*1 Law, 6, 2009, University School of at Argued March and submitted reconsideration Appeals revised order on Eugene, of Court of decision April reversed Labor and Industries Bureau of Commissioner FABRICATORS, INC., STEEL EMERALD Review, on Petitioner v. INDUSTRIES, LABOR AND
BUREAU OF
on Review.
Respondent
S056265)
(BOLI
A130422; SC
3004; CA
KISTLER, J.
160-b
161 KISTLER, J. per- Act authorizes
The
holding registry identification card to use
sons
475.306(1).
exempts
purposes.
It also
those
for medical
liability
manufacturing,
persons
for
from state criminal
marijuana, provided
delivering,
possessing
that certain
and
475.309(1).
Federal Controlled
conditions are met. ORS
The
seq., prohibits
§
manufac-
Act,
Substances
21USC 801 et
dispensation,
possession
ture, distribution,
and
of
its use to treat medical con-
even when state law authorizes
ditions. Gonzales v.
Raich,
1, 29,
2195,
545 US
125 S Ct
162
(2005);
L
1
Ed 2d
see United States v. Oakland Cannabis
Buyers’ Cooperative,
483, 486,
1711,
532 US
S Ct
(2001)(holding
necessity
L Ed 2d 722
that there is no medical
against manufacturing
exception
prohibition
to the federal
distributing marijuana).
question
poses
The
that this case
is how those state
employment
and federal laws intersect in the context of an
specifically, employer argues
claim;
that,
discrimination
marijuana possession
law,
because
is unlawful under federal
purposes,
even when used for medical
state law does not
require
employer
employee’s
to accommodate an
disabling
to treat a
medical condition.
Court
Appeals
reasoning
question,
of
declined
reach that
employer
preserved
Fabricators,
had not
it. Emerald Steel
(2008).
App
BOLI,
423,
Inc. v.
220 Or
Since has vomiting, cramps, attacks, nausea, all severe stomach substantially ability limited to eat. which have January his Between employee variety 1996 and used a November prescription drugs attempt in an to alleviate that condi- drugs proved tion. None of those effective for an extended period negative time, and some had effects. In *5 began using marijuana
employee to self-medicate his condition. April employee physician 2002,
In consulted with a purpose obtaining registry for the a identification card Marijuana physician Act. The under the Medical employee “debilitating signed has a medical a statement that “[mjarijuana may mitigate symptoms and that the condition” patient’s added, or effects of this condition.” The statement prescription however, “This is a for the use of medical not marijuana.” employee’sphysician signed The statement that the Act. That tracks the terms of registry act the identification directs state to issue cards to persons physician person a states that “the when has been diagnosed debilitating a with medical condition and the marijuana may mitigate symptoms medical use of or 475.309(2).1 prescription effects” of that condition. ORS No obtaining required prerequisite registry as a for a identifica- tion card. See id. physician’s employee statement,
Based on the registry 2002, obtained a identification card in June which he employee “engage renewed in 2003.2That card authorized * * * marijuana” subject the medical use of to certain 475.306(1). restrictions. ORS Possession of the card also exempted prosecution posses- him from state criminal for the marijuana, provided sion, distribution, and manufacture of 475.309(1). that he met certain conditions. ORS Employer products. January manufactures steel In employer employee temporary hired on a a basis as press operator. working employer, employee drill While for per day, although used medical one to three times Employee’s satisfactory, employer not at work. work was considering hiring permanent Knowing him on a basis. applicable The 2001 version of the statutes was in effect at the time of the gave proceeding. legislature events that rise to this Since has amended decision, ways those not in statutes but that affect our and we have cited to the 2009 version of the statutes. 475.309(7)(a)(C) requires person possessing registry ORS a a identification annually “[ulpdated card to submit written documentation from the cardholder’s attending physician person’s debilitating condition marijuana may mitigate symptoms medical use of of that effects” condition. 