The Chronic 2013:

The Evolution of Popular

Culture and the Legal

Treatment of Marijuana

November 12, 2013

Owen M. Panner Inn of Court

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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

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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

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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

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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

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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

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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

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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"

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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."

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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

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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

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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

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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.

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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

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"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.

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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.

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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.

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.

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!”

Supreme Court of Oregon.

In re Complaint as to the CONDUCT OF Michael

McDONOUGH, Accused.

(OSB 00–20; SC S49503).

Argued and Submitted May 5, 2003.

Decided Oct. 2, 2003.

State Bar charged attorney with violating dis-

ciplinary rules based on attorney's criminal convic-

tions for driving under the influence of intoxicants

(DUII), driving while suspended, and recklessly en-

dangering another person. A trial panel of the Dis-

ciplinary Board concluded attorney was guilty of

alleged misconduct and imposed an 18-month sus-

pension. The Supreme Court held that: (1) attor-

ney's criminal acts reflected adversely on attorney's

fitness to practice law; (2) attorney's criminal acts

subjected attorney to discipline; (3) under prelimin-

ary determination of appropriate sanction, conduct

warranted suspension; (4) several aggravating

factors existed; (5) some mitigating factors existed;

and (6) 18-month suspension was appropriate sanc-

tion.

Suspension ordered.

West Headnotes

[1] Attorney and Client 45 39

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k37 Grounds for Discipline

45k39 k. Criminal offenses and con-

viction thereof. Most Cited Cases

Attorney's criminal acts, including four acts of

driving under the influence of intoxicants (DUII),

five acts of driving while suspended, three acts of

reckless driving, one act of fourth-degree assault,

and one act of recklessly endangering another per-

son, reflected adversely on attorney's fitness to

practice law; despite knowledge and criminal sanc-

tions imposed upon him, attorney repeatedly chose

to drive in violation of laws prohibiting him from

driving while intoxicated and while license was

suspended, attorney risked serious bodily injury to

others every time he chose to drive while intoxic-

ated, and his multiple acts of driving while intoxic-

ated and while his license was suspended revealed

pattern of criminal conduct. Code of Prof.Resp.,

DR 1-102(A)(2).

[2] Attorney and Client 45 39

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k37 Grounds for Discipline

45k39 k. Criminal offenses and con-

viction thereof. Most Cited Cases

Attorney's criminal acts, including four acts of

driving under the influence of intoxicants (DUII),

five acts of driving while suspended, three acts of

reckless driving, one act of fourth-degree assault,

and one act of recklessly endangering another per-

son, reflected substantial disrespect for law and ra-

tionally was connected to question of attorney's fit-

ness to practice law, and, as conduct would cause

Supreme Court to deny attorney's admission if he

were applicant to state bar, conduct subjected attor-

ney to discipline. West's Or.Rev. Stat. Ann. §

9.527(1).

[3] Attorney and Client 45 59.13(1)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.13 Suspension

45k59.13(1) k. In general. Most

Cited Cases

(Formerly 45k58)

Under preliminary determination of appropriate

sanction, attorney's misconduct, which included

77 P.3d 306 Page 1

336 Or. 36, 77 P.3d 306

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criminal convictions for four acts of driving under

the influence of intoxicants (DUII), five acts of

driving while suspended, three acts of reckless driv-

ing, one act of fourth-degree assault, and one act of

recklessly endangering another person, warranted

suspension from practice of law; attorney's inten-

tional conduct caused actual injury to one party, po-

tential injury to public every time that he drove

while intoxicated, actual injury to legal system by

undermining orders suspending his driving priv-

ileges and by demonstrating an indifference to law,

and potential injury to legal profession by dam-

aging public's confidence in lawyers.

[4] Attorney and Client 45 59.5(4)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.5 Factors Considered

45k59.5(4) k. Factors in aggrava-

tion. Most Cited Cases

(Formerly 45k58)

Several aggravating factors existed, affecting

degree of sanction to be imposed against attorney

for misconduct, including criminal convictions for

four acts of driving under influence of intoxicants

(DUII), five acts of driving while suspended, three

acts of reckless driving, one act of fourth-degree as-

sault, and one act of recklessly endangering another

person; attorney acted with selfish motive, engaged

in pattern of misconduct by repeatedly committing

multiple criminal offenses, had substantial experi-

ence in the practice of law, and failed to appreciate

seriousness of his misconduct.

[5] Attorney and Client 45 59.5(5)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.5 Factors Considered

45k59.5(5) k. Factors in mitigation.

Most Cited Cases

(Formerly 45k58)

Though attorney provided medical evidence

that he suffered from alcoholism, mitigating factor

of chemical dependency was inapplicable in de-

termining appropriate sanction for attorney's mis-

conduct, which included criminal convictions for

four acts of driving under the influence of intoxic-

ants (DUII), five acts of driving while suspended,

three acts of reckless driving, one act of fourth-de-

gree assault, and one act of recklessly endangering

another person, since attorney's struggle with alco-

holism did not cause all misconduct, and attorney

did not establish that he had accomplished mean-

ingful and sustained recovery from alcohol depend-

ency.

[6] Attorney and Client 45 59.5(5)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.5 Factors Considered

45k59.5(5) k. Factors in mitigation.

Most Cited Cases

(Formerly 45k58)

In mitigation in assessing punishment for attor-

ney misconduct, chemical dependency, including

alcoholism, can operate as a mitigating factor when

the accused attorney shows that (1) there is medical

evidence that such a dependency exists, (2) the de-

pendency caused the misconduct, (3) the accused

lawyer has accomplished a meaningful and sus-

tained period of recovery from such dependency,

and (4) the recovery arrested the misconduct, and

recurrence of the misconduct is unlikely.

[7] Attorney and Client 45 53(1)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k47 Proceedings

45k53 Evidence

45k53(1) k. In general. Most Cited

Cases

77 P.3d 306 Page 2

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Although not relevant to issue whether attorney

had committed alleged misconduct, testimony relat-

ing to attorney's use of alcohol and his compliance

with alcohol treatment was relevant in attorney dis-

ciplinary proceedings to issue of appropriate sanc-

tion and existence of mitigating factor of chemical

dependency.

[8] Attorney and Client 45 59.5(5)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.5 Factors Considered

45k59.5(5) k. Factors in mitigation.

Most Cited Cases

(Formerly 45k58)

Several mitigating factors existed in determin-

ing appropriate sanction for attorney, whose mis-

conduct included criminal convictions for four acts

of driving under the influence of intoxicants

(DUII), five acts of driving while suspended, three

acts of reckless driving, one act of fourth-degree as-

sault, and one act of recklessly endangering another

person; attorney had no prior disciplinary record, he

introduced evidence that he had reputation for hon-

esty in legal community, he cooperated during dis-

ciplinary proceeding, other penalties had been im-

posed against him in form of criminal sanctions,

and there was lengthy delay between commission

of some criminal offenses and state bar's pursuit of

disciplinary proceedings.

[9] Attorney and Client 45 59.13(5)

45 Attorney and Client

45I The Office of Attorney

45I(C) Discipline

45k59.1 Punishment; Disposition

45k59.13 Suspension

45k59.13(2) Definite Suspension

45k59.13(5) k. Commission of

crime. Most Cited Cases

(Formerly 45k58)

Despite some mitigating factors, 18-month sus-

pension was appropriate sanction for attorney,

whose misconduct included criminal convictions

for four acts of driving under the influence of intox-

icants (DUII), five acts of driving while suspended,

three acts of reckless driving, one act of fourth-de-

gree assault, and one act of recklessly endangering

another person; attorney repeatedly engaged in

criminal conduct, refused to abide by sanctions im-

posed for criminal conduct, risked serious harm to

public, acted with selfish motive, failed to appreci-

ate seriousness of his misconduct, and aggravating

factors outweighed mitigating factors.

**307 *37-A J. Michael Alexander, Salem, argued

the cause and submitted the brief for the accused.

Martha M. Hicks, Assistant Disciplinary Counsel,

Lake Oswego, filed the brief for the Oregon State

Bar.

Before CARSON, Chief Justice, and GILLETTE,

DURHAM, RIGGS, De MUNIZ, and BALMER,

Justices.FN*

FN* Kistler, J., did not participate in the

consideration or decision of this case.

*38 PER CURIAM.

In this lawyer disciplinary proceeding, the Ore-

gon State Bar (Bar) charged Michael L. Mc-

Donough (the accused) with violating Code of Pro-

fessional Responsibility Disciplinary Rule (DR)

1–102(A)(2) (committing criminal act that reflects

adversely upon lawyer's honesty, trustworthiness,

or fitness to practice law) and with being subject to

discipline under ORS 9.527(1) (conduct justifying

denial of admission to Bar). A trial panel of the

Disciplinary Board concluded that the accused was

guilty of the alleged misconduct and imposed an

18–month suspension. Our review is automatic,

ORS 9.536(2); BR 10.1, and de novo, ORS 9.536(3)

; BR 10.6. The Bar has the burden of establishing

the alleged misconduct by clear and convincing

**308 evidence. BR 5.2. For the reasons that fol-

77 P.3d 306 Page 3

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low, we conclude that the accused violated DR

1–102(A)(2) and is subject to discipline under ORS

9.527(1). We also conclude that an 18–month sus-

pension from the practice of law is the appropriate

sanction for that misconduct.

The following facts are undisputed. In three

separate incidents that occurred between 1983 and

1985, the accused twice committed the crime of

Reckless Driving, a Class A misdemeanor, and

twice committed the crime of Driving Under the In-

fluence of Intoxicants (DUII), also a Class A mis-

demeanor.

In 1994, the accused again was charged with

the crime of DUII, for which he ultimately was

convicted in 1996. The accused unsuccessfully ap-

pealed his conviction, and, in January 1998, he was

fined and sentenced to 30 days in jail (with 28 days

suspended), he was placed on probation for 12

months, and his driver license was suspended for

one year. Nine months later, in September and early

October of 1998, the accused was charged with

Driving While Suspended, a Class A misdemeanor,

on three separate occasions.

On October 11, 1998, the accused and his then-

girlfriend, Wardell, spent an evening drinking heav-

ily at a tavern in Salem. Although the accused knew

that Wardell was intoxicated, he allowed her to

drive when they left the tavern. Wardell drove to

Interstate 5, and, on the freeway entrance ramp, the

accused and Wardell became engaged in *39 a

physical struggle. The accused ultimately pulled

Wardell out of the vehicle by her hair and ordered

her to get into the passenger seat of the vehicle.

When Wardell refused, the accused started to drive,

and Wardell jumped on the hood of the vehicle. The

accused continued to drive onto the freeway and

then attempted to throw Wardell off the vehicle by

hitting his brakes. After he had driven approxim-

ately a quarter of a mile with Wardell still clinging

to the hood of the vehicle, a state police trooper

stopped and arrested the accused. The accused re-

gistered a blood alcohol level of 0.14, and he was

charged with Driving While Suspended, DUII, As-

sault in the Fourth Degree, Recklessly Endangering

Another Person, and Reckless Driving. Wardell

suffered minor injuries from the incident.

From the charges from that incident on Octo-

ber, 11, 1998, together with the accused's three pri-

or 1998 Driving While Suspended charges, the ac-

cused ultimately was convicted of two counts of

Driving While Suspended, one count of DUII, and

one count of Recklessly Endangering Another Per-

son. For those convictions, in February 1999, the

accused was fined and sentenced to 12 days in jail,

he was placed on probation for 24 months, and his

driver license was suspended for three years.

Six months later, in August 1999, the accused

again was charged with the crime of Driving While

Suspended, for which he was convicted in Decem-

ber 1999. For that conviction, the accused was sen-

tenced to 180 days in jail (with 150 days suspen-

ded).

Finally, on January 24, 2001, and on Septem-

ber 5, 2001, the accused again was charged with

Driving While Suspended. Both those charges sub-

sequently were dismissed.

In October 2001, the Bar filed a Second

Amended Formal Complaint, alleging that the ac-

cused had violated DR 1–102(A)(2) and was sub-

ject to discipline under ORS 9.527(1) because he

had committed the following criminal acts:

“1. In 1983, Reckless Driving, a Class A Mis-

demeanor;

“2. In 1984, Driving Under the Influence of In-

toxicants and Reckless Driving, Class A Misde-

meanors;

*40 “3. On August 19, 1985, Driving Under the

Influence of Intoxicants, a Class A Misdemeanor;

“4. On December 27, 1994, Driving Under the

Influence of Intoxicants, a Class A Misdemeanor;

“5. On September 22, 1998, Driving While

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Suspended, a Class A Misdemeanor;

“6. On September 30, 1998, Driving While

Suspended, a Class A Misdemeanor;

“7. On October 6, 1998, Driving While Suspen-

ded, a Class A Misdemeanor;

**309 “8. On October 11, 1998, Driving While

Suspended/Revoked, a Class A Misdemeanor;

“9. On October 11, 1998, Driving Under the In-

fluence of Intoxicants, a Class A Misdemeanor;

“10. On October 11, 1998, Recklessly Endan-

gering Another, a Class A Misdemeanor;

“11. On October 11, 1998, Assault IV, a Class

A Misdemeanor;

“12. On October 11, 1998, Reckless Driving, a

Class A Misdemeanor;

“13. August 12, 1999, a violation of probation;

“14. On August 12, 1999, Driving While Sus-

pended, a Class A Misdemeanor;

“15. On January 24, 2001, Driving While Sus-

pended, a Class A Misdemeanor;

“16. On September 5, 2001, Driving While

Suspended, a Class A Misdemeanor.”

At the disciplinary hearing in January 2002, the

trial panel determined that the accused had commit-

ted all the alleged criminal acts and that, in doing

so, had violated DR 1–102(A)(2) and was subject to

discipline under ORS 9.527(1). As noted, for that

misconduct, the trial panel suspended the accused

from the practice of law for a period of 18 months.

On review, the accused admits to all the crim-

inal conduct that the Bar alleges, except the two al-

legations of *41 Driving While Suspended on Janu-

ary 24, 2001, and on September 5, 2001 (acts 15

and 16 in the Bar's Second Amended Formal Com-

plaint). He disputes, however, that his criminal acts

constitute a violation of DR 1–102(A)(2) or cause

him to be subject to discipline under ORS 9.527(1).

He also contends that, in any event, the 18–month

suspension that the trial panel imposed is an excess-

ive sanction.

[1] From our review of the record, we agree

with the accused that the Bar has failed to establish

by clear and convincing evidence that the accused

was guilty of Driving While Suspended in January

and September of 2001. We accept the accused's

admission as to the truth of the other alleged crim-

inal acts. On de novo review, we now must determ-

ine whether, by engaging in such criminal conduct,

the accused violated DR 1–102(A)(2) and is subject

to discipline under ORS 9.527(1) and, if so, the ap-

propriate sanction for that misconduct. DR

1–102(A)(2) provides:

“It is professional misconduct for a lawyer to

* * * [c]ommit a criminal act that reflects ad-

versely on the lawyer's honesty, trustworthiness

or fitness to practice law[.]”

As noted, the accused here admits to commit-

ting the following Class A misdemeanors: (1) four

acts of DUII, ORS 813.010; (2) five acts of Driving

While Suspended, ORS 811.182; (3) three acts of

Reckless Driving, ORS 811.140; (4) one act of As-

sault in the Fourth Degree, ORS 163.160; and (5)

one act of Recklessly Endangering Another Person,

ORS 163.195. He also admits to a probation viola-

tion. In light of those admissions, the focus of our

inquiry under DR 1–102(A)(2) is whether the ac-

cused's criminal acts reflect adversely upon his

“honesty, trustworthiness or fitness to practice

law[.]”

The Bar does not contend that the criminal acts

at issue raise doubts as to the accused's honesty or

trustworthiness; rather, the Bar contends that those

acts reflect adversely upon the accused's fitness to

practice law. In In re White, 311 Or. 573, 589, 815

P.2d 1257 (1991), this court explained that, for a

criminal act to reflect adversely upon an accused

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lawyer's fitness to practice law within the meaning

of *42 DR 1–102(A)(2), a rational connection must

exist between the criminal conduct and the accused

lawyer's fitness to practice law aside from the fact

of the criminality of the act alone. The court in

White identified a number of factors that this court

considers in making that determination, including:

“the lawyer's mental state; the extent to which the

act demonstrates disrespect for the law or law en-

forcement; the presence or absence of a victim;

the extent of actual or potential injury to a victim;

and the **310 presence or absence of a pattern of

criminal conduct.”

Id.

Applying those factors here, we agree with the

Bar that the accused's criminal acts reflect ad-

versely upon his fitness to practice law. The ac-

cused knew that the law prohibited him from driv-

ing while he was intoxicated and while his license

was suspended; however, despite that knowledge

and despite criminal sanctions that he had received

for such conduct, the accused nevertheless re-

peatedly chose to drive in violation of those laws.

