Opinion No. 2016-119

January 24, 2017

The Honorable Douglas House
State Representative
8923 Bridge Creek Road, CATO
North Little Rock, AR 72120-9469

Dear Representative House:

This is in response to your request for an opinion concerning the Arkansas Medical Marijuana Amendment of 2016, which voters approved at the November 2016 general election. You ask in this regard:

Are members of the Legislature obligated, under the terms of the Marijuana Amendment, to take certain actions that would facilitate the manufacture and delivery of cannabis in violation of the laws of the United States?

Would voting to pass laws and regulations to carry out the purposes of the Marijuana Amendment, or the execution of such laws and regulations by the executive, constitute a violation of such laws of the United States? Of particular concern are the statutes prohibiting manufacture and distribution, conspiracy, and the Racketeer Influenced Corrupt Organization statutes [and] … federal tax statutes and Food and Drug Administration laws that bear on the subject of cannabis, as well as others [that] may be relevant to my inquiry.[1]
RESPONSE

In response to your first question, the actions required of the General Assembly under the Arkansas Medical Marijuana Amendment of 2016 (“AMMA” or “Amendment”) appear to be mandatory under the plain terms of the Amendment. More specifically, based on the AMMA’s plain terms, it is my opinion that the General Assembly lacks discretion to decide whether to establish the Medical Marijuana Commission Fund or appropriate revenues arising under the Amendment. I am unable to opine on your second question, as it depends upon the interpretation and application of federal law.

DISCUSSION

Question 1: Are members of the Legislature obligated, under the terms of the Marijuana Amendment, to take certain actions that would facilitate the manufacture and delivery of cannabis in violation of the laws of the United States?

The General Assembly is obligated under the plain terms of the Arkansas Medical Marijuana Amendment of 2016 to create a fund to defray certain administrative and regulatory costs under the AMMA.[2] The General Assembly will also be required to appropriate state sales tax revenues and other revenues generated under the AMMA, for proper distribution to state agencies charged with administering various aspects of the Amendment.[3] The AMMA authorizes the General Assembly to enact additional appropriations, depending upon the availability of other funds.[4] Based on the Amendment’s plain terms, however, the General Assembly lacks discretion to decide whether to establish the Medical Marijuana Commission Fund or appropriate revenues arising under the Amendment.

Question 2: Would voting to pass laws and regulations to carry out the purposes of the Marijuana Amendment, or the execution of such laws and regulations by the executive, constitute a violation of such laws of the United States? Of particular concern are the statutes prohibiting manufacture and distribution, conspiracy, and the Racketeer Influenced Corrupt Organization statutes [and] … federal tax statutes and Food and Drug Administration laws that bear on the subject of cannabis, as well as others [that] may be relevant to my inquiry.

The resolution of this question depends upon the interpretation and application of federal law, which are matters falling outside the scope of an opinion from this office.[5]

The federal Controlled Substances Act (“CSA”)[6] prohibits the possession and distribution of marijuana; and there is no exception for marijuana used for medical purposes.[7] The AMMA thus cannot act as a shield to federal criminal prosecution under the CSA.[8] As an abstract legal matter, because federal law prohibits the possession and distribution of marijuana and there is no exception for medical marijuana, it is impossible to definitively say that no state government official or employee could be subject to prosecution for actions required by the AMMA. Such decisions lie in the discretion of federal officials.[9] Nevertheless, I believe it is more likely than not that such a prosecution would fail. At least one state’s high court has rejected an argument that public employees could be liable as “aiders or abettors” by complying with their obligations under their state’s medical marijuana law.[10]

Moreover, as a practical matter, I suspect that those actually possessing and distributing marijuana are the ones more likely to face the prospect of federal prosecution, as opposed to either state lawmakers who must enact laws in accordance with the AMMA or executive-branch officials who must enforce the Amendment.[11]

I regret that I cannot provide a more definitive answer to your question. However, the foregoing will hopefully be of some guidance. Elected officials in other states have requested letters from U.S. Attorneys in their districts for guidance on the question of potential criminal liability of individuals who implement their medical marijuana laws. You may wish to consider this avenue.

Sincerely,


Leslie Rutledge
Attorney General
[1]You also ask me to advise whether the President of the United States or the United States Attorney General has taken any action to immunize state officials or employees from prosecution. I am unaware of any such action, but must nevertheless respectfully decline to advise you in this regard. The scope of my review in the context of providing an official Attorney General opinion is limited to questions of state law. See Ark. Code Ann. § 25-17-706 (Repl. 2014). You may wish to refer this inquiry to the named federal offices, or the U.S. Attorney for the Eastern or Western District of Arkansas.
[2]See AMMA at § 17(b)(4)(B) (requiring the creation of the “Medical Marijuana Commission Fund.”). The AMMA also calls for the General Assembly’s creation of a “Vocational and Technical Training Special Revenue Fund” to be used for grants to technical institutes and vo-tech schools. Id. at § 17(b)(6).
[3]See id. at §§ 17 and 18.
[4]See id. at § 18(a)(4), (b)(4), and (c)(4).
[5]See note 1, supra.
[6]21 U.S.C. §§ 801-904.
[7]See id. at §§ 841(a), 844(a). See also Gonzalez v. Raich, 545 U.S. 1 (2005).
[8]See, e.g., Unites States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006).
[9]The U.S. Department of Justice (“DOJ”) has issued guidance several times to federal prosecutors in states with medical marijuana laws, most recently in 2013, as far as we are able to determine. Prompted apparently by “an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes,” a 2011 DOJ memorandum stressed that those in the business of operating or facilitating medical marijuana dispensaries are not shielded from federal prosecution, notwithstanding their compliance with state law, and gave federal prosecutors the discretion to prosecute such persons if such actions are consistent with resource constraints. Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use 1-2 (Oct. 19, 2009) (available at http://www.justice.gov/oip/docs/dag-guidance-2011-formedical-marijuana-use.pdf). Then, in 2013, in response to increased state legislation concerning marijuana, another DOJ memorandum concluded that where states have implemented effective regulatory measures, “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.” Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013) (available at https://www.justice.gov/iso /opa/resources/3052013829132756857467.pdf). Reviewing both memoranda leads me to conclude that while one cannot definitively exclude potential federal liability, the emerging trend is a focus on large-scale marijuana commercial operations, and possibly those involving “criminal networks.” See Barbara L. Johnson, Marijuana and the Workplace, SY002 ALI-CLE 665 (citing the 2013 DOJ memo and observing that federal law enforcement efforts have been narrowed to “criminal networks engaged in drug trafficking.”).
[10]White County v. Maricopa County, CV 2012-053585 (Ariz. S. Ct., December 20, 2016) (rejecting attempt to invoke federal preemption to invalidate actions required of the State of Arizona and Maricopa County under the Arizona Medical Marijuana Act).
[11]Enforcement policies are of course subject to change with administrations. But according to the 2013 DOJ memorandum, the DOJ is “committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.” Guidance Regarding Marijuana Enforcement Memorandum at 1. The memo also outlines “enforcement priorities” that notably do not include pursuing government personnel who implement state medical-marijuana regulatory systems. Id. at 2.