475.309(7)(b). so, person expired.” If the fails to do the card “shall be deemed per- pass drug as a condition of test that he would have to supervisor employee employment, he his told manent registry that he used identification card and had a supervisor problem; his docu- a medical he also showed response question physician. to a from his mentation employee supervisor, he had tried other medi- said that his way was the most effective cations but that any- employee’s supervisor nor treat his condition. Neither engaged management other discussion one else in regarding employee con- alternative treatments for his with discharged employee. supervisor later, dition. One week employee complaint later, filed a Two months (BOLI), alleging that Bureau of and Industries Labor *6 against employer him in of ORS had discriminated violation prohibits against discrimination an 659A.112. That statute qualified person disability because of a and otherwise requires, among things, employers other that “make reason- person’s disability doing accommodation” for a unless so able hardship employer. impose undue on the ORS would an 659A.112(2)(e). employee’s Having investigated complaint, charges against employer, alleging BOLI filed formal that employer discharged employee disability had because of his 659A.112(2)(c) (g) employer in violation of ORS and and that reasonably employee’s disability had failed to in violation of accommodate (f). 659A.112(2)(e) Employer and
ORS filed an answer and raised seven affirmative defenses. hearing parties’ evidence, After an administra- (ALJ) judge proposed
tive law found that ing issued a order in he which employee person the mean- was disabled within chapter employer of ORS 659A but had not dis- charged employee disability. because of his The ALJ found discharged employer employee instead that had because he discharging employee used and ruled that for that 659A.112(2)(c) (g). reason did not violate ORS or The ALJ employer rule, however, went on to had violated ORS 659A.112(2)(e) (f), prohibit employer and which from fail- ing reasonably physical to accommodate the “known or men- qualified person,” tal limitations ofan otherwise disabled denying employment opportunities to an otherwise qualified person the denial is based on the fail- disabled when physical ure “to make reasonable accommodation to the employee.” impairments of the mental Among things, employer’s other the ALJ ruled that “meaningful engage process” failure to in a interactive with employee, standing obligation alone, set out in violated 659A.112(2)(e) (f) reasonably to accommodate employee’s disability. employee ALJ also found had damages violations, suffered as a result ofthose and the com- adopted missioner of BOLI issued a final order that findings the ALJ’s regard. in that
Employer sought review of the commissioner’s order Appeals. argu employer’s in the Court of As we understand Appeals, ment in the Court of it ran as follows: requires interpreted consistently that ORS 659A.112 be (ADA), the federal Americans with Disabilities Act USC 12114(a) seq. provides § 12111 et Section of the ADA that the protections apply persons ADA do not to are cur who rently engaged illegal drugs, in the use of and the federal prohibits possession Controlled Act Substances of mari juana regard pur without to whether it is used for medicinal poses. employer follows, reasoned, It that the ADA does not apply persons currently engaged who are in the use of marijuana. provides ADA, medical that the who are Like the ORS 659A.124
protections apply persons of ORS 659A.112 do not
currently engaged illegal drugs. in the Employer interpreted reasoned if ORS 659A.112 is con sistently ADA, with the then ORS 659A.112 also does not apply persons currently engaged are who in medical mari *7 juana Employer any that, use. added in event, the United Supreme opinion Supremacy States Clause Court’s that in Raich and the
required interpretation. Appeals
The Court of did not reach the merits of employer’s argument. employer It concluded that had not presented argument agency pre- that to the and thus had not Accordingly, begin question served it. employer preserved we with the whether sought
the issues before BOLI that it to Appeals. raise in the Court of
Employer raised seven affirmative defenses in response complaint. to BOLI’s The fifth affirmative defense alleged: prescribes “Oregon con- that ORS 659A.112 be possible that consistent the extent in a manner strued to provisions Americanswith similar ofthe Federal
with per- That Act doesnot Actof as amended. Disabilities marijuana illegal is an mit the use of because drug under Federal Law.” enough encompass the affirmative defense is broad to
That
Appeals.
argument
employer
To be
that
made in the Court
spe-
employer’s
not refer
sure,
cifically
fifth affirmative defense does
alleges
However, it
that the ADA
to ORS 659A.124.