Based upon those facts, we conclude that the ac-

cused's repeated criminal offenses were intentional

and demonstrated a substantial disrespect for the

law. See In re Lawrence, 332 Or. 502, 510, 31 P.3d

1078 (2001) (when accused lawyer knew of duty to

file tax returns timely, his repeated failure to do so

was intentional and reflected disrespect for law). In

addition, every time that he chose to drive while in-

toxicated, the accused risked serious bodily injury

to others, and, on October 11, 1998, he in fact

caused bodily injury to Wardell. Finally, the ac-

cused's multiple acts of driving while intoxicated

and while his license was suspended reveal a pat-

tern of criminal conduct. The accused is guilty of

violating DR 1–102(A)(2).

[2] The Bar also alleges that, by committing

the above criminal acts, the accused is subject to

discipline under this court's authority set out in

ORS 9.527(1), which provides:

“The Supreme Court may disbar, suspend or

reprimand a member of the bar whenever, upon

proper proceedings for that purpose, it appears to

the court that * * * [t]he member has committed

an act or carried on a course of conduct of such

nature that, if the member were applying for ad-

mission to the bar, the application should be

denied[.]”

*43 ORS 9.220 provides, in part:

“An applicant for admission as attorney must *

* * show that the applicant * * * [i]s a person of

good moral character and fit to practice law. * * *

For purposes of this section[,] * * * the lack of

‘good moral character’ may be established by ref-

erence 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 re-

spect 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 ap-

plicant's fitness to practice law.”

As discussed above, the accused's criminal

conduct, particularly his refusal to abide by sanc-

tions imposed for that conduct, reflects a substantial

disrespect for the law and rationally is connected to

the question of his fitness to practice law. Because

such conduct would cause us to deny the accused's

admission if he were an applicant to the Bar, we

conclude that the accused also is subject to discip-

line under ORS 9.527(1). See In re Rowell, 305 Or.

584, 586–88, 754 P.2d 905 (1988) (applicant's

criminal activity demonstrated lack of requisite

moral character for admission to Bar at time of con-

duct).FN1

FN1. Although we conclude that the ac-

cused is subject to discipline under ORS

9.527(1), that finding does not enhance the

sanction for the accused's misconduct in

light of our determination that the ac-

cused's conduct also constituted a violation

of DR 1–102(A)(2). See In re Kimmell,

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332 Or. 480, 487, 31 P.3d 414 (2001)

(noting that this court's finding that same

conduct violated both Code of Professional

Responsibility and provision of ORS

chapter 9 generally has not served to en-

hance sanction).

Having concluded that the accused is guilty of

violating DR 1–102(A)(2) and is subject to discip-

line under ORS 9.527(1), we now must determine

the appropriate sanction. In doing so, we follow this

court's well-established methodology by referring

to the American Bar Association's Standards for

Imposing Lawyer Sanctions (1991) (amended 1992)

(ABA Standards) and to this court's case law for

guidance. See, e.g., In re Kimmell, 332 Or. 480,

487–88, 31 P.3d 414 (2001) (describing methodo-

logy).

[3] *44 Under the ABA Standards, we first

make a preliminary determination of the appropri-

ate sanction by considering the duty that the ac-

cused violated, the accused's mental state, and the

injury that the accused's**311 misconduct caused.

ABA Standard 3.0. In this case, the accused viol-

ated his duty to the public to maintain his personal

integrity when he engaged in repeated acts of un-

lawful conduct. ABA Standard 5.1; see Kimmell,

332 Or. at 488, 31 P.3d 414 (accused lawyer viol-

ated duty to maintain personal integrity by enga-

ging in illegal conduct). As previously noted, the

accused's conduct here was intentional, and he

caused actual injury to Wardell on October 11,

1998, and potential injury to the public every time

that he drove while intoxicated. Moreover, when he

repeatedly chose to drive after his driver license

was suspended for his crimes of driving while in-

toxicated, the accused caused actual injury to the

legal system by undermining the orders that had

suspended his driving privileges and by demon-

strating an indifference to the law. The accused's

criminal offenses also caused potential injury to the

legal profession by damaging the public's confid-

ence in lawyers. The preliminary sanction under the

ABA Standards for such conduct is a suspension

from the practice of law. ABA Standard 5.12.

[4] We next consider the existence of any ag-

gravating or mitigating circumstances that may af-

fect the degree of the sanction to be imposed. ABA

Standard 3.0. In this proceeding, we find several

aggravating factors. When he drove after his driver

license had been suspended, the accused acted with

a selfish motive, that is, to serve his own personal

convenience. ABA Standard 9.22(b). The accused

also engaged in a pattern of misconduct by re-

peatedly committing multiple criminal offenses.

ABA Standard 9.22(c). In addition, the accused has

substantial experience in the practice of law, having

been admitted to the Bar in 1976. ABA Standard

9.22(i). Finally, we agree with the trial panel that

the accused has failed to appreciate the seriousness

of his misconduct. ABA Standard 9.22(g).

[5][6][7] In mitigation, we first note that chem-

ical dependency, including alcoholism, can operate

as a mitigating factor when the accused lawyer

shows that (1) there is medical evidence that such a

dependency exists; (2) the dependency *45 caused

the misconduct; (3) the accused lawyer has accom-

plished a meaningful and sustained period of recov-

ery from such dependency; and (4) the recovery ar-

rested the misconduct, and recurrence of the mis-

conduct is unlikely. ABA Standard 9.32(i)

(amended 1992); see In re Murdock, 328 Or. 18,

29–30, 968 P.2d 1270 (1998) (discussing those

factors). In this proceeding, we determine that the

accused has provided medical evidence that he suf-

fers from alcoholism. However, because a number

of the accused's criminal acts involved no use of al-

cohol at all, we cannot say that the accused's

struggle with alcoholism caused all his misconduct.

In addition, although the accused declares that he

now recognizes the need for treatment of his alco-

holism, the accused has not established that he has

accomplished a meaningful and sustained recovery

from his alcohol dependency. We therefore con-

clude that the mitigating factor of chemical depend-

ency is inapplicable to this proceeding.FN2

FN2. On review, the accused argues that

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the trial panel erred by admitting the testi-

mony of a number of witnesses whose

testimony related to the accused's use of

alcohol and his compliance with alcohol

treatment because, according to the ac-

cused, that testimony was not relevant to

any issue in the disciplinary proceeding.

See BR 5.1(a) (trial panel should exclude

irrelevant evidence in disciplinary hear-

ing). We disagree. Although that testimony

was not relevant to the issue whether the

accused had committed the alleged mis-

conduct, that evidence was relevant to the

issue of the appropriate sanction and, par-

ticularly, the existence of the mitigating

factor of chemical dependency. The trial

panel did not err by admitting that evid-

ence.

[8] We find the existence of several other mit-

igating factors. The accused has no prior disciplin-

ary record, ABA Standard 9.32(a), and he intro-

duced evidence that he has a reputation for honesty

in the legal community, ABA Standard 9.32(g). The

accused also cooperated during the disciplinary

proceeding, ABA Standard 9.32(e), and other pen-

alties have been imposed against the accused in the

form of criminal sanctions, ABA Standard 9.32(k).

In addition, in determining the appropriate sanction

for the accused's misconduct, we place diminished

weight upon the accused's criminal acts that oc-

curred in 1983, 1984, and 1985, because of the

lengthy **312 delay between the time that the ac-

cused committed those criminal offenses and the

Bar's pursuit of disciplinary proceedings. See ABA

Standard 9.32(j) (amended 1992) (delay in discip-

linary proceedings is mitigating factor).

*46 We now turn to a consideration of the ap-

propriate sanction in light of this court's case law.

The accused argues that this court should craft a

sanction to address the accused's alcohol depend-

ency by imposing a period of probation with the

condition that the accused participate in alcohol

treatment. The Bar disagrees and contends that the

18–month suspension that the trial panel imposed is

the appropriate sanction.

[9] In considering the appropriate sanction for

disciplinary violations involving criminal conduct,

this court previously has observed that

“[p]roceedings for the discipline of an attorney

are not to punish the attorney for the commission

of a crime. That matter is left to the criminal

courts. The objects of the proceedings here are to

uphold the dignity and respect of the profession,

protect the courts, preserve the administration of

justice and protect clients.”

In re Carstens, 297 Or. 155, 166, 683 P.2d 992

(1984); see also Kimmell, 332 Or. at 488, 31 P.3d

414 (same).

To protect the public and to uphold the respect

of the legal profession, this court's case law demon-

strates that disbarment or a lengthy suspension gen-

erally is appropriate when a lawyer intentionally

has committed criminal acts in violation of DR

1–102(A)(2). See, e.g., In re Davenport, 334 Or.

298, 49 P.3d 91, modified and adh'd to on recons.,

335 Or. 67, 57 P.3d 897 (2002) (accused lawyer

suspended for two years for false statements under

oath in violation of DR 1–102(A)(2), among other

violations); In re Albrecht, 333 Or. 520, 42 P.3d

887 (2002) (accused lawyer disbarred for participa-

tion in criminal money laundering scheme in viola-

tion of DR 1–102(A)(2), among other violations);

In re Gustafson, 333 Or. 468, 41 P.3d 1063 (2002)

(accused lawyer disbarred for false testimony under

oath and violating juvenile expungement order in

violation of DR 1–102(A)(2), among other viola-

tions); In re Kirkman, 313 Or. 181, 830 P.2d 206

(1992) (accused lawyer disbarred for forgery, false

declaration, and bigamy in violation of DR

1–102(A)(2) and DR 1–102(A)(3)).

In Kimmell, 332 Or. 480, 31 P.3d 414, this

court imposed a six-month suspension upon an ac-

cused lawyer who had committed a single act of

second-degree theft. In imposing that *47 sanction,

77 P.3d 306 Page 8

336 Or. 36, 77 P.3d 306

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the court stated that it considered theft, even theft

that did not involve a violation of a fiduciary duty,

to be a serious act of misconduct that demonstrated

a disrespect for the law. Id. at 491, 31 P.3d 414.

The court further noted that, in that case, the ac-

cused lawyer had acted intentionally and that mul-

tiple aggravating factors, but only one mitigating

factor, applied. Id. at 488–90, 31 P.3d 414.

In In re Allen, 326 Or. 107, 949 P.2d 710

(1997), this court imposed a one-year suspension

upon an accused lawyer who had committed crim-

inal acts of attempted possession of a controlled

substance and aiding and abetting another in the

commission of a crime. In doing so, the court em-

phasized that it was convinced that the accused

lawyer's misconduct was an aberration that was in-

consistent with the accused lawyer's general good

character and that similar misconduct was unlikely

to reoccur. Id. at 130, 949 P.2d 710. The court also

stressed that, in that case, the mitigating factors

substantially outweighed the aggravating factors.

Id. Nevertheless, in light of the seriousness of his

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 re-

peated criminal acts and, particularly, his refusal to

abide by sanctions imposed for his criminal con-

duct, 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 per-

sonal inconvenience, when he repeatedly drove

when his driver license was suspended. In addition,

as noted, we agree with the trial panel that the ac-

cused has failed to appreciate the seriousness of his

misconduct.

Although a number of mitigating factors also

apply in this proceeding, we find that the above lis-

ted aggravating *48 factors outweigh those mitigat-

ing factors. The accused's repeated criminal acts

persuade us that the accused presently lacks good

moral character and fitness to practice law. We

agree with the trial panel that the appropriate sanc-

tion is a suspension from the practice of law for a

period of 18 months.

The accused is suspended from the practice of

law for a period of 18 months, effective 60 days

from the filing of this decision.

Or.,2003.

In re Conduct of McDonough

336 Or. 36, 77 P.3d 306

END OF DOCUMENT

77 P.3d 306 Page 9

336 Or. 36, 77 P.3d 306

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Supreme Court of Oregon.

En Banc.

EMERALD STEEL FABRICATORS, INC., Peti-

tioner on Review,

v.

BUREAU OF LABOR AND INDUSTRIES, Re-

spondent on Review.

(BOLI 3004; CA A130422; SC S056265).

Argued and Submitted March 6, 2009.

Decided April 15, 2010.

Background: Employer sought review of decision

of Bureau of Labor and Industries (BOLI), conclud-

ing that employer engaged in disability discrimina-

tion when it discharged employee due to employ-

ee's medical marijuana use. The Court of Appeals,

220 Or.App. 423, 186 P.3d 300, affirmed. Employ-

er filed petition for review.

Holdings: The Supreme Court, Kistler, J., held

that:

(1] employer preserved for review claim that state

law did not require accommodation of employee's

medical marijuana use because marijuana posses-

sion is unlawful under federal law;

(2] employee currently engaged in the illegal use of

drugs is not entitled to reasonable accommodation;

(3] provision of Oregon Medical Marijuana Act af-

firmatively authorizing the use of medical

marijuana was preempted by Federal Controlled

Substances Act, which explicitly prohibited

marijuana use without regard to medicinal purpose;

and

(4] exclusion from the definition of “illegal use of

drugs” for the “use of a drug taken under supervi-

sion of a licensed health care professional” refers to

those medical and research uses that the Controlled

Substances Act authorizes.

Reversed.

Walters, J., dissented and filed opinion, in

which Durham, J., joined.

West Headnotes

[1] Civil Rights 78 1712

78 Civil Rights

78V State and Local Remedies

78k1705 State or Local Administrative

Agencies and Proceedings

78k1712 k. Judicial review and enforce-

ment of administrative decisions. Most Cited Cases

Employer, seeking review of decision of Bur-

eau of Labor and Industries (BOLI), concluding

that employer engaged in disability discrimination

when it discharged employee for medical marijuana

use, preserved for judicial review claim that state

law did not require accommodation of employee's

medical marijuana use because marijuana posses-

sion is unlawful under federal law; employer ar-

gued before agency that Oregon discrimination law

was to be construed consistently with the Federal

Americans with Disabilities Act (ADA), and that

the ADA did not permit the use of marijuana be-

cause marijuana was an illegal drug under federal

law, employer's further developing argument would

have been futile in light of controlling precedent,

and ALJ chose to reopen record to address employ-

er's federal law preemption arguments following

United States Supreme Court's opinion in Gonzales

v. Raich. Americans with Disabilities Act of 1990,

§ 2 et seq., 42 U.S.C.A. § 12101 et seq.; West's

Or.Rev. Stat. Ann. § 659A.112.

[2] Civil Rights 78 1712

78 Civil Rights

78V State and Local Remedies

78k1705 State or Local Administrative

Agencies and Proceedings

78k1712 k. Judicial review and enforce-

ment of administrative decisions. Most Cited Cases

Employer, conceding in disability discrimina-

230 P.3d 518 Page 1

348 Or. 159, 230 P.3d 518, 159 Lab.Cas. P 60,980, 23 A.D. Cases 1, 60 A.L.R.6th 669

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

tion proceedings before the Bureau of Labor and

Industries (BOLI) that controlling Court of Appeals

precedent foreclosed its affirmative defenses, did

not limit itself, for purposes of issue preservation,

to the defenses asserted by the losing party in the

prior case; employer reasonably acknowledged that

the reasoning in the prior case controlled the related

but separate defenses that it was raising, and em-

ployer did not say that it was advancing the same

issues asserted in the prior case.

[3] Civil Rights 78 1226

78 Civil Rights

78II Employment Practices

78k1215 Discrimination by Reason of Handi-

cap, Disability, or Illness

78k1226 k. Alcohol or drug use. Most

Cited Cases

Employee currently engaged in the illegal use

of drugs is not entitled to reasonable accommoda-

tion. West's Or.Rev. Stat. Ann. §§ 659A.112,

659A.124.

[4] Controlled Substances 96H 3

96H Controlled Substances

96HI In General

96Hk1 Nature and Power to Regulate

96Hk3 k. Preemption. Most Cited Cases

States 360 18.65

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.65 k. Product safety; food and

drug laws. Most Cited Cases

To the extent that provision of Oregon Medical

Marijuana Act affirmatively authorized the use of

medical marijuana, such provision was preempted

by Federal Controlled Substances Act, which expli-

citly prohibited marijuana use without regard to

medicinal purpose. Controlled Substances Act, §§

202(c), 401(a)(1), 21 U.S.C.A. §§ 812(c), 841(a)(1)

; West's Or.Rev. Stat. Ann. § 475.306(1).

[5] States 360 18.11

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.11 k. Congressional intent. Most

Cited Cases

The purpose of Congress is the ultimate touch-

stone in every pre-emption case.

[6] States 360 18.11

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.11 k. Congressional intent. Most

Cited Cases

Congress may indicate a pre-emptive intent

through a statute's express language or through its

structure and purpose.

[7] States 360 18.5

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.5 k. Conflicting or conforming

laws or regulations. Most Cited Cases

States 360 18.7

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.7 k. Occupation of field. Most

Cited Cases

Pre-emptive intent may be inferred if the scope

of the statute indicates that Congress intended fed-

eral law to occupy the legislative field, or if there is

an actual conflict between state and federal law.

[8] States 360 18.13

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.13 k. State police power. Most

230 P.3d 518 Page 2

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Cited Cases

When addressing questions of express or im-

plied pre-emption, courts begin their analysis with

the assumption that the historic police powers of

the States are not to be superseded by the federal

act unless that was the clear and manifest purpose

of Congress.

