In an August 10, 2012
post, Arizoneout reported on the formal Attorney General's
Opinion that has put the whole dispensary licensing process
in jeopardy once again. In the press release announcing the
opinion, Arizona Attorney General Tom Horne emphasized that the
opinion was "without regard to my views," as Horne is on
record opposing the Arizona Medical Marijuana Act
(AMMA).
Instead, Horne characterized the opinion as being "prepared by
professional attorneys entirely on the basis of legal precedent,
without regard to policy consideration." The press
release went on to state that the
opinion was based on two recent cases that "compel[led]"
Horne's office to issue the formal opinion.
Arizoneout is a blawg, meaning that it is a blog about law.
So today and in a future post or two, Arizoneout is going to
examine those cases to see just how much support they offer to the
Attorney General's opinion.
The Oregon case, Emerald Steel Fabricators, Inc. v. Bureau of Labor
& Industries (BOLI), is not all that recent. It
was decided by the Oregon Supreme Court in April 2010, more than
two years before Horne's office issued the Arizona
opinion.
The Oregon Supreme Court considered a disability discrimination
claim brought by a drill press operator against his employer, a
steel products manufacturer. Originally hired on a temporary
basis, the employee was seeking a permanent position. Knowing
he would have to pass a drug test to gain permanent employment, he
disclosed to his supervisor that he had medical marijuana registry
ID card. The employee was fired within a week of making the
disclosure, and he filed a charge of disability
discrimination.
BOLI, the Oregon agency that investigates discrimination charges,
found in the employee's favor. The employer took the case
to the Oregon Supreme Court, arguing that because marijuana use and
possession remains unlawful under federal law, the employee was an
illegal drug user, excluded by the statutory definition of a
disabled person protected by Oregon law. The case turned on
whether Oregon's medical marijuana act was preempted by federal
law to the extent that it authorized the employee to use
marijuana. If the employee's marijuana use was authorized
by state law, then he was not excluded from protection of the
disability law.
Five of the seven justices on the Oregon Supreme Court sided with
the employer, holding that the Oregon Medical Marijuana Act did
indeed "authorize" the employee to use medical marijuana,
but that federal law preempted – meaning invalidated
– that state law. Because that specific section of
the medical marijuana act was invalid, the employer was free to
fire the employee for his use of medical marijuana because he was
an illegal drug user under federal law. On this very narrow
basis, the Oregon case does support the Arizona General's
Office opinion.
It is hard to argue, however, that the Oregon case
"compelled" Attorney General Horne to issue the formal
opinion. First of all, the Oregon Supreme Court has no
authority in Arizona. Its opinion on the federal preemption
question also is not binding on any federal court, including
federal courts in Arizona.
The Oregon Supreme Court also included a footnote that could have
significant implications in Arizona. In footnote 12, the
court said that it was expressing no opinion on whether
Oregon's legislature could word Oregon's disability law
differently so as to require employers to reasonably accommodate
disabled employees who use medical marijuana to treat their
disability.
In the AMMA the voters of Arizona have prohibited employers in this
state from discriminating against Qualified Patients who use
marijuana outside of work to treat debilitating medical
conditions. Oregon's Medical Marijuana Act has no such
provision.
Whether the Oregon Supreme Court's preemption analysis will be
followed by other courts remains to be seen. However, close
examination of that case makes it appear quite a stretch to argue
that the 2-year-old decision compelled the Arizona Attorney
General's office to issue its formal opinion when it did.
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