ooooooo oooooo o o ooooo o oo oo oooo oooooo o oo oooo o o o ooo ooooo oooo o o oo o o oooooo oo ooo o o o o oo oo oo o ooo oo oooooo oo

o oo oooooo oo o oo oo oo oo o o o o oo o oooo o oo o oooooo ooo ooooo oo ooo oo o o oo ooooo o ooo oo oo o oo o ooo oo o o oooooo oo o o o ooo o oo oooo o o o o o ooo ooo ooooooo ooo oo oooo oooooo o o oo oo oo oo ooo oo oo ooo o oooooo ooo oo o ooo ooo ooooooo oo o o oo o oo oo ooooooo oooo oo o ooo oo o oo ooooooo oooo o oooooo oo ooo oo oo o o oooooo ooo-o o oo o o oooooo oo o o oo oo ooooo ooo o ooo o oo oo o ooo ooooo oo o oo ooo o o ooo ooooo ooooo

oo oooooo o oo ooo oo ooo o o oo o ooooo o ooooo o o oooo oo o o o ooo o o oo oo ooooo o oo oooooooooo oo o o o o oooo oo oo o oo oo oooo ooooo o o -- o o o o o oooo oooooo oo oo o o ooo o o oo o ooo oooo o oo o oo o o o o oo oo ooo oo oo oo o oooooo o oooooo ooooo ooooo o ooo o ooooo o o ooo o o oooo o o o o o o oooooo oo ooooo o o oo oooooo oo oo oo oo o oo oo oooo oo oo ooo ooo o o oo oo o o oo oo oooo oooo oo o o o oo ooo oo oo oo o o ooo ooo ooo oo oo ooooooo o ooo oo oooo oo oo o o o ooooo ooooooooo oooo oo oo ooo o o o o ooo oooo o oooooo ooooo o ooo o oo ooo o o oooo o o o o oo ooo o o oo o oo oo ooooo oo ooo ooo oo ooooo o oo oo o oo oooo o o - oo o o o o oooo o o o oo oooo- o oo o oo o oooo ooooooooo ooo oo ooo o o oo oooo oo o o ooooooooo ooooo o o oo ooo o o ooo ooooo oo oo o oooooo oo oooo o oo o o o o oo oooo oo oooo oo o o o o ooo o o o oo ooo oo o oo oo oooooo o oo o oo

o ooo o o oo oo ooooooo oo ooooo oooooo o oooooo o oo o oo oo oo oo ooo o oooo ooooo o o o o oooo oooooo hhahahrhhhhhhaahh oo o oo ooo o o o ooo o ooooo oo o o oooooo oo oo o o oo ooo oo oo o ooo ooooooo oo o o oo o o ooo oo oo o ooo oooo oo o oo ooo o o oo oooo o o o ooo o oooo o oo ooo o oo oo oo oo oooo o oo o o oo oooo ooooo o oo ooo o oo oo oo o o o oo oo ooo o o o o oo oo o oo o oo o o ooo o oo oo o oo ooo o oo oo oo o oo oooo o o ooo o o ooooooooo oo oo

oo oo ooooooo o oooooo o o oo oo - ooo oo o o oo ooo ooo o o oo o o oooo - o oooo o o o oooo oo oo ooo oooo ooo oooooo o oo o o oo o oo o o oo oooo ooooo o oo o o oo oo o oo o o ooo oo oooo oo oooo oooo oo o o oo oo oo oo oooo oo oooo ooo ooo o o oooo oo oo oo o o o ooo o o oo oo ooo oooo ooo oo o o oo oo oooooooo oo ooo ooo o o oooooo o oo o ooo ooo o o o oo oo o o ooo o o o o o o oo ooo o o o oooo o o oo o o o o o oooo oo oo o o o oooo o o oo o o o ooo ooooo o o oooo oo oo oo ooooooo oo oooo oooooo ooo ooooo o o o oo ooooooooo o oo o o oooooo o oo o o o ooooo ooo oooo ooo o oo oooo oo oo oo oooooo oo ooo o o oo o o o oo ooo oooo oo o oo o o oo ooo oo oooo o o o ooo oo oo ooo o ooo oo o oo oooo

ooo o oooooo o o ooooo o oo o o oo o o o oo oo o o oo ooo oo ooooo o oo oo oooo - ooo oo o oo o o oooooo - o oo o o o o oo oo oo ooo oo oo oooo o o oooooo oo oo ooooooo oooo o oo oo o oooo oo - o oo oooo oo o ooo o o oooo o o oo oo ooooooo - o o o oo o oooooooooo oo o o ooo o oooo ooo oo o oooooooo oo oo oooo oo oo oo ooo o oo ooo ooo oooooo o o oooo oooo o o oo o oo oo ooooo o o ooo o o o o ooo o o o oo ooo o o o oooo o o oo oo o oo oooo o o oo oo oo o o oo oooooo oooo oo o ooo o oo oo o o ooooo ooo oo o o ooo

ooooo oo oooo oo-oooooooo o oooooo oo oo oooo oo oooooo o ooo oo o oo o oo oo o o o oo o o arnnhaaaha o ooooooooo oo oooo oo o ooo o oo o o o o ooo o ooo ooo o oo ooo ooo oo o o ooo ooo oo o oo oo o o ooooooooo ooooooooooo oo o o oooooo oooooo oooo ooo o o oo o o o o ooooo oo oo o oooooo oooooooo o o ooo o o oooo ooo o o oo o oo o oo ooo o o o o oo ooo ooooooo o oooooo o o o oo oo oo o ooooo o o o oo ooo oo ooo o ooo o oo o oo oooo o oo ooo oo oo oo o oo oo o oooooo oo oo oooo oo oooooo oo o o ooooo oo ooooooo o o ooooooooo o oo oo oo oooooo oo ooooo oo oooo o oooo oo oo o o oo o o o o o oooo oo oo oo oo oo o o o o o o o o oo oo o ooooo o oooo o o o ooooo ooo oooo ooo oo o ooooooo oo o oo o oo ooo oo oooo oo o ooo o oo ooo o o o oo oo ooo oo o oo o oo o o oo o

o oooo o oo o oo ooo oo oo ooooo o o o oo oo oooo oo oo o oooo ooo o o o o oooo o oo ooo o o oooooo ooo oo oooo o ooooo oooo oo oo ooo oo ooo ooo o oo o o oo oo ooo o o oo o oo oo oo oo o ooo ooo oo o o ooo o oo o ooo o o oo o oo o ooo o oo o o oo o oo ooo oo o o oooooo o ooo ooo oo o oooooooo oo o o o o oo ooo o ooooooo o oo o oo oooo o o o oo o ooooo ooo ooo o oo ooo o o o ooooo ooo oo ooooooo o oo ooo o ooo o ooo oo oo oooo oooo ooo o o oo ooo ooo oo o o o o o oooo o ooo o o ooooo oooooo oo o ooo o oo oooooo oo ooo oo o ooo oooooo o o oooo

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