marijuana,
proposition
apply
persons
use
does not
who
12114(a),
necessarily depends
§
the fed-
on both USC
that
counterpart
659A.124, and the Controlled
eral
to ORS
fifth
defense also states
Substances Act. And the
affirmative
in the same manner
that ORS 659A.112 should be construed
employer
spe-
Although
could have been more
as the ADA.
sufficient to raise the stat-
cific,its fifth affirmative defense is
sought
argue
Appeals.3
utory
in the Court of
issue that it
Ordinarily,
expect
employer
we would
that
would
developed
legal arguments
support
of its fifth
have
fully
agency hearing.
more
at the
How
affirmative defense
Appeals
v.
ever, the Court of
issued its decision in Washburn
App
Products, Inc.,
104,
question open question” is unlawful under federal law is nothing suggests specificity points that more BOLI in its rules that required. (providing that affirmative defenses must be OAR 839-050-0130 Cfi waived). raised or *8 Supreme granted and that the United States Court had the government’s petition for certiorari in Raich to decide that question. Id. at 115 n 8. hearing employer case,
At the in this told ALJ (including that five of its affirmative defenses the fifth affir- defense) mative were “foreclosed the Washburn decision” withdrawing Employer but that it was “not them.” did not explain position. note, however, basis for that We that the Appeals’ Court of conclusion in Washburn that ORS require symmetry 659A.139 does not absolute between the state and federal antidiscrimination statutes and its conclu- marijuana sion that medical state law ORS 659A.124 as a basis for use is “not unlawful” under effectively foreclosed reliance on ORS 659A.139 and
employer’s fifth affirmative point arguing defense. There would little in be before the ALJ employee currently engaged illegal that in the use of drugs Appeals just if, as the Court of had stated in Washburn, marijuana illegal.4 the use of medical proposed is not The ALJ issued a Appeals order in which it ruled that the Court of among things, decision in controlled, Washburn other employer’s fifth affirmative defense. proposed
After the ALJ filed his
order, the United
Supreme
States
Court issued its decision in Raich and held
authority
that
had acted within its
under the
prohibiting
possession,
Commerce Clause in
manufac-
marijuana
ture, and distribution of
even when state law
purposes.
authorizes its use for medical
addressed the
BOLI Oregon’s invalidate that Raich did not It reasoned record. employer event, argument preemption the Court before raised a could have *9 replied Employer it read that, as in Raich. its decision issued legalization “Supreme has ruled that Raich, Court the obviously preempted This inval- federal law. Marijuana Employer Act.” also Medical idates the explained and fifth this issue in its fourth that it had raised “recite[d] is an that defenses, which affirmative illegal drug deferred to law, and that state law under federal arguments, considering parties’ the the federal law.” After stating reopen employer’s record, the motion to ALJ allowed ruling Supreme “[t]he consider the Court’s that forum will [employer’s] it is relevant in Raich to the extent ruled that the Controlled Later, the Commissioner case.” preempt Raich, in did not Act, which was at issue Substances Act. the position employer the record, read the took
As we protections agency that, like the of the federal the before apply per- protections to a ADA, of ORS 659A.112 do not the illegal drugs, phrase engaged that, a as a in the use of son controlling law, includes the use of medical result of federal arguments employer’s marijuana. were judi- We conclude sought preserve the issue that it to raise on sufficient to cial employer’s Appeals. sure, in the Court of To be review solely ques- pleaded, defense, as turned on a fifth affirmative tion of preemption statutory interpretation. Employer did not raise the required partic- argue that federal
issue or employer reading Oregon’s until asked the ular statutes Perhaps reopen Raich. the ALJ the record to consider ALJ to reopen However, once the the record. declined to could have reopen chose the record and the Commissioner ALJ chose to arguments employer’s preemption based on to address preemption arguments employer’s were Raich, federal then agency.5 properly the also before case, final order in this this court reversed issued his After Commissioner Forest Appeals in Washburn v. Columbia decision Washburn.