[9] Controlled Substances 96H 5

96H Controlled Substances

96HI In General

96Hk4 Statutes and Other Regulations

96Hk5 k. In general. Most Cited Cases

Central objectives of the Federal Controlled

Substances Act were to conquer drug abuse and to

control the legitimate and illegitimate traffic in con-

trolled substances; congress was particularly con-

cerned with the need to prevent the diversion of

drugs from legitimate to illicit channels. Controlled

Substances Act, § 101 et seq., 21 U.S.C.A. § 801 et

seq.

[10] States 360 4.16(3)

360 States

360I Political Status and Relations

360I(A) In General

360k4.16 Powers of United States and In-

fringement on State Powers

360k4.16(3) k. Surrender of state sov-

ereignty and coercion of state. Most Cited Cases

States 360 18.3

360 States

360I Political Status and Relations

360I(B) Federal Supremacy; Preemption

360k18.3 k. Preemption in general. Most

Cited Cases

Congress lacks the authority to compel a state

to criminalize conduct, no matter how explicitly it

directs a state to do so; when, however, a state af-

firmatively authorizes conduct, Congress has the

authority to preempt that law.

[11] Civil Rights 78 1022

78 Civil Rights

78I Rights Protected and Discrimination Prohib-

ited in General

78k1016 Handicap, Disability, or Illness

78k1022 k. Alcohol or drug use. Most

Cited Cases

Disability discrimination law's exclusion from

the definition of “illegal use of drugs” for the “use

of a drug taken under supervision of a licensed

health care professional” refers to those medical

and research uses that the Controlled Substances

Act authorizes. Controlled Substances Act, § 101 et

seq., 21 U.S.C.A. § 801 et seq.; West's Or.Rev.

Stat. Ann. § 659A.122(2).

West Codenotes

PreemptedWest's Or.Rev. Stat. Ann. § 475.306(1)

**519 On review from the Court of Appeals.FN*

FN* Appeal from Revised Order on Re-

consideration dated July 13, 2006, of the

Bureau of Labor and Industries. 220

Or.App. 423, 186 P.3d 300 (2008).

Terence J. Hammons, of Hammons & Mills, Eu-

gene, argued the cause and filed the brief for peti-

tioner on review.

Janet A. Metcalf, Assistant Attorney General,

Salem, argued the cause and filed the brief for re-

spondent on review. With her on the brief were

John R. Kroger, Attorney General, and Erika L.

Hadlock, Acting Solicitor General.

Paula A. Barran, of Barran Liebman LLP, Portland,

filed the brief for amicus curiae Associated Oregon

Industries.

James N. Westwood, of Stoel Rives LLP, Portland,

filed the brief for amici curiae Pacific Legal Found-

ation and National Federation of Independent Busi-

ness. With him on the brief was Deborah J. La

Fetra.

KISTLER, J.

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*161 The Oregon Medical Marijuana Act au-

thorizes persons holding a registry identification

card to use marijuana for medical purposes. ORS

475.306(1). It also exempts those persons from

state criminal liability for **520 manufacturing, de-

livering, and possessing marijuana, provided that

certain conditions are met. ORS 475.309(1). The

Federal Controlled Substances Act, 21 U.S.C. § 801

et seq., prohibits the manufacture, distribution, dis-

pensation, and possession of marijuana even when

state law authorizes its use to treat medical condi-

tions. Gonzales v. Raich, 545 U.S. 1, 29, 125 S.Ct.

2195, 162 L.Ed.2d 1 (2005); see United States v.

Oakland Cannabis Buyers' Cooperative, 532 U.S.

483, 486, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001)

(holding that there is no medical necessity excep-

tion to the federal prohibition against manufactur-

ing and distributing marijuana).

The question that this case poses is how those

state and federal laws intersect in the context of an

employment discrimination claim; specifically, em-

ployer argues that, because marijuana possession is

unlawful under federal law, even when used for

medical purposes, state law does not require an em-

ployer to accommodate an employee's use of

marijuana to treat a disabling medical condition.

The Court of Appeals declined to reach that ques-

tion, reasoning that employer had not preserved it.

Emerald Steel Fabricators, Inc. v. BOLI, 220

Or.App. 423, 186 P.3d 300 (2008). We allowed em-

ployer's petition for review and hold initially that

employer preserved the question that it sought to

raise in the Court of Appeals. We also hold that,

under Oregon's employment discrimination laws,

employer was not required to accommodate em-

ployee's use of medical marijuana. Accordingly, we

reverse the Court of Appeals decision.

Since 1992, employee has experienced anxiety,

panic attacks, nausea, vomiting, and severe stomach

cramps, all of which have substantially limited his

ability to eat. Between January 1996 and November

2001, employee used a variety of prescription drugs

in an attempt to alleviate that condition. None of

those drugs proved effective for an extended period

of time, and some had negative effects. In 1996,

*162 employee began using marijuana to self-

medicate his condition.

In April 2002, employee consulted with a phys-

ician for the purpose of obtaining a registry identi-

fication card under the Oregon Medical Marijuana

Act. The physician signed a statement that employ-

ee has a “debilitating medical condition” and that

“[m]arijuana may mitigate the symptoms or effects

of this patient's condition.” The statement added,

however, “This is not a prescription for the use of

medical marijuana.” The statement that employee's

physician signed tracks the terms of the Oregon

Medical Marijuana Act. That act directs the state to

issue registry identification cards to persons when a

physician states that “the person has been dia-

gnosed with a debilitating medical condition and

that the medical use of marijuana may mitigate the

symptoms or effects” of that condition. ORS

475.309(2).FN1

No prescription is required as a

prerequisite for obtaining a registry identification

card. See id.

FN1. The 2001 version of the applicable

statutes was in effect at the time of the

events that gave rise to this proceeding.

Since 2001, the legislature has amended

those statutes but not in ways that affect

our decision, and we have cited to the 2009

version of the statutes.

Based on the physician's statement, employee

obtained a registry identification card in June 2002,

which he renewed in 2003.FN2

That card author-

ized employee to “engage in * * * the medical use

of marijuana” subject to certain restrictions. ORS

475.306(1). Possession of the card also exempted

him from state criminal prosecution for the posses-

sion, distribution, and manufacture of marijuana,

provided that he met certain conditions. ORS

475.309(1).

FN2. ORS 475.309(7)(a)(C) requires a per-

son possessing a registry identification

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card to submit annually “[u]pdated written

documentation from the cardholder's at-

tending physician of the person's debilitat-

ing medical condition and that the medical

use of marijuana may mitigate the symp-

toms or effects” of that condition. If the

person fails to do so, the card “shall be

deemed expired.” ORS 475.309(7)(b).

Employer manufactures steel products. In Janu-

ary 2003, employer hired employee on a temporary

basis as a drill press operator. While working for

employer, employee used medical marijuana one to

three times per day, although not at work. Employ-

ee's work was satisfactory, and employer was con-

sidering hiring him on a permanent basis. **521

Knowing *163 that he would have to pass a drug

test as a condition of permanent employment, em-

ployee told his supervisor that he had a registry

identification card and that he used marijuana for a

medical problem; he also showed his supervisor

documentation from his physician. In response to a

question from his supervisor, employee said that he

had tried other medications but that marijuana was

the most effective way to treat his condition.

Neither employee's supervisor nor anyone else in

management engaged in any other discussion with

employee regarding alternative treatments for his

condition. One week later, the supervisor dis-

charged employee.

Two months later, employee filed a complaint

with the Bureau of Labor and Industries (BOLI), al-

leging that employer had discriminated against him

in violation of ORS 659A.112. That statute prohib-

its discrimination against an otherwise qualified

person because of a disability and requires, among

other things, that employers “make reasonable ac-

commodation” for a person's disability unless doing

so would impose an undue hardship on the employ-

er. ORS 659A.112(2)(e). Having investigated em-

ployee's complaint, BOLI filed formal charges

against employer, alleging that employer had dis-

charged employee because of his disability in viola-

tion of ORS 659A.112(2)(c) and (g) and that em-

ployer had failed to reasonably accommodate em-

ployee's disability in violation of ORS

659A.112(2)(e) and (f). Employer filed an answer

and raised seven affirmative defenses.

After hearing the parties' evidence, an adminis-

trative law judge (ALJ) issued a proposed order in

which he found that employee was a disabled per-

son within the meaning of ORS chapter 659A but

that employer had not discharged employee because

of his disability. The ALJ found instead that em-

ployer had discharged employee because he used

marijuana and ruled that discharging employee for

that reason did not violate ORS 659A.112(2)(c) or

(g). The ALJ went on to rule, however, that em-

ployer had violated ORS 659A.112(2)(e) and (f),

which prohibit an employer from failing to reason-

ably accommodate the “known physical or mental

limitations of an otherwise qualified disabled per-

son,” and from denying employment opportunities

to an otherwise *164 qualified disabled person

when the denial is based on the failure “to make

reasonable accommodation to the physical or men-

tal impairments of the employee.”

Among other things, the ALJ ruled that em-

ployer's failure to engage in a “meaningful interact-

ive process” with employee, standing alone, viol-

ated the obligation set out in ORS 659A.112(2)(e)

and (f) to reasonably accommodate employee's dis-

ability. The ALJ also found that employee had

suffered damages as a result of those violations,

and the commissioner of BOLI issued a final order

that adopted the ALJ's findings in that regard.

[1] Employer sought review of the commis-

sioner's order in the Court of Appeals. As we un-

derstand employer's argument in the Court of Ap-

peals, it ran as follows: Oregon law requires that

ORS 659A.112 be interpreted consistently with the

federal Americans with Disabilities Act (ADA), 42

USC § 12101 et seq. Section 12114(a) of the ADA

provides that the protections of the ADA do not ap-

ply to persons who are currently engaged in the il-

legal use of drugs, and the federal Controlled Sub-

stances Act prohibits the possession of marijuana

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without regard to whether it is used for medicinal

purposes. It follows, employer reasoned, that the

ADA does not apply to persons who are currently

engaged in the use of medical marijuana. Like the

ADA, ORS 659A.124 provides that the protections

of ORS 659A.112 do not apply to persons who are

currently engaged in the illegal use of drugs. Em-

ployer reasoned that, if ORS 659A.112 is inter-

preted consistently with the ADA, then ORS

659A.112 also does not apply to persons who are

currently engaged in medical marijuana use. Em-

ployer added that, in any event, the United States

Supreme Court's opinion in Raich and the Suprem-

acy Clause required that interpretation.

The Court of Appeals did not reach the merits

of employer's argument. It concluded that employer

had not presented that argument to the agency and

thus had not preserved it. Accordingly, we begin

with the question whether employer preserved the

issues**522 before BOLI that it sought to raise in

the Court of Appeals.

Employer raised seven affirmative defenses in

response to BOLI's complaint. The fifth affirmative

defense alleged:

*165 “Oregon law prescribes that ORS

659A.112 be construed to the extent possible in a

manner that is consistent with any similar provi-

sions of the Federal Americans with Disabilities

Act of 1990, as amended. That Act does not per-

mit the use of marijuana because marijuana is an

illegal drug under Federal Law.”

That affirmative defense is broad enough to en-

compass the argument that employer made in the

Court of Appeals. To be sure, employer's fifth af-

firmative defense does not refer specifically to ORS

659A.124. However, it alleges that the ADA does

not apply to persons who use marijuana, a proposi-

tion that necessarily depends on both 42 USC §

12114(a), the federal counterpart to ORS 659A.124,

and the Controlled Substances Act. And the fifth af-

firmative defense also states that ORS 659A.112

should be construed in the same manner as the

ADA. Although employer could have been more

specific, its fifth affirmative defense is sufficient to

raise the statutory issue that it sought to argue in

the Court of Appeals.FN3

FN3. BOLI points to nothing in its rules

that suggests that more specificity was re-

quired. Cf. OAR 839–050–0130 (providing

only that affirmative defenses must be

raised or waived).

Ordinarily, we would expect that employer

would have developed the legal arguments in sup-

port of its fifth affirmative defense more fully at the

agency hearing. However, the Court of Appeals is-

sued its decision in Washburn v. Columbia Forest

Products, Inc., 197 Or.App. 104, 104 P.3d 609

(2005), two weeks before the hearing in this case,

and employer concluded that the reasoning in

Washburn foreclosed its fifth affirmative defense.

The Court of Appeals held in Washburn that an em-

ployer's failure to accommodate an employee's use

of medical marijuana violated ORS 659A.112. In

reaching that holding, the Court of Appeals decided

two propositions that bore on the validity of em-

ployer's fifth affirmative defense. First, it reasoned

that the requirement in ORS 659A.139 to interpret

ORS 659A.112 consistently with the ADA does not

require absolute symmetry between state and feder-

al law. Id. at 109–10, 104 P.3d 609. Second, it held

that, as a matter of state law, the employee's medic-

al use of marijuana was “not unlawful” for the pur-

poses of a federal statute that prohibits the use of il-

legal drugs in the workplace. Id. at 114–15, 104

P.3d 609. The court noted that the question

“[w]hether medical use of marijuana is unlawful

under federal law is an open question” *166 and

that the United States Supreme Court had granted

the government's petition for certiorari in Raich to

decide that question. Id. at 115 n. 8, 104 P.3d 609.

At the hearing in this case, employer told the

ALJ that five of its affirmative defenses (including

the fifth affirmative defense) were “foreclosed by

the Washburn decision” but that it was “not with-

drawing them.” Employer did not explain the basis

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for that position. We note, however, that the Court

of Appeals' conclusion in Washburn that ORS

659A.139 does not require absolute symmetry

between the state and federal antidiscrimination

statutes and its conclusion that medical marijuana

use is “not unlawful” under state law effectively

foreclosed reliance on ORS 659A.139 and ORS

659A.124 as a basis for employer's fifth affirmative

defense. There would be little point in arguing be-

fore the ALJ that employee was currently engaged

in the illegal use of drugs if, as the Court of Ap-

peals had just stated in Washburn, the use of medic-

al marijuana is not illegal.FN4

The ALJ issued a

proposed order in which it ruled that the Court of

Appeals decision in Washburn controlled, among

other things, employer's fifth affirmative defense.

FN4. To be sure, the Court of Appeals re-

served the question in Washburn whether

the use of medical marijuana is unlawful

under federal law, but that did not detain it

from holding that the employer in that case

had an obligation under ORS 659A.112 to

accommodate the employee's use of medic-

al marijuana. Given Washburn's holding,

employer reasonably conceded its con-

trolling effect until, as noted below, the

Supreme Court issued its decision in

Raich.

**523 After the ALJ filed his proposed order,

the United States Supreme Court issued its decision

in Raich and held that Congress had acted within its

authority under the Commerce Clause in prohibit-

ing the possession, manufacture, and distribution of

marijuana even when state law authorizes its use

for medical purposes. 545 U.S. at 33, 125 S.Ct.

2195. Raich addressed the question that the Court

of Appeals had described in Washburn as

open—whether using marijuana, even for medical

purposes, is unlawful under federal law. Employer

filed a supplemental exception based on Raich and

alternatively a request to reopen the record to con-

sider Raich. Employer argued that, as a result of

Raich, “states may not authorize the use of

marijuana for medicinal purposes” and that “[t]he

impact of this decision is that *167 [employer]

should prevail on its Fourth and Fifth Affirmative

Defenses.”

BOLI responded that the ALJ should not re-

open the record. It reasoned that Raich did not in-

validate Oregon's medical marijuana law and that,

in any event, employer could have raised a preemp-

tion argument before the Court issued its decision

in Raich. Employer replied that, as it read Raich,

the “Supreme Court has ruled that legalization of

marijuana is preempted by federal law. This obvi-

ously invalidates the Oregon Medical Marijuana

Act.” Employer also explained that it had raised

this issue in its fourth and fifth affirmative de-

fenses, which “recite[d] that marijuana is an illegal

drug under federal law, and that state law deferred

to federal law.” After considering the parties' argu-

ments, the ALJ allowed employer's motion to re-

open the record, stating that “[t]he forum will con-

sider the Supreme Court's ruling in Raich to the ex-

tent that it is relevant to [employer's] case.” Later,

the Commissioner ruled that the Controlled Sub-

stances Act, which was at issue in Raich, did not

preempt the Oregon Medical Marijuana Act.

As we read the record, employer took the posi-

tion before the agency that, like the protections of

the federal ADA, the protections of ORS 659A.112

do not apply to a person engaged in the use of illeg-

al drugs, a phrase that, as a result of controlling

federal law, includes the use of medical marijuana.

We conclude that employer's arguments were suffi-

cient to preserve the issue that it sought to raise on

judicial review in the Court of Appeals. To be sure,

employer's fifth affirmative defense, as pleaded,

turned solely on a question of statutory interpreta-

tion. Employer did not raise the preemption issue or

argue that federal law required a particular reading

of Oregon's statutes until employer asked the ALJ

to reopen the record to consider Raich. Perhaps the

ALJ could have declined to reopen the record.

However, once the ALJ chose to reopen the record

and the Commissioner chose to address employer's

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preemption arguments based on Raich, then em-

ployer's federal preemption arguments were also

properly before the agency.FN5

FN5. After the Commissioner issued his fi-

nal order in this case, this court reversed

the Court of Appeals decision in Washburn

. Washburn v. Columbia Forest Products,

Inc., 340 Or. 469, 480, 134 P.3d 161

(2006). This court held that the employee

in Washburn was not a disabled person

within the meaning of ORS chapter 659A.

