One of the first things you learn in law school is the
importance of making sure that any case you cite as legal precedent
is still good law. This process is called Shepardizing,
because some guy named Shepard published the reference guides that
allow you to determine whether the same court or a higher court had
issued a later opinion questioning the validity of the earlier one.
Shepardizing once was a tedious process of checking sometimes
dozens of volumes of books and pamphlets. Today, however, it
is a one-click process on the leading legal publishers'
websites.
It appears, however, that the "professional attorneys"
who prepared the Attorney General's Opinion that has put the
dispensary licensing process in limbo failed to Shepardize the
Oregon Supreme Court case that was one of the two legal authorities
that "compelled" their conclusion that the Arizona
Medical Marijuana Act (AMMA) dispensary provisions were preempted
by federal law.
Arizoneout analyzed the Oregon case in an August 10, 2012 post.
Almost a year later, the Oregon Supreme Court revisited the
preemption issue in another case,
Willis v. Winters.
The Willis case was filed by licensed medical marijuana users in
Oregon who had been denied state concealed weapons permits by the
sheriffs of two Oregon counties. The applicants met all of
the requirements of Oregon law, which required the sheriffs to
issue the permits to qualified applicants. The sheriffs
denied the permits, however, claiming state law was preempted by
the federal Gun Control Act of 1968, which prohibited the
possession of firearms by unlawful users of controlled substances.
The sheriffs took the position that because the applicants
were licensed medical marijuana users, they necessarily were
illegal drug users under federal law.
The Oregon Supreme Court disagreed, finding that the sheriffs were
without authority to deny the applicants the gun permits. In
doing so, the court limited the reach of its preemption analysis in
the Emerald Steel case, one of the two main authorities on which
the Arizona Attorney General's Opinion is based. The
Oregon Court stated: "Emerald Steel should not be
construed as announcing a stand-alone rule that any state law that
can be viewed as 'affirmatively authorizing' what federal
law prohibits is preempted."
The Oregon Supreme Court went on to conduct a detailed federal
preemption analysis to determined that the Oregon concealed gun
permit law was an obstacle to the purpose of the federal firearms
statute. Key to the Oregon court's decision was the fact
that nothing in the Oregon law prohibited federal officials from
enforcing the federal law by arresting and prosecuting those who
violated it, including licensed Oregon medical marijuana
users.
The Oregon Supreme Court's analysis in Willis, when applied to
the provisions of the AMMA that set up the dispensary process,
appear to point to a conclusion that those provisions also are not
preempted. Nothing in the AMMA prevents federal authorities
from arresting and prosecuting dispensary operators.
As the Oregon court stated, "It is well established that the
federal government lacks constitutional authority to commandeer the
policy-making or enforcement apparatus of the states by requiring
them to enact or enforce a federal regulatory program."
The Arizona Attorney General's Opinion's reliance on the
Emerald Steel case and failure to address the subsequent Willis
case is bad lawyering, pure and simple.
One of the first things you learn in law school is the
importance of making sure that any case you cite as legal precedent
is still good law. This process is called Shepardizing,
because some guy named Shepard published the reference guides that
allow you to determine whether the same court or a higher court had
issued a later opinion questioning the validity of the earlier one.
Shepardizing once was a tedious process of checking sometimes
dozens of volumes of books and pamphlets. Today, however, it
is a one-click process on the leading legal publishers'
websites.
It appears, however, that the "professional attorneys"
who prepared the Attorney General's Opinion that has put the
dispensary licensing process in limbo failed to Shepardize the
Oregon Supreme Court case that was one of the two legal authorities
that "compelled" their conclusion that the Arizona
Medical Marijuana Act (AMMA) dispensary provisions were preempted
by federal law.
Arizoneout analyzed the Oregon case in an August 10, 2012 post.
Almost a year later, the Oregon Supreme Court revisited the
preemption issue in another case,
Willis v. Winters.
The Willis case was filed by licensed medical marijuana users in
Oregon who had been denied state concealed weapons permits by the
sheriffs of two Oregon counties. The applicants met all of
the requirements of Oregon law, which required the sheriffs to
issue the permits to qualified applicants. The sheriffs
denied the permits, however, claiming state law was preempted by
the federal Gun Control Act of 1968, which prohibited the
possession of firearms by unlawful users of controlled substances.
The sheriffs took the position that because the applicants
were licensed medical marijuana users, they necessarily were
illegal drug users under federal law.
The Oregon Supreme Court disagreed, finding that the sheriffs were
without authority to deny the applicants the gun permits. In
doing so, the court limited the reach of its preemption analysis in
the Emerald Steel case, one of the two main authorities on which
the Arizona Attorney General's Opinion is based. The
Oregon Court stated: "Emerald Steel should not be
construed as announcing a stand-alone rule that any state law that
can be viewed as 'affirmatively authorizing' what federal
law prohibits is preempted."
The Oregon Supreme Court went on to conduct a detailed federal
preemption analysis to determined that the Oregon concealed gun
permit law was an obstacle to the purpose of the federal firearms
statute. Key to the Oregon court's decision was the fact
that nothing in the Oregon law prohibited federal officials from
enforcing the federal law by arresting and prosecuting those who
violated it, including licensed Oregon medical marijuana
users.
The Oregon Supreme Court's analysis in Willis, when applied to
the provisions of the AMMA that set up the dispensary process,
appear to point to a conclusion that those provisions also are not
preempted. Nothing in the AMMA prevents federal authorities
from arresting and prosecuting dispensary operators.
As the Oregon court stated, "It is well established that the
federal government lacks constitutional authority to commandeer the
policy-making or enforcement apparatus of the states by requiring
them to enact or enforce a federal regulatory program."
The Arizona Attorney General's Opinion's reliance on the
Emerald Steel case and failure to address the subsequent Willis
case is bad lawyering, pure and simple.
