To date, the Department of Justice has sent five other states similar guidance letters.  Within the last month, Arizona, Rhode Island, Colorado, Hawaii, and Montana all received clarification of the Department's position on medical marihuana.  More recently, New Jersey sent a letter to the Department asking to clarify its position on state employee liability.  The Department has not responded yet. 

     All five states received the letters in response to either their proposed or adopted plans to license large-scale medical marihuana dispensaries.  With the exception of the Rhode Island letter, the Department of Justice wrote the letters because the states inquired about their rights.  The United States Attorney in Rhode Island wrote the state without request. 

     The federal letters all share similar language.  The letters remind state officials that marihuana is a schedule I substance and that enforcement of the Controlled Substances Act remains a core priority.  The letters distinguish enforcement priority between seriously ill individuals and large-scale commercial marihuana cultivations and distribution operations, emphasis on the latter. 

     The bigger issue is whether state officials or employees who are charged with implementing these licensing regulations are subject to liability under the Controlled Substances Act.  So far, the Washington letter is the only letter that specifically says state employees are not protected.  Other letters use broad language, a liberal interpretation of which could encompass state employees.

     For example, the Colorado letter says that it is well settled that a State cannot authorize violations of federal law and the Department is considering prosecuting those who "set up" marihuana growing facilities and dispensaries.  United States Attorneys from Arizona, Rhode Island, and California are committed to prosecuting those who "knowingly facilitate" the conduct of the dispensary owners.  The Hawaii letter says penalties will be enforced against those who seek to create marihuana distribution centers pursuant to the state licensing bill.  Conduct of the state employees charged with implementing the licensing regulations could be encompassed within the Department's broad definitions of liability.  Therefore, many of the states decided to put licensing on hold.  The Governor of Washington went so far as to veto the state's licensing legislation.  Feel free to view the Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Washington letters. 

Ever since California enacted the first medical marihuana law in the early 1990's, the interplay between the Federal Controlled Substances Act and state medical marihuana statutes have caused local governments and state agencies quite a headache.

     Many interpreted a 2009 letter from Assistant United States Attorney - Ogden - reporting that the federal government would not allocate its resources to prosecuting patients and distributors who are in "clear and unambiguous compliance" with state medical marihuana laws as the Obama administration's silent bow to state rights.  The consensus was that the political climate was shifting towards accepting medical marihuana as a therapeutic rather than a Schedule I controlled substance. 

     Fast forward two years later.  Federal raids and complaints against medical marihuana dispensaries are on the rise.  The recent nationwide crackdown is evidenced by the Department of Justice's response to a request to clarify rights regarding a proposed zoning ordinance in Oakland California.  The ordinance called for the licensure of industry-sized marihuana grow centers.  The Department responded by warning the City of Oakland that any commercial operation was a violation of federal law.  After the responsive letter was released, California's U.S. Attorney announced that if the City passed the law, it was likely that the city council and other local officers ordaining and enforcing the ordinance would face penalty.

     One month after the California show down, the Governor of Washington requested similar guidance from the U.S. Attorney General.  Specifically, the Governor wanted to know the Department's position in light of the Ogden and California letters.  The Governor further inquired whether state employees charged with inspecting and auditing licensed dispensaries would be immune from federal prosecution. 

     In a swift and pointed response, U.S. Attorneys from both the Eastern and Western Districts of Washington wrote that the proposed legislation is contrary to federal law, the department could pursue both civil and criminal penalty against dispensaries, and state employees who conducted activities mandated by the legislative proposals would not be immune from liability under the Controlled Substances Act.

     It seems the federal government has limited and further defined the scope of the Ogden letter.  Deference to use may only be given to individuals who do not manufacture or distribute medical marihuana.  Federal law enforcement agencies are not as concerned with seriously ill individuals who use medical marihuana in compliance with state law.  Rather, the federal government made it a point that its "limited resources" are more effectively spent enforcing the Controlled Substances Act against large-scale grow operations. 

     Whether state employees charged with implementing state licensing schemes are subject to liability may be in conflict with Section 885(d) of the Controlled Substances Act.  The Section states that no civil or criminal liability shall be imposed on any officer of any State who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.  For more information, please read the following California and Washington articles.

     Last week, Eric VanDussen was denied access to videotape court proceedings in the upcoming case of People v Anderson.  The Michigan Supreme Court reviewed the denial, remanded the issue, and required an explanation of why the "fair administration of justice" excluded Mr. VanDussen.  In a brief response, the Court of Appeals explained that because Mr. VanDussen supplemented his initial request with information showing that he is engaged in news gathering, he fits into the "media" category as defined by Administrative Order 1989-1 and will be able to film the proceedings. 

In a 5-4 decision in AT&T Mobility v Concepcion, that SCOTUsblog calls "super-significant" the United States Supreme Court ruled that the Federal Arbitration Act "FAA" preempts a California common-law rule that permits consumers to avoid contracts in which they have waived their class action rights.  Justice Scalia, writing for the majority, stated, "The overarching purpose of the FAA is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.  Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and creates a scheme inconsistent with the FAA." The dissent, led by Justice Stephen G. Breyer, opined that class action proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system.  For more information on the case, please see the following article: http://www.abajournal.com/news/article/the_end_of_consumer_class_actions_supreme_court_upholds_att_arbitration_con