Id. at 479, 134 P.3d 161. Given that hold-

ing, this court did not reach the other is-

sues that the Court of Appeals had ad-

dressed in Washburn. After this court's de-

cision in Washburn, the commissioner

withdrew the final order and issued a re-

vised order on reconsideration, adhering to

his earlier resolution of employer's affirm-

ative defenses in this case.

168 As noted, the Court of Appeals reached a

different conclusion regarding preservation, and we

address its reasoning briefly. The Court of Appeals

reasoned that, in telling the ALJ that Washburn

foreclosed its affirmative defenses, employer adop-

ted the specific defenses that the employer in Wash-

burn had asserted and that employer was now lim-

ited to those defenses. 220 Or.App. at 437, 186

P.3d 300. The difficulty, the Court of Appeals ex-

plained, was that the statutory issues that employer

had raised in its affirmative defenses and sought to

raise on judicial review differed from the issues that

the employer had raised in Washburn. Id.

In our view, the Court of Appeals misperceived

the import of what employer told the ALJ. Employ-

er reasonably acknowledged that the reasoning in

Washburn controlled the related but separate de-

fenses that it was **524 raising in this case. Em-

ployer did not say that it was advancing the same

issues that the employer had asserted in Washburn,

and the Court of Appeals erred in holding other-

wise.

The Court of Appeals also concluded that em-

ployer had not preserved its argument regarding the

preemptive effect of the Controlled Substances Act,

as interpreted in Raich. Emerald Steel, 220 Or.App.

at 437–38, 186 P.3d 300. It noted that, on judicial

review, employer argued that federal law required

its interpretation of Oregon's antidiscrimination

statutes while it had argued before the agency that

federal law preempted the Oregon Medical

Marijuana Act. Id. We read the record differently.

As explained above, employer made both argu-

ments before the agency.FN6

FN6. As noted, employer moved to reopen

the record on the ground that, as a result of

Raich, “states may not authorize the use of

marijuana for medicinal purposes” and that

“[t]he impact of this decision is that

[employer] should prevail on its Fourth

and Fifth Affirmative Defenses.” Employer

thus told the agency that the Controlled

Substances Act, as interpreted in Raich,

compelled its interpretation of Oregon's

antidiscrimination statutes. Additionally, in

response to BOLI's arguments, employer

contended that the Controlled Substances

Act preempted the Oregon Medical

Marijuana Act.

*169 Having concluded that employer pre-

served the issues it sought to raise on judicial re-

view, we turn to the merits of those issues.FN7

Em-

ployer's statutory argument begins with ORS

659A.124(1), which provides that “the protections

of ORS 659A.112 do not apply to any * * * em-

ployee who is currently engaging in the illegal use

of drugs if the employer takes action based on that

conduct.”FN8

It follows, employer reasons, that it

had no obligation under ORS 659A.112(2)(e) and

(f) to reasonably accommodate employee's medical

marijuana use. In responding to that argument on

the merits, BOLI does not dispute that employee

was currently engaged in the use of medical

marijuana, nor does it dispute that employer dis-

charged employee for that reason. Rather, BOLI ad-

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vances two arguments why ORS 659A.124 does not

support employer's position.

FN7. We note that both California and

Washington have considered whether their

state medical marijuana laws give medical

marijuana users either a claim under Cali-

fornia's fair employment law or an implied

right of action under Washington law

against an employer that discharges or re-

fuses to hire a person for off-work medical

marijuana use. See Roe v. TeleTech Cus-

tomer Care Management, 152 Wash.App.

388, 216 P.3d 1055 (2009); Ross v. Ra-

gingWire Telecommunications, Inc., 42

Cal.4th 920, 70 Cal.Rptr.3d 382, 174 P.3d

200 (2008). Both the California and Wash-

ington courts have held that, in enacting

their states' medical marijuana laws, the

voters did not intend to affect an employ-

er's ability to take adverse employment ac-

tions based on the use of medical

marijuana. Roe, 216 P.3d at 1058–61;

Ross, 70 Cal.Rptr.3d 382, 174 P.3d at 204.

Accordingly, in both Washington and Cali-

fornia, employers do not have to accom-

modate their employees' off-site medical

marijuana use. We reach the same conclu-

sion, although our analysis differs because

Oregon has chosen to write its laws differ-

ently.

FN8. ORS 659A.124 lists exceptions to

that rule, none of which applies here. See

ORS 659A.124(2) (recognizing exceptions

for persons who either are participating in

or have successfully completed a super-

vised drug rehabilitation program and are

no longer engaging in the illegal use of

drugs).

[3] As we understand BOLI's first argument, it

contends that, because the commissioner found that

employer had violated ORS 659A.112(2)(e) and (f)

by failing to engage in a “meaningful interactive

process,” ORS 659A.124 is inapposite. We reach

precisely the opposite conclusion. The commission-

er explained that engaging in a “meaningful inter-

active process” is the “mandatory first step in the

process of reasonable accommodation” that ORS

659A.112(2)(e) and (f) require. However, ORS

659A.124 provides that “the protections of ORS

659A.112 do not apply” to an employee who is cur-

rently engaged in the illegal use of drugs, if the em-

ployer *170 takes an adverse action based on that

use. Under the plain terms of ORS 659A.124, if

medical marijuana use is an illegal use of drugs

within the meaning of ORS 659A.124, then ORS

659A.124 excused employer from whatever obliga-

tion it would have had under ORS 659A.112 to en-

gage in a “meaningful interactive process” or other-

wise accommodate employee's use of medical

marijuana.

BOLI advances a second, alternative argument.

It argues that “employee's use of medical marijuana

was entirely legal under **525 state law” and thus

not an “illegal use of drugs” within the meaning of

ORS 659A.124. BOLI recognizes, as it must, that

the federal Controlled Substances Act prohibits

possession of marijuana even when used for medic-

al purposes. BOLI's argument rests on the assump-

tion that the phrase “illegal use of drugs” in ORS

659A.124 does not include uses that are legal under

state law even though those same uses are illegal as

a matter of federal law. BOLI never identifies the

basis for that assumption; however, a state statute

defines the phrase “illegal use of drugs,” as used in

ORS 659A.124, and we turn to that statute for guid-

ance in resolving BOLI's second argument.

ORS 659A.122 provides, in part:

“As used in this section and ORS 659A.124,

659A.127 and 659A.130:

“ * * * * *

“(2) ‘Illegal use of drugs' means any use of

drugs, the possession or distribution of which is

unlawful under state law or under the federal

Controlled Substances Act, 21 U.S.C.A. 812, as

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amended, but does not include the use of a drug

taken under supervision of a licensed health care

professional, or other uses authorized under the

Controlled Substances Act or under other provi-

sions of state or federal law.”FN9

FN9. Before 2009, former ORS 659A.100

(4) (2001) defined the phrase “illegal use

of drugs.” In 2009, the legislature re-

numbered that definition as ORS

659A.122(2).

The definition of “illegal use of drugs” divides

into two parts. The first part defines the drugs that

are included within the definition—all drugs whose

use or possession is unlawful under state or federal

law. Marijuana clearly falls within the *171 first

part of the definition. The second part of the defini-

tion excludes certain uses of what would otherwise

be an illegal use of a drug. Two exclusions are po-

tentially applicable here: (1) the exclusion for “uses

authorized under * * * other provisions of state * *

* law” and (2) the exclusion for “the use of a drug

taken under supervision of a licensed health care

professional.” We consider each exclusion in turn.

We begin with the question whether employ-

ee's use of medical marijuana is a “us[e] authorized

under * * * other provisions of state * * * law.” We

conclude that, as a matter of statutory interpreta-

tion, it is an authorized use. The Oregon Medical

Marijuana Act affirmatively authorizes the use of

medical marijuana, in addition to exempting its use

from state criminal liability. Specifically, ORS

475.306(1) provides that “[a] person who possesses

a registry identification card * * * may engage in *

* * the medical use of marijuana” subject to certain

restrictions. ORS 475.302(10), in turn, defines a re-

gistry identification card as “a document * * * that

identifies a person authorized to engage in the med-

ical use of marijuana.” Reading those two subsec-

tions together, we conclude that ORS 475.306(1)

affirmatively authorizes the use of marijuana for

medical purposesFN10

and, as a statutory matter,

brings the use of medical marijuana within one of

the exclusions from the “illegal use of drugs” in

ORS 659A.122(2).FN11

FN10. The ballot title for the Oregon Med-

ical Marijuana Act confirms that interpret-

ation of the act. See State v. Gaines, 346

Or. 160, 172, 206 P.3d 1042 (2009)

(looking to legislative history to confirm

text). The caption, “yes” vote result state-

ment, and summary of the ballot title fo-

cused on the fact that the measure, if en-

acted, would allow permit-holders to use

medical marijuana and referred to the ex-

emption from criminal laws only at the end

of the summary. Official Voters' Pamphlet,

Nov 3, 1998, 148. The caption stated that

the measure “[a]llows medical use of

marijuana within limits; establishes permit

system.” The “yes” vote result statement

was to the same effect, and the summary

stated that current law prohibits the posses-

sion and manufacture of marijuana but that

the measure “allows engaging in, assisting

in, medical use of marijuana.” Id. Only at

the end of the summary did the ballot title

add that the measure “excepts permit hold-

er or applicant from marijuana criminal

statutes.” Id.

FN11. The Oregon Medical Marijuana Act

also exempts medical marijuana use from

state criminal liability. See ORS

475.309(1) (excepting persons holding re-

gistry identification cards from certain

state criminal prohibitions); ORS 475.319

(creating an affirmative defense to certain

criminal prohibitions for persons who do

not hold registry identification cards but

who have complied with the conditions ne-

cessary to obtain one). Because ORS

659A.122(2) excludes from the definition

of illegal use of drugs only those uses au-

thorized by state law, the provisions of the

Oregon Medical Marijuana Act that are

relevant here are those provisions that af-

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firmatively authorize the use of medical

marijuana, as opposed to those provisions

that exempt its use from criminal liability.

**526 172 Employer argues, however, that the

Supremacy Clause of the United States Constitution

requires that we interpret Oregon's statutes consist-

ently with the federal Controlled Substances Act.

We understand employer's point to be that, to the

extent that ORS 475.306(1) affirmatively author-

izes the use of medical marijuana, federal law pree-

mpts that subsection and that, without any effective

state law authorizing the use of medical marijuana,

employee's use of that drug was an “illegal use of

drugs” within the meaning of ORS 659A.124.FN12

We turn to that question and begin by setting out

the general principles that govern preemption. We

then discuss the federal Controlled Substances Act

and finally turn to whether the Controlled Sub-

stances Act preempts the Oregon Medical

Marijuana Act to the extent that state law affirmat-

ively authorizes the use of medical marijuana.

FN12. The only issue that employer's pree-

mption argument raises is whether federal

law preempts ORS 475.306(1) to the extent

that it authorizes the use of medical

marijuana. In holding that federal law does

preempt that subsection, we do not hold

that federal law preempts the other sec-

tions of the Oregon Medical Marijuana Act

that exempt medical marijuana use from

criminal liability. We also express no opin-

ion on the question whether the legislature,

if it chose to do so and worded Oregon's

disability law differently, could require

employers to reasonably accommodate dis-

abled employees who use medical

marijuana to treat their disability. Rather,

our opinion arises from and is limited to

the laws that the Oregon legislature has en-

acted.

[5][6][7][8] The United States Supreme Court

recently summarized the general principles govern-

ing preemption:

“Our inquiry into the scope of a statute's pre-

emptive effect is guided by the rule that ‘ “[t]he

purpose of Congress is the ultimate touchstone”

in every pre-emption case.’ Medtronic, Inc. v.

Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135

L.Ed.2d 700 (1996) (quoting Retail Clerks v.

Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11

L.Ed.2d 179 (1963)). Congress may indicate a

pre-emptive intent through a statute's express lan-

guage or through its structure and purpose. See

Jones v. Rath Packing Co., 430 U.S. 519, 525, 97

S.Ct. 1305, 51 L.Ed.2d 604 (1977). * * * Pre-

emptive intent may also be inferred if the scope

of the statute indicates that Congress intended

federal law to occupy the legislative field, or if

there is an actual conflict between state and *173

federal law. Freightliner Corp. v. Myrick, 514

U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385

(1995).

“When addressing questions of express or im-

plied pre-emption, we begin our analysis ‘with

the assumption that the historic police powers of

the States [are] not to be superseded by the Fed-

eral Act unless that was the clear and manifest

purpose of Congress.’ Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91

L.Ed. 1447 (1947).”

Altria Group, Inc. v. Good, ––– U.S. ––––,

––––, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008).

[9] With those principles in mind, we turn to

the Controlled Substances Act. The central object-

ives of that act “were to conquer drug abuse and to

control the legitimate and illegitimate traffic in con-

trolled substances. Congress was particularly con-

cerned with the need to prevent the diversion of

drugs from legitimate to illicit channels.” Raich,

545 U.S. at 12–13, 125 S.Ct. 2195 (footnotes omit-

ted). To accomplish those objectives, Congress cre-

ated a comprehensive, closed regulatory regime that

criminalizes the unauthorized manufacture, distri-

bution, dispensation, and possession of controlled

substances classified in five schedules. Id. at 13,

125 S.Ct. 2195.

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The Court has explained that:

“Schedule I drugs are categorized as such be-

cause of their high potential for abuse, lack of

any accepted medical use, and absence of any ac-

cepted safety for use in medically supervised

treatment. [21 U.S.C.] § 812(b)(1). These three

factors, in varying gradations, are also used to

categorize drugs in the other four schedules. For

example, Schedule II substances also have a high

potential for abuse which may lead to severe psy-

chological**527 or physical dependence, but un-

like Schedule I drugs, they have a currently ac-

cepted medical use. [21 U.S.C.] § 812(b).”

Id. at 14, 125 S.Ct. 2195. Consistent with Con-

gress's determination that the controlled substances

listed in Schedule II through V have currently ac-

cepted medical uses, the Controlled Substances Act

authorizes physicians to prescribe those substances

for medical use, provided that they do so within the

bounds of professional practice. See United States

v. Moore, 423 U.S. 122, 142–43, 96 S.Ct. 335, 46

L.Ed.2d 333 (1975).FN13

By contrast, *174 be-

cause Schedule I controlled substances lack any ac-

cepted medical use, federal law prohibits all use of

those drugs “with the sole exception being use of

[Schedule I] drug[s] as part of a Food and Drug Ad-

ministration preapproved research project.” Raich,

545 U.S. at 14, 125 S.Ct. 2195; see 21 U.S.C. §

823(f) (recognizing that exception for the use of

Schedule I drugs).

FN13. Two subsections of the Controlled

Substances Act accomplish that result.

Section 823(f) directs the Attorney General

to register physicians and other practition-

ers to dispense controlled substances listed

in Schedule II through V. 21 U.S.C. §

823(f). Section 822(b) authorizes persons

registered with the Attorney General to

dispense controlled substances “to the ex-

tent authorized by their registration and in

conformity with the other provisions of

this subchapter.” 21 U.S.C. § 822(b).

Congress has classified marijuana as a Sched-

ule I drug, 21 U.S.C. § 812(c), and federal law pro-

hibits its manufacture, distribution, and possession,

21 U.S.C. § 841(a)(1). Categorizing marijuana as a

Schedule I drug reflects Congress's conclusion that

marijuana “lack[s] any accepted medical use, and

[that there is an] absence of any accepted safety for

use in medically supervised treatment.” Raich, 545

U.S. at 14, 125 S.Ct. 2195 (citing 21 U.S.C. §

812(b)(1)). Consistently with that classification, the

Court has concluded that the Controlled Substances

Act does not contain a “medical necessity” excep-

tion that permits the manufacture, distribution, or

possession of marijuana for medical treatment.

Oakland Cannabis Buyers' Cooperative, 532 U.S.

at 494 and n. 7, 121 S.Ct. 1711.FN14

Despite ef-

forts to reclassify marijuana, it has remained a

Schedule I drug since the enactment of the Con-

trolled Substances Act. See Raich, 545 U.S. at

14–15 and n. 23, 125 S.Ct. 2195 (summarizing

“considerable efforts,” ultimately unsuccessful, to

reschedule marijuana).

FN14. The specific question in Oakland

Cannabis Buyers' Cooperative was wheth-

er there was a medical necessity exception

for manufacturing and distributing

marijuana. The Court explained, however,

that, “[l]est there be any confusion, we cla-

rify that nothing in our analysis, or the

statute, suggests that a distinction should

be drawn between the prohibitions on man-

ufacturing and distributing and the other

prohibitions in the Controlled Substances

Act.” 532 U.S. at 494 n. 7, 121 S.Ct. 1711.

Section 903 of the Controlled Substances Act

addresses the relationship between that act and state

law. It provides:

“No provision of this subchapter shall be con-

strued as indicating an intent on the part of the

Congress to occupy the field in which that provi-

sion operates, including criminal penalties, to the

exclusion of any State law on the same *175 sub-

ject matter which would otherwise be within the

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authority of the State, unless there is a positive

conflict between that provision of this subchapter

and that State law so that the two cannot consist-

ently stand together.”

