Attorney General Hardy Myers today released legal advice to the Oregon Department of Human Services (DHS) as to the effect of the recent U.S. Supreme Court decision, Gonzales v. Raich, on the operation of the Oregon Medical Marijuana Program. The advice, which responds to questions asked by the Public Health Director in DHS, states that the decision has no legal impact on the operation of Oregon's program. It further states that DHS may resume application review and issuance of registry identification cards to qualified applicants.
Below is a summary of the responses to the questions. The advice can be viewed in its entirety at www.doj.state.or.us.
1. Does Gonzales v. Raich invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?
No. Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws. Additionally, the case does not oblige states to enforce federal laws. The practical effect of Raich in Oregon is to affirm what the Attorney General understood to be the law since the adoption of the Act. The Act protects medical marijuana users who comply with its requirements from state criminal prosecution for production, possession, or delivery of a controlled substance. However, the Act neither protects marijuana plants from seizure nor individuals from prosecution if the federal government chooses to take action against patients or caregivers under the federal Controlled Substances Act.
2. Should there be operational changes to the program in light of Raich?
Since the Raich case does not invalidate the Act, the state has no legal mandate to change the program.
(a) May the program resume issuing registry identification cards?
Yes. The Oregon Medical Marijuana Act remains valid state law. As a result, DHS continues to be responsible for maintaining a program for the issuance of the cards pursuant to the terms of the Act.
(b) Does the decision require alteration of the program's current procedures for communicating with local, state and federal law enforcement?
No. Since the Act remains valid there is no reason to alter current procedures. Depending upon the person or entity seeking information from the program, the information that is sought and the actual text of the request, the information may be subject to full disclosure, partial disclosure or no disclosure.
(c) Does the program have a legal duty to communicate to registrants or applicants that state law does not protect patients from potential federal prosecution?
No. Neither federal nor state laws require such notification to program participants. It is the Attorney General's belief that the vast majority of patients and caregivers already knew, before Raich was decided, that the Act did not protect against possible federal prosecution. Nevertheless, in consultation with DOJ, DHS may want to consider again communicating to registrants and applicants that federal law continues to treat the manufacture, distribution and possession of marijuana as a crime and that compliance with the Act does not immunize individuals against possible federal prosecution.
Kevin Neely, Justice, (503) 378-6002