the Court of Appeals noted,
As the Court of reached a different regarding preservation, conclusion soning briefly. and we address its rea Appeals telling
The Court of in reasoned the ALJ that employer adopted defenses, Washburn foreclosed its affirmative specific employer defenses that the employer had Washburn asserted and that was now limited App difficulty, to those defenses. 220 Or at 437. The the Court Appeals explained, statutory of employer issues that sought
had raised in its affirmative defenses and judicial raise on review differed from the issues that employer had raised in Washburn. Id. Appeals misperceived view,
In our the Court of import employer Employer reasonably of what told the ALJ. acknowledged reasoning that the in Washburn controlled the separate raising related but Employer defenses that it was in this case. say advancing did not that it was the same issues employer that the Washburn, had asserted in and the Court Appeals holding erred in otherwise. Appeals employer
The Court of
also concluded that
preserved
argument regarding
preemptive
had not
its
interpreted
effect of the Controlled
Act,
Substances
*10
App
Raich.
Steel,
Emerald
220 Or
at
that,
437-38. It noted
on
judicial
employer argued
required
review,
that federal law
its
interpretation
Oregon’s
of
antidiscrimination statutes while
argued
agency
preempted
it had
before the
that federal law
Marijuana
Medical
Act. Id. We read the record
differently.
explained
employer
argu
above,
As
made both
.6
agency
ments before the
Products, Inc.,
(2006).
469, 480,
340 Or
Having employer preserved concluded that judicial sought review, issues it merits of those issues.7 begins to raise on turn we to Employer’s statutory argument 124(1), provides pro- with ORS 659A. which that “the * * * apply employee tections of ORS 659A.112 do not to currently engaging illegal drugs who is in the use of if the employer takes follows, action based on that conduct.”8 It employer 659A.112(2)(e) obligation that it reasons, had no under ORS (f) reasonably employee’s
and accommodate marijuana responding argument medical use. to that on dispute employee merits, the rently engaged BOLI does not that cur- marijuana, in the use of medical does it nor dispute employer discharged employee for that reason. arguments why Rather, BOLI advances two ORS 659A.124 support employer’s position. does not argument,
As we understand BOLI’sfirst
it contends
employer
that, because the commissioner found that
had vio
659A.112(2)(e)
(f) by failing
engage
lated ORS
“meaningful
and
in a
process,”
inappo
interactive
ORS 659A.124 is
precisely
opposite
site. We reach
conclusion. The commis
explained
engaging
“meaningful
sioner
in a
inter
process”
“mandatory
step
process
active
is the
first
in the
659A.112(2)(e)
(f)
reasonable accommodation” that ORS
require.
provides
protec
However, ORS 659A.124
that “the
apply”
employee
tions of ORS 659A.112 do not
to an
who is
currently engaged
illegal
drugs,
employer
in the
if the
Washington
We note that both California and
have considered whether their
marijuana
give
marijuana
state medical
laws
medical
users either a claim under
employment
implied right
California’s fair
Washington
law or an
of action under
against
employer
discharges
person
or refuses to hire a
for off-work
Management,
use. See Roe v. Teletech Customer Care
152 Wash
App 388,
(2009);
Ragingwire Telecommunications, Inc.,
takes terms of ORS 659A. illegal is an use 124, if medical meaning drugs then 659A.124, ORS of ORS within the use of obligation employer it whatever excused 659A.124 engage in a “mean under ORS 659A.112 have had would ingful process” otherwise accommodate interactive marijuana. employee’s of medical use argument. It second, alternative BOLI advances “employee’s argues entirely legal of medical use “illegal use of and thus not under state law” recog- meaning drugs” 659A.124. BOLI of ORS within Substances Act that the federal Controlled nizes, prohibits must, as it possession for medi- even when used of assumption argument purposes. BOLI’s rests on cal drugs” “illegal phrase 659A.124 does not in ORS the include uses use though legal even those that are under state law illegal BOLI never a matter of federal law. same uses are as assumption; however, a state for that identifies the basis drugs,” “illegal phrase used in use of as statute defines the guidance in turn to that statute for 659A.124, and we argument. resolving BOLI’s second provides, part: ORS 659A.122 659A.124, 659A.127 in this section and ORS “As used and 659A.130:
‡ ‡ íj: j}: “(2) drugs, the ‘Illegal drugs’ means use of use under state possession or distribution of which is unlawful Act, 21 the federal Controlled Substances law or under amended, 812, does not include the use of a U.S.C.A. but pro- a licensed health care drug supervision taken under fessional, under the Controlled or other uses authorized or federal provisions Act or under other of state Substances law.”9 drugs” parts. “illegal divides into two
The definition of use of drugs part that are included within the The first defines the drugs possession is unlawful definition—all whose use or Marijuana clearly falls within under state or federal law. (2001) 100(4) “illegal phrase ORS 659A. defined Before former 122(2). drugs.” legislature 659A. renumbered that definition as ORS
171 first of the definition. The second of the definition part part illegal excludes certain uses of what would otherwise be an a are drug. potentially applicable use of Two exclusions here: * * * (1) the authorized other pro- exclusion for “uses under * * * (2) visions of state and the for “the use of law” exclusion a taken under of a licensed health care drug supervision pro- fessional.” We consider each exclusion in turn. begin We with whether use question employee’s * * * marijuana medical is a authorized under other “us[e] * * *
provisions that, of state law.” We conclude as a matter of it statutory interpretation, Oregon is an authorized use. The Medical Act Marijuana affirmatively authorizes the use of medical in addition to marijuana, exempting its use from 475.306(1) state criminal ORS liability. Specifically, provides who identification person possesses registry “[a] card * * * * * * the medical use may engage marijuana” sub ject 475.302(10), to certain restrictions. ORS in turn, defines * * * a registry identification card as “a document that iden tifies a person authorized to in the medical use of engage marijuana.” those Reading together, two subsections we con 475.306(1) clude that ORS affirmatively authorizes the use of and, for medical marijuana purposes10 matter, as a statutory the use brings marijuana of medical within one of the exclu 659A.122(2).11 sions from the use of “illegal drugs” Oregon Marijuana The ballot title for the Medical Act confirms that inter (2009) (look pretation Gaines, 160, 172, 206 of the act. See State v. 346 Or P3d 1042 text). ing legislative history caption, “yes” statement, to confirm The vote result summary measure, enacted, and of the ballot title focused on the fact that the if permit-holders marijuana exemp would allow to use medical and referred to the summary. tion Pamphlet, from criminal laws at the end of the Official Voters’ “[ajllows 3, 1998, caption Nov 148. The stated that the measure medical use of limits; system.” permit “yes” within establishes The vote result state effect, summary prohibits ment was to the same and the stated that current law possession engag and manufacture of but that the measure “allows ing in, in, assisting marijuana.” Only summary medical use of Id. at the end of the “excepts permit applicant did the ballot title add that the measure holder or marijuana criminal statutes.” Id. Oregon Marijuana exempts Medical Act also use liability. (excepting persons holding regis- from state criminal See ORS (cre- try prohibitions); identification cards from certain state criminal ORS 475.319 ating prohibitions persons an affirmative defense certain criminal who do not registry complied hold identification cards but who have with the conditions nec- one). 659A.122(2) essary to obtain Because ORS excludes from the definition ofille- gal drugs only law, provisions use of those uses authorized state Marijuana provisions Medical Act that are relevant here are those Supremacy argues,
Employer however, that requires that we United States Constitution Clause of the consistently Oregon’s interpret the federal statutes employer’s point understand Act. We Controlled Substances 475.306(1) affirmatively that, the extent that ORS to be pre marijuana, federal law the use of medical authorizes empts effective state without that subsection marijuana, employee’s authorizing use the use ofmedical meaning begin by drug “illegal drugs” within of that of ORS 659A.124.12We question turn to that govern preemption. setting general principles that out the Act and the federal Controlled Substances We then discuss pre finally Act the Controlled Substances turn to whether empts extent that Act to the *13 affirmatively medical authorizes the use of state law marijuana. Supreme recently States Court summa
The United
governing
general principles
preemption:
rized the
inquiry
scope
pre-emptive
“Our
into the
of a statute’s
‘
purpose Congress
that
of
guided
“[t]he
effect is
the rule
every pre-emption
touchstone” in
case.’
is the ultimate
Medtronic,
470, 485, 116
2240, 135
Lohr,
US
S Ct
Inc. v.