21 U.S.C. § 903. Under the terms of section

903, states are free to pass laws “on the same sub-

ject matter” as the Controlled Substances Act un-

less there is a “positive conflict” between state and

federal law “so that the two cannot consistently

stand together.”

When faced with a comparable preemption pro-

vision, the Court recently engaged in an implied

preemption analysis to determine whether a federal

statute preempted state law. Wyeth v. Levine, –––

U.S. ––––, ––––, 129 S.Ct. 1187, 1196–1200, 173

L.Ed.2d 51 (2009).FN15

That is, the Court asked

whether **528 there is an “actual conflict” between

state and federal law. An actual conflict will exist

either when it is physically impossible to comply

with both state and federal law or when state law “

‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.’ ” Freightliner Corp., 514 U.S. at 287,

115 S.Ct. 1483 (quoting Hines v. Davidowitz, 312

U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

FN15. The provision at issue in Wyeth

provided that the federal statute did not

preempt state law unless there was a

“direct and positive” conflict between state

and federal law. Wyeth, 129 S.Ct. at 1196.

At first blush, one might think that the

Court would have looked to the standard

that Congress had expressly

provided—whether there is a “direct and

positive conflict” between the state and

federal laws—to determine the extent to

which federal law preempts state law. See

Cipollone v. Liggett Group, Inc., 505 U.S.

504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407

(1992) (holding that the preemptive effect

of a federal act is “governed entirely” by

an express preemption provision). Implied

preemption, however, addresses a similar

issue, and the Court used an implied pree-

mption analysis in Wyeth without any dis-

cussion. 129 S.Ct. at 1196–1200. Given

Wyeth, we follow a similar course here.

The Court has applied the physical impossibil-

ity prong narrowly. Wyeth, 129 S.Ct. at 1199 (so

stating); id. at 1209 (Thomas, J., concurring in the

judgment).FN16

For example, in *176Barnett Bank

v. Nelson, 517 U.S. 25, 116 S.Ct. 1103, 134

L.Ed.2d 237 (1996), the question was whether “a

federal statute that permits national banks to sell in-

surance in small towns pre-empts a state statute that

forbids them to do so.” Id. at 27, 116 S.Ct. 1103.

Although the two statutes were logically inconsist-

ent, the Court held that it was not physically im-

possible to comply with both. Id. at 31, 116 S.Ct.

1103. A national bank could simply refrain from

selling insurance. See Wyeth, 129 S.Ct. at 1209

(Thomas, J., concurring in the judgment)

(explaining physical impossibility test).

FN16. Justice Thomas noted that the Court

had used different formulations to explain

when it would be physically impossible to

comply with both state and federal laws

and questioned whether the Court had ap-

plied that standard too strictly. Wyeth, 129

S.Ct. at 1208–09 (opinion concurring in

the judgment). In his view, the physical

impossibility test is too narrow, and asking

whether state law stands as an obstacle to

the purposes of the federal law too

amorphous. He would have asked whether

the state and federal law are in direct con-

flict. Id.; see Caleb Nelson, Preemption,

86 Va. L. Rev. 225, 260–61 (2000)

(reasoning that historically and practically

preemption reduces to a “logical contradic-

tion” test).

Under that reasoning, it is not physically im-

possible to comply with both the Oregon Medical

Marijuana Act and the federal Controlled Sub-

stances Act. To be sure, the two laws are logically

inconsistent; state law authorizes what federal law

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prohibits. However, a person can comply with both

laws by refraining from any use of marijuana, in

much the same way that a national bank could com-

ply with state and federal law in Barnett Bank by

simply refraining from selling insurance.

Because the “physical impossibility” prong of

implied preemption is “vanishingly narrow,” Caleb

Nelson, Preemption, 86 Va. L. Rev. 225, 228

(2000), the Court's decisions typically have turned

on the second prong of implied preemption analys-

is—whether state law “stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.” See Hines, 312 U.S. at

67, 61 S.Ct. 399 (stating test). In Barnett Bank, for

example, the Court stated, as a self-evident proposi-

tion, that a state law that prohibited national banks

from selling insurance when federal law permitted

them to do so would stand as an obstacle to the full

accomplishment of Congress's purpose, but it then

added “unless, of course, that federal purpose is to

grant [national] bank[s] only a very limited permis-

sion, that is, permission to sell insurance to the ex-

tent that state law also grants permission to do so.”

Barnett Bank, 517 U.S. at 31, 116 S.Ct. 1103

(emphasis in original). Having considered the text

and history of the federal statute and finding no

basis for implying such a limited permission, the

Court held that the state statute was preempted. Id.

at 35–37, 116 S.Ct. 1103.

*177 The Court has reached the same conclu-

sion when, as in this case, state law permits what

federal law prohibits. Michigan Canners & Freez-

ers Association v. Agricultural Marketing and Bar-

gaining Bd., 467 U.S. 461, 104 S.Ct. 2518, 81

L.Ed.2d 399 (1984). In Michigan Canners, federal

law prohibited food producers' associations from

interfering with an individual food producer's de-

cision whether to bring that individual's products to

the market on his or her own or to sell them through

the association. Id. at 464–65, 104 S.Ct. 2518.

Michigan law on this issue generally tracked feder-

al law; however, Michigan law permitted food pro-

ducers' associations to apply to a state board for au-

thority **529 to act as the exclusive bargaining

agent for all producers of a particular commodity.

Id. at 466, 104 S.Ct. 2518. When the state board

gave a producer's association that authority, all pro-

ducers of a commodity had to adhere to the terms

of the contracts that the association negotiated with

food processors, even when the producer had de-

clined to join the association. Id. at 467–68, 104

S.Ct. 2518.

In considering whether federal law preempted

the Michigan law, the Court held initially that it

was physically possible to comply with both state

and federal law. The Court reasoned that, because

the “Michigan Act is cast in permissive rather than

mandatory terms—an association may, but need

not, act as exclusive bargaining representat-

ive—this is not a case in which it is [physically]

impossible for an individual to comply with both

state and federal law.” Id. at 478 n. 21, 104 S.Ct.

2518 (emphasis in original). The Court went on to

conclude, however, that “because the Michigan Act

authorizes producers' associations to engage in con-

duct that the federal Act forbids, it ‘stands as an

obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.’ ” Id.

at 478, 104 S.Ct. 2518 (quoting Hines, 312 U.S. at

67, 61 S.Ct. 399).

The preemption issue in this case is similar to

the issue in Michigan Canners and Barnett Bank. In

this case, ORS 475.306(1) affirmatively authorizes

the use of medical marijuana. The Controlled Sub-

stances Act, however, prohibits the use of

marijuana without regard to whether it is used for

medicinal purposes. As the Supreme Court has re-

cognized, by classifying marijuana as a Schedule I

drug, Congress has expressed its judgment that

marijuana has no recognized medical use. See

Raich, 545 U.S. at 14, 125 S.Ct. 2195. Congress did

not intend to enact a limited prohibition on the use

of *178 marijuana— i.e., to prohibit the use of

marijuana unless states chose to authorize its use

for medical purposes. Cf. Barnett Bank, 517 U.S. at

31–35, 116 S.Ct. 1103 (reaching a similar conclu-

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sion regarding the scope of the national bank act).

Rather, Congress imposed a blanket federal prohib-

ition on the use of marijuana without regard to state

permission to use marijuana for medical purposes.

Oakland Cannabis Buyers' Cooperative, 532 U.S.

at 494 & n. 7, 121 S.Ct. 1711.

Affirmatively authorizing a use that federal law

prohibits stands as an obstacle to the implementa-

tion and execution of the full purposes and object-

ives of the Controlled Substances Act. Michigan

Canners, 467 U.S. at 478, 104 S.Ct. 2518. To be

sure, state law does not prevent the federal govern-

ment from enforcing its marijuana laws against

medical marijuana users in Oregon if the federal

government chooses to do so. But the state law at

issue in Michigan Canners did not prevent the fed-

eral government from seeking injunctive and other

relief to enforce the federal prohibition in that case.

Rather, state law stood as an obstacle to the en-

forcement of federal law in Michigan Canners be-

cause state law affirmatively authorized the very

conduct that federal law prohibited, as it does in

this case.

To the extent that ORS 475.306(1) affirmat-

ively authorizes the use of medical marijuana, fed-

eral law preempts that subsection, leaving it

“without effect.” See Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120

L.Ed.2d 407 (1992) (“[S]ince our decision in Mc-

Culloch v. Maryland, 4 Wheat. 316, 427 [4 L.Ed.

579] (1819), it has been settled that state law that

conflicts with federal law is ‘without effect.’ ”).

Because ORS 475.306(1) was not enforceable when

employer discharged employee, no enforceable

state law either authorized employee's use of

marijuana or excluded its use from the “illegal use

of drugs,” as that phrase is defined in ORS

659A.122(2) and used in ORS 659A.124. It follows

that BOLI could not rely on the exclusion in ORS

659A.122(2) for “uses authorized * * * under other

provisions of state * * * law” to conclude that med-

ical marijuana use was not an illegal use of drugs

within the meaning of ORS 659A.124.

*179 The commissioner reached a different

conclusion regarding preemption, as would the dis-

senting opinion. We address the commissioner's

reasoning before turning to the dissent. The com-

missioner, for his part, adopted the reasoning from

an informal Attorney General opinion, dated June

17, 2005, **530 which concluded that the Con-

trolled Substances Act does not invalidate the Ore-

gon Medical Marijuana Act. Letter of Advice dated

June 17, 2005, to Susan M. Allan, Public Health

Direction, Department of Human Services. In

reaching that conclusion, the Attorney General fo-

cused on those parts of the Oregon Medical

Marijuana Act that either exempt medical

marijuana users from state criminal liability or

provide an affirmative defense to criminal charges.

Id. at 2.FN17

In concluding that those exemptions

from state criminal liability were valid, the Attor-

ney General relied on a line of federal cases hold-

ing that “Congress cannot compel the States to en-

act or enforce a federal regulatory program.” See

Printz v. United States, 521 U.S. 898, 935, 117

S.Ct. 2365, 138 L.Ed.2d 914 (1997) (so stating);

New York v. United States, 505 U.S. 144, 162, 112

S.Ct. 2408, 120 L.Ed.2d 120 (1992) (stating that

“the Constitution has never been understood to con-

fer upon Congress the ability to require the States

to govern according to Congress's instructions”).

The Attorney General concluded that Oregon was

free, as a matter of state law, to exempt medical

marijuana use from criminal liability because Con-

gress lacks the authority to require Oregon to pro-

hibit that use.

FN17. The Attorney General's opinion

stated that the Oregon Medical Marijuana

Act “protects users who comply with its

requirements from state criminal prosecu-

tion for production, possession, or delivery

of a controlled substance.” Letter Opinion

at 2. In support of that statement, the opin-

ion cited former ORS 475.306(2) (2003),

which provided an affirmative defense for

persons who possessed excess amounts of

marijuana if possession of that amount of

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marijuana were medically necessary. See

Or. Laws 2005, ch. 822, § 2 (repealing that

provision). The opinion also cited ORS

475.319 and ORS 475.309(9), which

provides an affirmative defense to criminal

liability for persons who have applied for

but not yet received a registry identifica-

tion card.

The Attorney General's opinion has no bearing

on the issue presented in this case for two reasons.

First, as noted, one subsection of the Oregon Med-

ical Marijuana Act affirmatively authorizes the use

of medical marijuana. *180ORS 475.306(1). Other

provisions exempt its use from state criminal liabil-

ity. See, e.g., ORS 475.309(1); ORS 475.319. In

this case, only the validity of the authorization mat-

ters. ORS 659A.122(2) excludes medical marijuana

use from the definition of “illegal use of drugs” for

the purposes of the state employment discrimina-

tion laws if state law authorizes that use. The Attor-

ney General's opinion, however, addresses only the

validity of the exemptions; it does not address the

validity of the authorization found in ORS

475.306(1). It thus does not address the issue that is

central to the resolution of this case.

Second, and more importantly, the validity of

the exemptions and the validity of the authorization

turn on different constitutional principles. The At-

torney General reasoned that the exemptions from

criminal liability are valid because “Congress can-

not compel the States to enact or enforce a federal

regulatory program”—a restriction that derives

from Congress's limited authority under the federal

constitution. See Printz, 521 U.S. at 935, 117 S.Ct.

2365 (stating limited authority); New York, 505

U.S. at 161–66, 112 S.Ct. 2408 (describing the

sources of that limitation). Under the Attorney Gen-

eral's reasoning and the United States Supreme

Court decisions on which his opinion relies, Con-

gress lacks authority to require states to criminalize

conduct that the states choose to leave unregulated,

no matter how explicitly Congress directs the states

to do so.

By contrast, there is no dispute that Congress

has the authority under the Supremacy Clause to

preempt state laws that affirmatively authorize the

use of medical marijuana. Whether Congress has

exercised that authority turns on congressional in-

tent: that is, did Congress intend to preempt the

state law? See Cipollone, 505 U.S. at 516, 112 S.Ct.

2608 (describing preemption doctrine). More spe-

cifically, the constitutional question in this case is

whether, under the doctrine of implied preemption,

a state law authorizing the use of medical marijuana

“stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.” See Hines, 312 U.S. at 67, 61 S.Ct. 399

(stating that test). Nothing in the Attorney General's

opinion addresses that question, and the commis-

sioner erred in finding an answer in the Attorney

*181 General's opinion**531 to a question that the

Attorney General never addressed.

The dissent addresses the issue that the Attor-

ney General's opinion did not and would hold for

alternative reasons that ORS 475.306(1) does not

stand as an obstacle to the full accomplishment of

Congress's purposes in enacting the Controlled

Substances Act. The dissent reasons that, because

ORS 475.306(1) does not “giv[e] permission to vi-

olate the Controlled Substances Act or affec [t] its

enforcement, [that subsection] does not pose an

obstacle to the federal act necessitating a finding of

implied preemption.” 348 Or. at 197, 230 P.3d at

539 (Walters, J., dissenting).FN18

In the dissent's

view, the fact that a state law affirmatively author-

izes conduct that federal law explicitly forbids is

not sufficient to find that the state law poses an

obstacle to the full accomplishment of the purposes

of the federal law and is thus preempted. The dis-

sent also advances what appears to be an alternative

basis for its position. It reasons that the Oregon

Medical Marijuana Act, as a whole, exempts med-

ical marijuana use from state criminal liability and

that ORS 475.306(1) is merely one part of that lar-

ger exemption. It appears to draw two different leg-

al conclusions from that alternative proposition. It

suggests that, to the extent ORS 475.306(1) merely

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exempts medical marijuana use from criminal liab-

ility, then Congress lacks power to require states to

criminalize that conduct under the line of cases that

the Attorney General cited. Alternatively, it sug-

gests that, because authorization is merely the other

side of the coin from exemption, authorizing med-

ical marijuana use poses no more of an obstacle to

the accomplishment of the purposes of the Con-

trolled Substances Act than exempting that use

from state criminal liability and thus that use is not

preempted. We begin with the test that the dissent

would employ in obstacle preemption cases.

FN18. The dissent phrases the test it would

apply in various ways throughout its opin-

ion. For instance, it begins its opinion by

stating that the Oregon Medical Marijuana

Act neither “permits [n]or requires the vi-

olation of the Controlled Substances Act.”

348 Or. at 190, 230 P.3d at 536 (Walters,

J., dissenting). Because the Oregon Medic-

al Marijuana Act permits (and indeed au-

thorizes) conduct that violates the Con-

trolled Substances Act, we understand the

dissent to use the word “permits” to mean

expressly purports to “giv[e] permission,”

as it later rephrases its test. We also note

that, if the Oregon Medical Marijuana Act

“required” a violation of federal law, then

the physical impossibility prong of implied

preemption would apply.

*182 As noted, the dissent would hold that a

state law stands as an obstacle to the execution and

accomplishment of the full purposes of a federal

law (and is thus preempted) if the state law purports

to override federal law either by giving permission

to violate the federal law or by preventing the fed-

eral government from enforcing its laws. We do not

disagree that such a law would be an obstacle. But

it does not follow that anything less is not an

obstacle. Specifically, we disagree with the dis-

sent's view that a state law that specifically author-

izes conduct that a federal law expressly forbids

does not pose an obstacle to the full accomplish-

ment of the purposes of the federal law and is not

preempted.

If Congress chose to prohibit anyone under the

age of 21 from driving, states could not authorize

anyone over the age of 16 to drive and give them a

license to do so. The state law would stand as an

obstacle to the accomplishment of the full purposes

and objectives of Congress (keeping everyone un-

der the age of 21 off the road) and would be pree-

mpted. Or, to use a different example, if federal law

prohibited all sale and possession of alcohol, a state

law licensing the sale of alcohol and authorizing its

use would stand as an obstacle to the full accom-

plishment of Congress's purposes. ORS 475.306(1)

is no different. To the extent that ORS 475.306(1)

authorizes persons holding medical marijuana li-

censes to engage in conduct that the Controlled

Substances Act explicitly prohibits, it poses the

same obstacle to the full accomplishment of Con-

gress's purposes (preventing all use of marijuana,

including medical uses).

The dissent, however, reasons that one state

case and four federal cases support its view of

obstacle preemption. It reads State v. Rodriguez,

317 Or. 27, 854 P.2d 399 (1993), as providing dir-

ect support for its view. See 348 Or. at 197–98, 230

P.3d at 539–40 (Walters, J., dissenting). In Rodrig-

uez, federal **532 Immigration and Naturalization

Service (INS) agents obtained evidence pursuant to

a federal administrative warrant that was valid un-

der federal law but not under the Oregon Constitu-

tion, and the question was whether suppressing

evidence obtained pursuant to that warrant in a

*183 state criminal proceeding was an obstacle to

the accomplishment of the full purposes and object-

ives of the federal immigration laws. This court

held that it was not. Suppressing evidence in the

state criminal proceeding was completely unrelated

to the INS's ability to carry out its separate mission

of enforcing the federal immigration laws in a fed-

eral administrative proceeding. This court did not

hold in Rodriguez, as the dissent appears to con-

clude, that state law will be an obstacle to the full

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accomplishment of the purposes of the federal law

only if state law interferes with the federal govern-

ment's ability to enforce its laws.

The dissent also relies on four United States

Supreme Court cases “for the proposition that states

may impose standards of conduct different from

those imposed by federal law without creating an

obstacle to the federal law.” 348 Or. at 199, 230

P.3d at 541 (Walters, J., dissenting). It follows, the

dissent reasons, that the mere fact that state law au-

thorizes conduct that federal law forbids does not

mean that state law is an obstacle to the accom-

plishment of the purposes of the federal law. The

four cases on which the dissent relies stand for a

narrower proposition than the dissent draws from

them. In interpreting the applicable federal statute

in each of those cases, the Court concluded that

Congress intended to leave states free to impose

complementary or supplemental regulations on a

person's conduct. None of those cases holds that

states can authorize their citizens to engage in con-

duct that Congress explicitly has forbidden, as ORS

475.306(1) does.

In Wyeth, one of the cases on which the dissent

relies, the defendant argued that permitting state

tort remedies based on a drug manufacturer's failure

to warn would “interfere with ‘Congress's purpose

to entrust an expert agency to make drug labeling

decisions that strike a balance between competing

objectives.’ ” 129 S.Ct. at 1199 (quoting the de-

fendant's argument). After considering the history

of the federal statute, the Court concluded that

“Congress did not intend FDA oversight to be the

exclusive means of ensuring drug safety and effect-

iveness.” Id. at 1200. The Court concluded instead

that Congress intended to allow complementary

state tort remedies. Id. Given that interpretation of

the federal law, the Court determined that the state

tort remedy *184 was consistent with, and not an

obstacle to, Congress's purpose in requiring warn-

ings in the first place. Put differently, the state law

was not an obstacle to Congress's purpose because

Congress intended to permit states to continue en-

forcing complementary tort remedies.

The Court's opinion in Florida Lime & Avo-

cado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct.

1210, 10 L.Ed.2d 248 (1963), on which the dissent

also relies, is to the same effect. In that case, the

Court determined that a federal marketing order set-

ting minimum standards for picking, processing,

and transporting avocados did not reflect a congres-

sional intent to prevent states from enacting laws

governing “the distribution and retail sale of those

commodities.” 373 U.S. at 145, 83 S.Ct. 1210. As

the Court explained, “[c]ongressional regulation at

one end of the stream of commerce does not, ipso

facto, oust all state regulation at the other end.” Id.

The Court accordingly concluded that there was

“no irreconcilable conflict with the federal regula-

tion [that] require[d] a conclusion that [the state

law] was displaced.” Id. at 146, 83 S.Ct. 1210.FN19

The Court's reasoning implies that, when, as

in this case, there is an irreconcilable conflict

between **533 state and federal law, that conflict

“requires a conclusion that [the state law] [i]s dis-

placed.” See id.

FN19. The dissenting opinion quotes the

dissent in Florida Lime & Avocado for the

proposition that the conflict between state

and federal law in that case was unmistak-

able. See 348 Or. at 200–02, 230 P.3d at

541–42 (Walters, J., dissenting) (quoting

Florida Lime & Avocado, 373 U.S. at 173,

83 S.Ct. 1210 (White, J., dissenting)). The

majority, however, disagreed on that point,

373 U.S. at 145–46, 83 S.Ct. 1210, and its

conclusion that federal law left room for

complementary state law was pivotal to its

conclusion that the federal marketing order

did not preempt California law.

In both Florida Lime & Avocado and Wyeth

and the other two cases the dissent cites, the Court

interpreted the applicable federal statute to permit

complementary or supplementary state law.FN20

None of those cases considered state *185 laws that

authorized conduct that the federal law specifically

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prohibited, as is present in this case, and none of

those cases stands for the proposition that such a

law would not be an obstacle to the accomplish-

ment of the full purposes of Congress. Rather, the

Court's opinion in Florida Lime & Avocado points

in precisely the opposite direction; it teaches that

when, as in this case, the state and federal laws are

in “irreconcilable conflict,” federal law will dis-

place state law. See 373 U.S. at 146, 83 S.Ct. 1210.

FN20. The other two United States Su-

preme Court cases on which the dissent re-

lies are to the same effect. Neither case in-

volved a federal statute that, as the Court

interpreted it, prohibited what the state law

authorized. See California v. ARC America

Corp., 490 U.S. 93, 103, 109 S.Ct. 1661,

104 L.Ed.2d 86 (1989) (explaining that

nothing in an earlier decision that only dir-

ect purchasers may bring an action under

section 4 of the Clayton Act “suggests that

it would be contrary to congressional pur-

poses for States to allow indirect pur-

chasers to recover under their own antitrust

laws”); Silkwood v. Kerr–McGee Corp.,

464 U.S. 238, 256, 104 S.Ct. 615, 78

L.Ed.2d 443 (1984) (holding that, even

though Congress “was well aware of the

NRC's exclusive authority to regulate

safety matters,” Congress also had

“assumed that state law remedies, in

whatever form they might take, were avail-

able to those injured in nuclear incidents”).

As noted, the dissent also advances what ap-

pears to be an alternative ground for its position.

The dissent reasons that ORS 475.306(1) does not

affirmatively authorize the use of medical

marijuana; it views that subsection instead as part

of a larger exemption of medical marijuana use

from state criminal laws. The dissent's reasoning is

difficult to square with the text of ORS 475.306(1).

That subsection provides that a person holding a re-

gistry identification card “may engage” in the lim-

ited use of medical marijuana. Those are words of

authorization, not exemption. Beyond that, if ORS

475.306(1) were merely part of a larger exemption,

then no provision of state law would authorize the

use of medical marijuana. If that were true, medical

marijuana use would not come within one of the ex-

clusions from the “illegal use of drugs,” as that

phrase is defined in ORS 659A.122, and the protec-

tions of ORS 659A.112 would not apply to employ-

ee. See ORS 659A.124 (so providing).FN21

FN21. There is a suggestion in the dissent

that ORS 475.306(1) is integral to the goal

of exempting medical marijuana use from

state criminal liability and cannot be

severed from the remainder of the Oregon

Medical Marijuana Act. That act, however,

contains an express severability clause,

and it is not apparent why the provisions

exempting medical marijuana use from

state criminal liability cannot “be given

full effect without [the authorization to use

medical marijuana found in ORS

475.306(1) ].” See Or. Laws 1999, ch. 4, §

18 (providing the terms for severing any

part of the act held invalid).

[10] Another thread runs through the dissent. It

reasons that, as a practical matter, authorizing med-

ical marijuana use is no different from exempting

that use from criminal liability. It concludes that, if

exempting medical marijuana use from criminal li-

ability is not an obstacle to the accomplishment of

the purposes of the Controlled Substances Act and

is *186 thus not preempted, then neither is a state

law authorizing medical marijuana use. The diffi-

culty with the dissent's reasoning is its premise. It

presumes that a law exempting medical marijuana

use from liability is valid because it is not preemp-

ted. As the Attorney General's opinion explained,

however, Congress lacks the authority to compel a

state to criminalize conduct, no matter how expli-

citly it directs a state to do so. When, however, a

state affirmatively authorizes conduct, Congress

has the authority to preempt that law and did so

here. The dissent's reasoning fails to distinguish

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those two analytically separate constitutional prin-

ciples.

In sum, whatever the wisdom of Congress's

policy choice to categorize marijuana as a Schedule

I drug, the Supremacy Clause requires that we re-

spect that choice when, as in this case, state law

stands as an obstacle to the accomplishment of the

full purposes of the federal law. Doing so means

that **534ORS 475.306(1) is not enforceable.

Without an enforceable state law authorizing em-

ployee's use of medical marijuana, that basis for ex-

cluding medical marijuana use from the phrase

“illegal use of drugs” in ORS 659A.122(2) is not

available.

[11] As noted, a second possible exclusion

from the definition of “illegal use of drugs” exists,

which we also address. The definition of “illegal

use of drugs” also excludes from that phrase “the

use of a drug taken under supervision of a licensed

health care professional.”FN22

ORS 659A.122(2).

On that issue, as noted above, employee's physician

signed a statement that employee had been dia-

gnosed with a debilitating condition, that marijuana

may mitigate the symptoms or effects of that condi-

tion, but that the physician's statement was not a

prescription to use marijuana. That statement was

sufficient under the Oregon Medical Marijuana Act

to permit *187 employee to obtain a registry identi-

fication card, which then permitted him to use

marijuana to treat his condition. Employee's physi-

cian recommended that employee use marijuana

five to seven times daily by inhalation. However,

without a prescription, employee's physician had no

ability to control either the amount of marijuana

that employee used or the frequency with which he

used it, if employee chose to disregard his physi-

cian's recommendation.

FN22. The commissioner did not consider

whether this exclusion applied, in part be-

cause the Court of Appeals had stated in

Washburn that the use of marijuana for

medical purposes was “not unlawful,”

which the parties and the commissioner

concluded was sufficient to answer em-

ployer's reliance on ORS 659A.124. Al-

though we could remand this case to the

commissioner to permit him to address

whether this exclusion applies, its applica-

tion in this case turns solely on an issue of

statutory interpretation, an issue on which

we owe the commissioner no deference. In

these circumstances, we see no need to re-

mand and unnecessarily prolong the resol-

ution of this case.

The question thus posed is whether employee

used marijuana “under supervision of a licensed

health care professional.” The answer to that ques-

tion turns initially on what a person must show to

come within that exclusion. As explained below,

we conclude that two criteria must be met to come

within the exclusion. As an initial matter, the

phrase “taken under supervision” of a licensed

health care professional implies that the health care

professional is monitoring or overseeing the pa-

tient's use of what would otherwise be an illegal

drug. See Webster's Third New Int'l Dictionary

2296 (unabridged ed. 2002) (defining supervise as

“coordinate, direct, and inspect continuously and at

first hand the accomplishment of” a task); cf.

Moore, 423 U.S. at 143, 96 S.Ct. 335 (holding that

a physician who prescribed methadone, a Schedule

II controlled substance, without regulating his pa-

tients' dosage and with no precautions against his

patients' misuse of methadone violated section 841

of the Controlled Substances Act).

Beyond supervision, when a health care profes-

sional administers a controlled substance, the ex-

clusion requires that the Controlled Substances Act

authorize him or her to do so. That follows from the

text and context of the definition of illegal use of

drugs set out in ORS 659A.122(2). After providing

that the illegal use of drugs does not include “the

use of a drug taken under supervision of a licensed

health care professional,” the legislature added “or

other uses authorized under the Controlled Sub-

stances Act.” The phrase “or other uses authorized

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by the Controlled Substances Act” is telling. The

words “other uses” imply that the preceding use

(the use of drugs taken under supervision of a li-

censed health care professional) also refers to a use

authorized by the Controlled Substances Act. See

Webster's at 1598 (defining “other” as “being the

one (as of two or more) left”).

*188 Not only does the text of ORS

659A.122(2) imply that the use of controlled sub-

stances taken under supervision of a licensed health

care professional refers to uses that the Controlled

Substances Act authorizes, but the context leads to

the same conclusion. See Stevens v. Czerniak, 336

Or. 392, 401, 84 P.3d 140 (2004) (explaining that

context includes “ ‘the preexisting common law and

the statutory framework within which the law was

enacted’ ”) (quoting Denton and Denton, 326 Or.

236, 241, 951 P.2d 693 (1998)). As noted, the Con-

trolled Substances Act both authorizes physicians

and other health care professionals to administer

**535 controlled substances for medical and re-

search purposes and defines the scope of their au-

thority to do so. See Moore, 423 U.S. at 138–40, 96

S.Ct. 335 (so holding). We infer that, in excluding

“the use of a drug taken under supervision of li-

censed health care professionals” from the phrase

“illegal use of drugs,” the legislature intended to

refer to those medical and research uses that, under

the Controlled Substances Act, physicians and other

health care professionals lawfully can put con-

trolled substances.

Another contextual clue points in the same dir-

ection. The exclusion in ORS 659A.122(2) for the

use of a drug taken under supervision of a licensed

health care professional is virtually identical to an

exclusion in the definition of illegal use of drugs

found in the ADA. See 42 U.S.C. § 12111(6)(A)

(excluding “the use of a drug taken under supervi-

sion by a licensed health care professional, or other

uses authorized by the Controlled Substances Act”).

The federal exclusion contemplates medical and re-

search uses that the Controlled Substances Act au-

thorizes, and there is no reason to think that, in ad-

opting the same exclusion, the Oregon legislature

had any different intent in mind. Cf. Stevens, 336

Or. at 402–03, 84 P.3d 140 (looking to the federal

counterpart to ORCP 36 to determine Oregon legis-

lature's intent). Given the text and context of ORS

659A.122(2), we conclude that, when a health care

professional administers a controlled substance, the

exclusion for the “use of a drug taken under super-

vision of a licensed health care professional” refers

to those medical and research uses that the Con-

trolled Substances Act authorizes.

*189 In sum, two criteria are necessary to come

within the exclusion for the use of a controlled sub-

stance taken under supervision of a licensed health

care professional: (1) the Controlled Substances

Act must authorize a licensed health care profes-

sional to prescribe or administer the controlled sub-

stance and (2) the health care professional must

monitor or supervise the patient's use of the con-

trolled substance. In this case, we need not decide

whether the evidence was sufficient to prove the

second criterion— i.e., whether employee's physi-

cian monitored or oversaw employee's use of

marijuana. Even if it were, the Controlled Sub-

stances Act did not authorize employee's physician

to administer (or authorize employee to use)

marijuana for medical purposes. As noted, under

the Controlled Substances Act, physicians may not

prescribe Schedule I controlled substances for med-

ical purposes. At most, a physician may administer

those substances only as part of a Food and Drug

Administration preapproved research project.FN23

Because there is no claim in this case that employee

and his physician were participating in such a

project, employee's use of marijuana was not taken

under supervision of a licensed health care profes-

sional, as that phrase is used in ORS 659A.122(2).

FN23. Gonzales v. Oregon, 546 U.S. 243,

126 S.Ct. 904, 163 L.Ed.2d 748 (2006),

addressed a different issue from the one

presented here. The Controlled Substances

Act provides that Schedule II controlled

substances have accepted medical uses,

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and the issue in Gonzales was whether the

Attorney General had exceeded his stat-

utory authority in defining which uses of

Schedule II controlled substances were le-

gitimate medical uses. In this case, by con-

trast, the Controlled Substances Act

provides that Schedule I controlled sub-

stances, such as marijuana, have no accep-

ted medical use. That congressional policy

choice both addresses and conclusively re-

solves the issue that the Attorney General

lacked statutory authority to address in

Gonzales.

Because employee did not take marijuana un-

der supervision of a licensed health care profession-

al and because the authorization to use marijuana

found in ORS 475.306(1) is unenforceable, it fol-

lows that employee was currently engaged in the il-

legal use of drugs and, as the commissioner found,

employer discharged employee for that reason. Un-

der the terms of ORS 659A.124, “the protections of

ORS 659A.112 do not apply” to employee. The

commissioner's final order on reconsideration rests,

however, on the premise *190 that the protections

of ORS 659A.112 —specifically, the requirement

for employer to engage in a “meaningful interactive

process” as an aspect of reasonable accommoda-

tion—do apply to employee. Under ORS 659A.124,

that premise is mistaken, and the commissioner's

revised order on reconsideration cannot stand. Both

the commissioner's order and the Court of Appeals

decision affirming **536 that order on procedural

grounds must be reversed.

Given the number of the issues discussed in

this opinion, we summarize the grounds for our de-

cision briefly. First, employer preserved its chal-

lenge that, as a result of the Controlled Substances

Act, the use of medical marijuana is an illegal use

of drugs within the meaning of ORS 659A.124.

Second, two potentially applicable exclusions from

the phrase “illegal use of drugs”—the use of drugs

authorized by state law and the use of drugs taken

under the supervision of a licensed health care pro-

fessional—do not apply here. Third, regarding the

first potentially applicable exclusion, to the extent

that ORS 475.306(1) authorizes the use of medical

marijuana, the Controlled Substances Act preempts

that subsection. We note that our holding in this re-

gard is limited to ORS 475.306(1); we do not hold

that the Controlled Substances Act preempts provi-

sions of the Oregon Medical Marijuana Act that ex-

empt the possession, manufacture, or distribution of

medical marijuana from state criminal liability.

Fourth, because employee was currently engaged in

the illegal use of drugs and employer discharged

him for that reason, the protections of ORS

659A.112, including the obligation to engage in a

meaningful interactive discussion, do not apply.

ORS 659A.124. It follows that BOLI erred in ruling

that employer violated ORS 659A.112.

The decision of the Court of Appeals and the

revised order on reconsideration of the Commis-

sioner of the Bureau of Labor and Industries are re-

versed.

WALTERS, J., dissented and filed an opinion, in

which DURHAM, J., joined.

WALTERS, J., dissenting.

Neither the Oregon Medical Marijuana Act nor

any provision thereof permits or requires the viola-

tion of the Controlled Substances Act or affects or

precludes its enforcement. Therefore, neither the

Oregon act nor any provision thereof stands as an

obstacle to the federal act. Because the *191 major-

ity wrongly holds otherwise, and because, in doing

so, it wrongly limits this state's power to make its

own laws, I respectfully dissent.

The United States Constitution establishes a

system of dual sovereignty in which state and fed-

eral governments exercise concurrent authority over

the people. Printz v. United States, 521 U.S. 898,

920, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Each

government is supreme within its own sphere. Id. at

920–21, 117 S.Ct. 2365. In enacting the federal

Controlled Substances Act, which prohibits all use

of marijuana, Congress acted pursuant to its author-

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ity under the Commerce Clause. Gonzales v. Raich,

545 U.S. 1, 5, 125 S.Ct. 2195, 162 L.Ed.2d 1

(2005). In enacting the Oregon Medical Marijuana

Act, which permits the circumscribed use of medic-

al marijuana, Oregon acted pursuant to its historic

power to define state criminal law and to protect

the health, safety, and welfare of its citizens.

Whalen v. Roe, 429 U.S. 589, 603, 603 n. 30, 97

S.Ct. 869, 51 L.Ed.2d 64 (1977); Robinson v. Cali-

fornia, 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d

758 (1962).

In enacting the Controlled Substances Act,

Congress did not have the power to require Oregon

to adopt, as state criminal law, the policy choices

represented in that federal act. Congress does not

have the power to commandeer a state's legislative

processes by compelling it to enact or enforce fed-

eral laws. New York v. United States, 505 U.S. 144,

149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).

“[E]ven where Congress has the authority under the

Constitution to pass laws requiring or prohibiting

certain acts, it lacks the power directly to compel

the States to require or prohibit those acts.” Id. at

166, 112 S.Ct. 2408.

Because it had authority to enact the Controlled

Substances Act, Congress did, however, have the

power to expressly preempt state laws that conflict

with the Controlled Substances Act. A cornerstone

of the Supreme Court's Supremacy Clause analysis

is that “[i]n all pre-emption cases, and particularly

in those in which Congress has legislated in a field

which the States have traditionally occupied,” the

Court “start[s] with the assumption that the historic

police powers of the States were not to be super-

seded *192 by the Federal Act unless that was the

clear and **537 manifest purpose of Congress.”

Wyeth v. Levine, ––– U.S. ––––, ––––, 129 S.Ct.

1187, 1194–95, 173 L.Ed.2d 51 (2009) (internal el-

lipsis and quotation marks omitted). The Court re-

lies on that presumption out of “respect for the

States as independent sovereigns in our federal sys-

tem.” Id. at 1195 n. 3 (internal quotation marks

omitted).

As the majority recognizes, the Controlled Sub-

stances Act does not include an express preemption

provision. 348 Or. at 173–75, 230 P.3d at 526–27.

It contains, instead, “a saving clause” intended to

“preserve state law.” See Wyeth, 129 S.Ct. at 1196

(so construing nearly identical provision in Federal

Food, Drug, and Cosmetic Act). Thus, the majority

should begin its analysis “with the assumption that

the historic police powers [exercised by the State of

Oregon] were not to be superseded by the Federal

Act * * *.” Id. at 1194–95.

The majority does not do so. It instead implies,

from the federal policy choice that the Controlled

Substances Act represents, a Congressional intent

to preempt provisions of Oregon law that makes a

different policy choice. 348 Or. at 184, 230 P.3d at

532–33. To understand the majority's error in ap-

plying the “obstacle” prong of the United States Su-

preme Court's implied preemption analysis, it is im-

portant to understand the purposes and effects of

the federal and state laws that are at issue in this

case.

Congress enacted the federal Controlled Sub-

stances Act, as the majority explains, to “conquer

drug abuse” and “control” traffic in controlled sub-

stances. 348 Or. at 172–73, 230 P.3d at 526. In list-

ing marijuana as a Schedule I drug, Congress de-

cided that marijuana has no recognized medical

use. Therefore, “Congress imposed a blanket feder-

al prohibition” on the use of marijuana. 348 Or. at

178, 230 P.3d at 529. As noted, Congress did not

expressly indicate, however, that states could not

enact their own criminal drug laws or make differ-

ent decisions about the appropriate use of

marijuana.

Oregon did in fact enact its own criminal drug

laws, including the state Uniform Controlled Sub-

stances Act (*193ORS 475.005 to 475.285 and

ORS 475.840 to 475.980). That act controls and

punishes, as state criminal law, the use of all sub-

stances that the federal government classifies as

Schedule I drugs, including marijuana. ORS

475.840; ORS 475.856 – 475.864. Oregon also en-

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acted the Oregon Medical Marijuana Act. That act

exempts certain medical marijuana users from the

state criminal drug laws, including from the state

Uniform Controlled Substances Act. The Oregon

Medical Marijuana Act does not permit Oregonians

to violate the federal Controlled Substances Act or

bar the federal government from continuing to en-

force the federal Controlled Substances Act against

Oregonians. The Oregon Attorney General de-

scribed the purpose and reach of the Oregon Medic-

al Marijuana Act in a letter ruling:

“The Act protects medical marijuana users who

comply with its requirements from state criminal

prosecution for production, possession, or deliv-

ery of a controlled substance. See, e.g., ORS

475.306(2), 475.309(9) and 475.319. 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]. The Act is explicit

in its scope: ‘Except as provided in ORS 475.316

and 475.342, a person engaged in or assisting in

the medical use of marijuana [in compliance with

the terms of the Act] is excepted from the crimin-

al laws of the state for possession, delivery or

production of marijuana, aiding and abetting an-

other in the possession, delivery or production of

marijuana or any other criminal offense in which

possession, delivery or production of marijuana is

an element * * *.’ ORS 475.309(1).”

Letter of Advice dated June 17, 2005, to Susan

M. Allen, Public Health Director, Department of

Human Services, 2 (first emphasis in original; later

emphases added).FN1

The **538 Oregon Attorney

General also concluded in that letter ruling *194

that the decision of the Supreme Court in Raich

—that Congress had authority to enact the blanket

prohibitions in the Controlled Substances Act—had

no effect on the validity of Oregon's statute:

FN1. Consistent with the Attorney Gener-

al's letter opinion, ORS 475.300(4)

provides that ORS 475.300 to 475.346

—the entirety of the Oregon Medical

Marijuana Act—is “intended to make only

those changes to existing Oregon laws that

are necessary to protect patients and their

doctors from criminal and civil penal-

ties[.]” (Emphasis added.)

“ 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 we have under-

stood to be the law since the adoption of the

Act.”FN2

FN2. The question that the Oregon Attor-

ney General answered in the letter opinion

was “Does Gonzales v. Raich, 545 U.S. [1,

125 S.Ct. 2195, 162 L.Ed.2d 1] (2005), * *

* invalidate the Oregon statutes authoriz-

ing the operation of the Oregon Medical

Marijuana Program?” The Attorney Gener-

al said, “No.” The Attorney General ex-

plained that “[t]he Act protects medical

marijuana users who comply with its re-

quirements from state criminal prosecution

for production, possession, or delivery of a

controlled substance,” and cited ORS

475.309, ORS 475.319, and ORS

475.306(2). At the time of the Attorney

General opinion, ORS 475.306(2) (2003)

provided:

“If the individuals described in subsec-

tion (1) of this section possess, deliver or

produce marijuana in excess of the

amounts allowed in subsection (1) of this

section, such individuals are not excep-

ted from the criminal laws of the state

but may establish an affirmative defense

to such charges, by a preponderance of

the evidence that the greater amount is

medically necessary to mitigate the

symptoms or effects of the person's de-

bilitating medical condition.”

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ORS 475.306(2) (2003), amended by Or.

Laws 2005, ch. 822, § 2 (emphasis ad-

ded). Thus, one of the subsections of the

Oregon Medical Marijuana Act that the

Attorney General cited used words of

authorization very similar to those used

in ORS 475.306(1).

Throughout the opinion, the Attorney

General discussed the continued validity

of the Oregon Medical Marijuana Act as

a whole and did not in any way differen-

tiate between provisions of the act that

authorize medical marijuana use and

those that create an exemption from state

prosecution. In fact, the Attorney Gener-

al specifically opined that the state is en-

titled to continue to issue registry identi-

fication cards—cards that, by definition,

are documents that identify persons “au-

thorized to engage in the medical use of

marijuana.” ORS 475.302(10) (emphasis

added).

Id. (emphasis in original).

The majority seems to accept that the Oregon

Medical Marijuana Act does not bar the federal

government from enforcing the Controlled Sub-

stances Act. The majority acknowledges that “state

law does not prevent the federal government from

enforcing its marijuana laws against medical

marijuana users in Oregon if the federal govern-

ment chooses to do so.” 348 Or. at 178, 230 P.3d at

529. The majority also seems to accept, as a result,

that provisions of the Oregon Medical Marijuana

Act that exempt persons from state criminal liabil-

ity do not pose an obstacle to the Controlled Sub-

stances Act.FN3

However, in the majority's view,

one subsection of the Oregon Medical *195

Marijuana Act, ORS 475.306(1), presents an

obstacle to the Controlled Substances Act and does

so solely because it includes words of authoriza-

tion. Id. at 178–79, 230 P.3d at 529–30.

FN3. The majority expressly leaves that

question open, however. 348 Or. at 172 n.

12, 230 P.3d at 526 n. 12.

As I will explain in more detail, I believe that

the majority is incorrect in reaching that conclu-

sion. First, the words of authorization used in ORS

475.306(1) and other subsections of the Oregon

Medical Marijuana Act serve only to make operable

the exceptions to and exemptions from state prosec-

ution provided in the remainder of the act. The

words of authorization used in those subsections do

not grant authorization to act that is not already in-

herent in the exceptions or exemptions, nor do they

permit the violation of federal law. Second, in in-

stances in which state law imposes standards of

conduct that are different than the standards of con-

duct imposed by federal law, but both laws can be

enforced, the Supreme Court has not held the state

laws to be obstacles to the federal laws, nor dis-

cerned an implied Congressional intent to preempt

the state laws from the different policy choices

made by the federal government. Thus, the majority

is incorrect in finding that the standard of conduct

and policy choice represented by the Controlled

Substances Act prohibits a different state standard

of conduct and policy choice. Both the Oregon

Medical Marijuana Act and the **539 Controlled

Substances Act can be enforced, and this state court

should not interpret the federal act to impliedly

preempt the state act.

The Oregon Medical Marijuana Act contains a

number of subsections that use words of authoriza-

tion. Those subsections are interwoven with the

subsections of the act that except and exempt med-

ical marijuana users from criminal liability. For in-

stance, ORS 475.309, which the majority cites as a

provision that excepts persons who use medical

marijuana from state criminal liability, 348 Or. at

179–80, 230 P.3d at 530, provides that a person en-

gaged in or assisting in the medical use of

marijuana “is excepted from the criminal laws of

the state” if *196 certain conditions, including hold-

ing a “ registry identification card, ” are satisfied.

(Emphases added.) ORS 475.302(10) defines

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“registry identification card” as follows:

“a document issued by the department that identi-

fies a person authorized to engage in the medical

use of marijuana and the person's designated

primary caregiver, if any.”

(Emphasis added.)

Consider also ORS 475.306(1), the section of

the act that the majority finds offending. That sub-

section references both ORS 475.309, the exception

section, and the registry identification card neces-

sary to that exception. ORS 475.306(1) provides:

“A person who possesses a registry identifica-

tion card issued pursuant to ORS 475.309 may

engage in, and a designated primary caregiver of

such person may assist in, the medical use of

marijuana only as justified to mitigate the symp-

toms or effects of the person's debilitating medic-

al condition.”FN4

FN4. The majority recognizes that it is es-

sential to read ORS 475.306(1) and ORS

475.302(10) together to find an affirmative

authorization to use marijuana for medicin-

al purposes. 348 Or. at 170–71, 230 P.3d at

525. However, the majority does not ex-

plain why it finds ORS 475.306(1) and not

ORS 475.302(10) preempted.

(Emphasis added.) Reading those three provi-

sions together, it is clear that ORS 475.306(1)

serves as a limitation on the use of medical

marijuana that the registry identification card and

ORS 475.309 together permit. Under ORS

475.306(1), a person who possesses a registry iden-

tification card issued pursuant to ORS 475.309 may

engage in the use the card permits “only as justified

to mitigate the symptoms or effects of the person's

debilitating medical condition.” (Emphasis added.)

ORS 475.319, another section of the act that

the majority cites as creating an exemption from

criminal liability, also depends on words of permis-

sion for its operation. 348 Or. at 179–80, 230 P.3d

at 530. ORS 475.319 creates an affirmative defense

to a criminal charge of possession of marijuana, but

only for persons who possess marijuana “in

amounts permitted under ORS 475.320.” (Emphasis

added.) ORS 475.320(1)(a) provides: “A registry

identification cardholder * * * may possess *197

up to six mature marijuana plants and 24 ounces of

usable marijuana.” (Emphasis added.)

The words of authorization used in ORS

475.306(1) are no different from the words of au-

thorization that are used in other sections of the act

and that are necessary to effectuate ORS 475.309

and ORS 475.319 and the exceptions to and exemp-

tions from criminal liability that they create. Those

words of authorization do not grant permission that

would not exist if those words were eliminated or

replaced with words of exception or exclusion.

Even if it did not use words of permission, the Ore-

gon Medical Marijuana Act would permit, for pur-

poses of Oregon law, the conduct that it does not

punish. Furthermore, the statutory sections that

provide that citizens may, for state law purposes,

engage in the conduct that the state will not punish

have no effect on the Controlled Substances Act

that is greater than the effect of the sections that de-

clare that the state will not punish that conduct.

Because neither the Oregon Medical Marijuana

Act nor any subsection thereof gives permission to

violate the Controlled Substances Act or affects its

enforcement, the Oregon act does not pose an

obstacle to the federal act necessitating a finding of

implied preemption. In State v. Rodriguez, 317 Or.

27, 854 P.2d 399 (1993), this court recognized

**540 that state and federal laws can prescribe dif-

ferent standards, each acting within its own author-

ity, without affecting the other's authority, and

without offending the Supremacy Clause. In that

case, the defendant had been arrested by federal im-

migration agents on a warrant that the state con-

ceded did not satisfy the oath or affirmation re-

quirement of Article I, section 9, of the Oregon

Constitution. The state argued, however, that, be-

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cause the warrant was valid under federal law, “the

Supremacy Clause render[ed] Article I, section 9,

inapplicable to the arrest * * *.” Id. at 34, 854 P.2d

399. The court rejected that argument and con-

cluded that preemption was not at issue because the

application of the state constitutional requirements

for an arrest warrant did not “affect the ability of

the federal government to administer or enforce its

* * * laws.” Id. at 36, 854 P.2d 399. Because the

court interpreted the state constitution not to im-

pose requirements on arrests by federal officers, the

state and the federal law did not conflict:

*198 “Because this court's interpretation of Art-

icle I, section 9, in this context, cannot and will

not interfere with the federal government in im-

migration matters, the Supremacy Clause has no

bearing on this case and this court is not

‘preempted’ from applying Article I, section 9, to

defendant's arrest.”

Id. Similarly, the Oregon Medical Marijuana

Act “cannot and will not interfere with” the federal

government's enforcement of the Controlled Sub-

stances Act and does not offend the Supremacy

Clause.

Instead of following Rodriguez, the majority

relies on two United States Supreme Court cases

for the proposition that state law that permits what

federal law prohibits is impliedly preempted. 348

Or. at 176–77, 230 P.3d at 528–29. The majority

then concludes that, “[t]o the extent that ORS

475.306(1) affirmatively authorizes the use of med-

ical marijuana, federal law preempts that subsec-

tion, leaving it ‘without effect.’ ” 348 Or. at 178,

230 P.3d at 529. I disagree with the majority's ana-

lysis for two reasons. First, the cases that the major-

ity cites stand only for the proposition that when

federal law bestows an unlimited power or right,

state law cannot preclude the exercise of that power

or right. The Controlled Substances Act does not

create a right; it prohibits certain conduct. Second,

other Supreme Court cases hold that when a federal

law does not create powers or rights but, instead,

sets standards for conduct, state law may set differ-

ent standards for the same conduct without offend-

ing the Supremacy Clause, as long as both sets of

laws may be enforced. By deciding not to punish

the medical use of marijuana, the Oregon Medical

Marijuana Act authorizes, for state law purposes,

conduct that the Controlled Substances Act prohib-

its. The Oregon Medical Marijuana Act does not,

however, offend the Supremacy Clause because it

does not affect enforcement of the Controlled Sub-

stances Act.

In the first of the two cases on which the ma-

jority relies, Barnett Bank v. Nelson, 517 U.S. 25,

116 S.Ct. 1103, 134 L.Ed.2d 237 (1996), a federal

statute explicitly granted national banks the unlim-

ited power to sell insurance in small towns. A state

statute forbade and impaired the exercise of that

power, and the court held that it was preempted.

*199 Michigan Canners & Freezers Associ-

ation v. Agricultural Marketing and Bargaining

Bd., 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399

(1984), the second case on which the majority re-

lies, concerned a conflict between the federal Agri-

cultural Fair Practices Act, which protects the rights

of producers of agricultural goods to remain inde-

pendent and to bring their products to market on

their own without being required to sell those

products through an association, and a Michigan

statute. Id. at 473, 104 S.Ct. 2518. As the court ex-

plained in Massachusetts Medical Soc. v. Dukakis,

815 F.2d 790, 796 (1st Cir.), cert. den., 484 U.S.

896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987), the Ag-

ricultural Fair Practice Act creates a “right to re-

frain from joining an association of producers[.]”

(Ellipses omitted.) The Michigan statute at issue

prevented the exercise of the right conferred by the

act by precluding an agricultural producer “from

marketing his goods himself” and “impos[ed] on

the producer the same incidents of association

membership with which Congress was concerned *

* *.” **541 Michigan Canners, 467 U.S. at 478,

104 S.Ct. 2518. The Court held that under those cir-

cumstances, the state statute was preempted.

Neither Barnett nor Michigan Canners stands

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for the proposition that a state statute that permits

conduct that the federal government punishes is

preempted. In those cases, the federal statutes did

not punish conduct; they created powers or rights.

The Court therefore struck down state statutes that

forbade, impaired or prevented exercise of those

powers or rights. Because the Controlled Sub-

stances Act does not create a federal power or right

and the Oregon Medical Marijuana Act does not

forbid, impair, or prevent the exercise of a federal

power or right, Barnett and Michigan Canners are

inapposite. The more relevant Supreme Court cases

are those that consider the circumstance that exists

when federal and state laws impose different stand-

ards of conduct. Those cases stand for the proposi-

tion that states may impose standards of conduct

different from those imposed by a federal law

without creating an obstacle to the federal law.

In California v. ARC America Corp., 490 U.S.

93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), the

Court considered, under the “obstacle prong” of its

“actual conflict” implied preemption analysis, the

conflict between Section 4 of the federal *200

Clayton Act, which authorizes only direct pur-

chasers to recover monopoly overcharges, and a

state statute, which expressly permits recovery by

indirect purchasers. The Supreme Court held that,

even if the state statute directly conflicted with the

goals of the federal law, as the Ninth Circuit had

held, the state statute was not preempted. The Su-

preme Court reasoned that states are not required to

pursue federal goals when enacting their own laws:

“It is one thing to consider the congressional

policies identified in Illinois Brick [v. State of

Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d

707 (1977) ] and Hanover Shoe [v. United Shoe

Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224,

20 L.Ed.2d 1231 (1968) ] in defining what sort of

recovery federal antitrust law authorizes; it is

something altogether different, and in our view

inappropriate, to consider them as defining what

federal law allows States to do under their own

antitrust law.”

Id. at 103, 109 S.Ct. 1661.

Other Supreme Court cases also illustrate the

Court's refusal to imply preemption, under the

“obstacle” prong of its implied preemption analysis,

where state and federal statutes set contrary stand-

ards or pursue contrary objectives. In Silkwood v.

Kerr–McGee Corp., 464 U.S. 238, 246, 104 S.Ct.

615, 78 L.Ed.2d 443 (1984), a case that the court in

ARC America cited as authority, the jury had awar-

ded the plaintiff a judgment of $10 million in punit-

ive damages against the defendant, a nuclear power

company. The defendant asserted that a conflict ex-

isted between the state law that permitted the judg-

ment and a federal law regulating nuclear power

plants, with which the defendant had complied.

Despite an earlier ruling that the Nuclear Regulat-

ory Commission had exclusive authority to regulate

the safety of nuclear power plants,FN5

and even

though the Court accepted that “there is tension

between the conclusion that safety regulation is the

exclusive concern of the federal law and the con-

clusion that a State may nevertheless award dam-

ages based on its own law of liability,” id. at 256,

104 S.Ct. 615, the Court refused to invalidate the

state law.

FN5. Pacific Gas & Elec. v. Energy Re-

sources Conservation & Development

Comm'n, 461 U.S. 190, 211–13, 103 S.Ct.

1713, 75 L.Ed.2d 752 (1983).

In Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248

(1963), a federal *201 statute authorized the mar-

keting of Florida avocados on the basis of weight,

size, and picking date; California, however, regu-

lated the marketing of avocados sold in the state on

the basis of oil content. As a result of the differing

standards, about six percent of Florida avocados

that were deemed mature under federal standards

were rejected from California markets. The

plaintiffs argued that the federal standard for regu-

lating Florida avocados preempted California's con-

flicting regulation. As the dissent argued:

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**542 “The conflict between federal and state

law is unmistakable here. The Secretary asserts

certain Florida avocados are mature. The state

law rejects them as immature. And the conflict is

over a matter of central importance to the federal

scheme. The elaborate regulatory scheme of the

marketing order is focused upon the problem of

moving mature avocados into interstate com-

merce. The maturity regulations are not peripher-

al aspects of the federal scheme.”

373 U.S. at 173, 83 S.Ct. 1210 (White, J., dis-

senting). The majority, however, concluded that the

test of whether an actual conflict existed was not

whether the laws adopted contrary standards, but

whether both laws could be enforced:

“The test of whether both federal and state regu-

lations may operate, or the state regulation must

give way, is whether both regulations can be en-

forced without impairing the federal superintend-

ence of the field, not whether they are aimed at

similar or different objectives.”

Id. at 142, 83 S.Ct. 1210 (emphasis added).

The Court's most recent case on the issue,

Wyeth v. Levine, ––– U.S. ––––, 129 S.Ct. 1187,

173 L.Ed.2d 51 (2009), is in accord. In that case,

the court was presented with a conflict between

state and federal law that the dissent characterized

as follows: “The FDA told Wyeth that Phenergan's

label renders its use ‘safe.’ But the State of Ver-

mont, through its tort law said: ‘Not so.’ ”FN6

Id.,

129 S.Ct. at 1231 (Alito, J. dissenting). Neverthe-

less, the majority upheld the state law. Although

*202 the two laws imposed contradictory standards,

the state law was not preempted.

FN6. The FDA had also adopted a regula-

tion declaring that “certain state law ac-

tions, such as those involving failure-

to-warn claims, ‘threaten FDA's statutorily

prescribed role as the expert Federal

agency responsible for evaluating and reg-

ulating drugs.’ ” Id. at 1200.

The cases that I have reviewed demonstrate

that the Supreme Court requires more as a basis for

implying a congressional intent to preempt a state

law than a Congressional purpose that is at odds

with the policy that a state selects. The Court has

permitted state laws that impose standards of con-

duct different than those set by federal laws to

stand unless the state laws preclude the enforce-

ment of the federal laws or have some other demon-

strated effect on their operation. The Court has

found state laws that forbid, impair or prevent the

exercise of federally granted powers or rights to be

preempted.

The majority does not contend, in accordance

with those cases, that ORS 475.306(1) or the Ore-

gon Medical Marijuana Act as a whole precludes

enforcement of the Controlled Substances Act or

has any other demonstrated effect on its

“accomplishment and execution.” The only

obstacles to the federal act that the majority identi-

fies are Oregon's differing policy choice and the

lack of respect that it signifies. 348 Or. at 184–85,

230 P.3d at 533.

As an example of the way it believes the Su-

premacy Clause to operate, the majority posits that,

if Congress were to pass a law prohibiting persons

under the age of 21 from driving, a state law au-

thorizing persons over the age of 16 to drive and

giving them a license to do so would be preempted.FN7

348 Or. at 180–81, 230 P.3d at 530–31. The

majority would be correct if Congress had authority

to make such a law and if Congress expressly pree-

mpted state laws allowing persons under the age of

21 to drive or indicated an intent to occupy the

field. However, without such statement of Congres-

sional intent, implied preemption does not necessar-

ily follow. As a sovereign state, Oregon has author-

ity to license its drivers and to choose its own age

requirements. If Oregon set at 16 years the minim-

um age for its drivers then, the Oregon driver li-

censes it issued would give 16–year–olds only state

permission to drive. *203 The Oregon law would

not be preempted, but neither would it protect

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16–year–olds from federal prosecution and liability.

FN7. As I read the majority opinion, a

state law providing that Oregon would not

punish drivers between the ages of 16 and

21, as opposed to permitting those persons

to drive, would withstand a Supremacy

Clause challenge.

As a result, an Oregon legislature considering

whether to enact such a law could decide, as a prac-

tical matter, that it would **543 not be in the in-

terest of its citizens to grant licenses that could res-

ult in federal prosecution. Suppose, however, that

Congress had passed the federal law that the major-

ity posits, but that federal officers were not enfor-

cing it. Or suppose further that the federal govern-

ment had announced a federal policy decision not

to enforce the federal law against “individuals

whose actions are in clear and unambiguous com-

pliance with existing state laws” permitting minors

to drive. Could Oregon not serve as a laboratory al-

lowing minors to drive on its roads under carefully

circumscribed conditions to permit them to acquire

driving skills and giving Congress important in-

formation that might assist it in determining wheth-

er its policy should be changed? Is not one of feder-

alism's chief virtues that “a single courageous State

may, if its citizens choose, serve as a laboratory;

and try novel social and economic experiments

without risk to the rest of the country”? See New

State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52

S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dis-

senting) (so contending).

In the case of medical marijuana, the federal

government in fact has announced that it will not

enforce the Controlled Substances Act against

“individuals whose actions are in clear and unam-

biguous compliance with existing state laws permit-

ting the medical use of marijuana.”FN8

Oregon is

not the only state that permits the use of medical

marijuana, and at least one state is considering rules

to “identify requirements for the licensure of produ-

cers and cannabis production facilities.” New Mex-

ico's “Lynn and Erin Compassionate Use Act,”

2007 New Mexico Laws ch. 210, § 7 (SB 523).FN9

FN8. Memorandum from David W. Ogden,

Deputy Attorney General for Selected

United States Attorneys on Investigations

and Prosecutions in States Authorizing the

Medical Use of Marijuana (Oct. 19, 2009)

(available at http:// blogs. usdoj. gov/ blog/

archives/ 192) (accessed Apr. 6, 2010)

(emphasis in original).

FN9. New Mexico's “Lynn and Erin Com-

passionate Use Act,” 2007 New Mexico

Laws ch. 210, § 7 (SB 523), requires relev-

ant state agencies to develop rules that

“identify requirements for the licensure of

producers and cannabis production facilit-

ies and set forth procedures to obtain li-

censes,” as well as “develop a distribution

system for medical cannabis” that com-

ports with certain requirements. The New

Jersey “Compassionate Use Medical

Marijuana Act,” S119, Approved PL 2009,

c. 307, § 7, provides for the creation of

“alternate treatment centers, each of which

“shall be authorized to acquire a reason-

able initial and ongoing inventory, as de-

termined by the department, of

marijuana seeds or seedlings and

paraphernalia, possess, cultivate, plant,

grow, harvest, process, display, manu-

facture, deliver, transfer, transport, dis-

tribute, supply, sell, or dispense

marijuana, or related supplies to qualify-

ing patients or their primary caregivers

who are registered with the department

pursuant to section 4 of * * * this act.”

The Maine Medical Marijuana Act

provides for the creation of “nonprofit

dispensaries” which are authorized to

dispense up to two and one-half ounces

of marijuana to qualified patients. Me.

Rev. Stat. title 22, § 2428 – 7. In Rhode

Island, “The Edward O. Hawkins and

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Thomas C. Slater Medical Marijuana

Act,” provides for the creation of

“compassion centers,” which “may ac-

quire, possess, cultivate, manufacture,

deliver, transfer, transport, supply or dis-

pense marijuana * * * to registered qual-

ifying patients and their registered

primary caregivers.” R.I. Gen. Laws §

21–28.6–12.

*204 As I explained at the outset, the federal

government has no power to require that the Ore-

gon legislature pass state laws to implement or give

effect to federal policy choices. One sovereign may

make a policy choice to prohibit and punish con-

duct; the other sovereign may make a different

policy choice not to do so and instead to permit, for

purposes of state law only, other circumscribed

conduct. Absent express preemption, a particular

policy choice by the federal government does not

alone establish an implied intent to preempt con-

trary state law. A different choice by a state is just

that—different. A state's contrary choice does not

indicate a lack of respect; it indicates federalism at

work.

The consequence of the majority's decision that

the Controlled Substance Act invalidates ORS

475.306(1) is that petitioner is disqualified from the

benefits of ORS 659A.124, which imposes a re-

quirement of reasonable accommodation. The ma-

jority states that it does not decide “whether the le-

gislature, if it chose to do so and worded Oregon's

disability law differently, could require employers

to reasonably accommodate otherwise qualified

**544 disabled employees who use medical

marijuana to treat their disabilities.” 348 Or. at 172

n. 12, 230 P.3d at 526 n. 12. Indeed, different

words could be used for that purpose. For instance,

the legislature could state expressly in ORS chapter

659A that disabled persons who would be entitled

to the *205 affirmative defense set forth in ORS

475.319 (a provision the majority does not find

preempted) are not disqualified from the protec-

tions of the Oregon Disability Act, including the re-

quirement of reasonable accommodation. Or, to be

even more careful, the legislature could state, in

chapter 659A, the conditions that a medical

marijuana user must meet to be entitled to the pro-

tections of the Oregon Disability Act without any

reference to the Oregon Medical Marijuana Act. If

the legislature took either of those actions, reason-

able accommodation would not be tied to the provi-

sion of the Oregon Medical Marijuana Act that the

majority finds to be of “no effect.”

Although such changes could secure the right

of reasonable accommodation for disabled persons

who use medical marijuana in compliance with

Oregon law, the changes would not eliminate the

questions that the majority's analysis raises about

the validity of other provisions of the Oregon Med-

ical Marijuana Act that use words of authorization

or about the reach of Oregon's legislative authority.

If the majority decision simply represents a formal-

istic view of the Supremacy Clause that permits

Oregon to make its own choices about what con-

duct to punish (and thereby to permit) as long as it

phrases its choices carefully, perhaps my concern is

overstated. But as I cannot imagine that Congress

would be concerned with the phrasing, rather than

the effect, of state law, I not only think that the ma-

jority is wrong, I fear that it wrongly limits the le-

gislative authority of this state. If it does, it not only

limits the state's authority to make its own medical

marijuana laws, it limits the state's authority to en-

act other laws that set standards of conduct differ-

ent than the standards set by the federal govern-

ment. Consider just one statute currently on the

books—Oregon's Death with Dignity Act.

Oregon's Death with Dignity Act affirmatively

authorizes physicians to use controlled substances

to assist suicide.FN10

In *206Gonzales v. Oregon,

546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748

(2006), the Supreme Court considered the validity

of a federal Interpretive Rule that provided that

“using controlled substances to assist suicide is not

a legitimate medical practice and that dispensing or

prescribing them for this purpose is unlawful under

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the [Controlled Substances Act].” Id. at 249, 126

S.Ct. 904. The Supreme Court decided that the In-

terpretive Rule was invalid and did not decide

whether the federal rule preempted the Oregon act.

But if the federal government were to adopt a stat-

ute or a valid rule to the same effect, would this

court hold that, because the Oregon Death with

Dignity Act grants physicians permission to take

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 recog-

nized 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 hu-

mane and dignified manner when that pa-

tient 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 re-

quest for medication for the purpose of

ending his or her life in a humane and dig-

nified manner in accordance with [the

Act].”

“[T]he [Interpretive Rule] does not purport to

pre-empt state law in any way, not even by con-

flict 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., dis-

senting) (emphasis in original).

I do not understand why, in our system of dual

sovereigns, Oregon must fly only in federal forma-

tion 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.

DURHAM, J., joins in this opinion.

Or.,2010.

Emerald Steel Fabricators, Inc. v. Bureau of Labor

and Industries

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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.”).

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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

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

o oooo oo oo oooo ooo oo oo oooo oo oooooo o oo oo oo ooo o o ooo o o o o oo oo oo oooo o o o oooo oo oo o oooo o o oo oo oooo o oooo o oo o o oo oooo ooooo oooooo o oo ooo o o oo o o ooo oo oooo o oo o o oo oooo oooooo o o oo ooooooo oo ooo ooo o ooo ooo oooo o ooo oo o aaaaaooooo oo oooo ooo aaaraooooo oo oooo ooo oo oooo ooo oooo oo oooo o o oooooo

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

ooooo m o

o oooooo o o o o

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

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

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