518
(1996)
Schermerhorn,
v.
(quoting
L Ed 2d 700
Retail Clerks
(1963)).
96, 103,
219, 11 L
375 US
84 S Ct
Ed 2d 179
through
intent
a stat
Congress may
pre-emptive
indicate
through
pur
structure and
express language
ute’s
or
its
Co.,
519, 525,
Packing
v. Rath
430 US
97
pose. See Jones
* * *
(1977).
1305,
Pre-emptive
L Ed 2d 604
intent
S Ct
may
scope
inferred if the
of the statute indicates
also be
Congress
occupy
legislative
intended federal law to
field,
an actual
and
or if there is
conflict between state
affirmatively
marijuana,
opposed
provi-
medical
authorize
those
exempt
liability.
sions that
its use from criminal
employer’s preemption argument
issue that
raises is whether fed
preempts
eral law
to the extent that it authorizes the use of medi
marijuana.
holding
subsection,
preempt
cal
that federal law does
we do not
preempts
that federal
the other sections of the
hold
law
liability.
exempt
express
use from criminal
We also
no
Act that
opinion
question
legislature,
if it chose to do so and worded
on the
whether
reasonably
Oregon’s disability
differently,
require employers
could
accom
disability.
employees
modate disabled
who use medical
to treat
their
Rather,
opinion
Oregon legisla
limited
laws that the
our
arises from and is
to the
ture has enacted.
280, 287,
Freightliner Corp. Myrick,
v.
514 US
federal law.
(1995).
1483,
115 S Ct
With those we turn to the objectives Controlled Substances Act. The central of that act conquer drug legitimate “were to and to abuse control illegitimate Congress traffic in controlled substances. particularly prevent concerned with the need to the diversion drugs legitimate Raich, to illicit channels.” 545 US at (footnotes omitted). accomplish objectives, 12-13 To those comprehensive, regulatory regime created a closed that criminalizes the tion, manufacture, unauthorized distribu
dispensation, possession of controlled substances classified in five schedules. Id. at 13. explained
The Court has that: I drugs categorized “Schedule are as such because of their abuse, high potential use, lack of accepted medical and absence of any accepted safety for use in medically 812(b)(1). supervised treatment. [21 USC] These three § factors, varying gradations, categorize are also used to drugs in the example, other four schedules. For Schedule II substances high potential may also have a for abuse which *14 lead to severe psychological physical dependence, but unlike Schedule I drugs, they currently have a accepted 812(b).” medical use. [21 USC] § Congress’s Id. at 14. Consistent with determination that the through controlled substances listed in Schedule II V have currently accepted uses, medical the Controlled Substances physicians prescribe Act authorizes to those substances for provided they use, medical professional practice. that do so within the bounds of Moore,
See United States v. 423 US (1975).13By 142-43, 96 Ct L S 46 Ed 2d 333 contrast, 13 accomplish Two subsections of the Controlled Substances Act that result. 823(f) Attorney register physicians Section directs the General and other
174 any accepted lack I controlled substances Schedule because drugs prohibits “with all use ofthose use, federal law medical drug[s] part [Schedule I] exception being the sole pro- preapproved Drug research Administration a Food and 823(f) (recognizing ject.” § 21 14; US at see USC Raich, 545 drugs). exception I for the use of Schedule that marijuana I as a Schedule has classified 812(c), prohibits drug, § its manufac- and federal law 21 USC 841(a)(1). possession, § Cate- 21 USC I ture, distribution, and drug Congress’s gorizing reflects as a Schedule any accepted “lack[s] use, conclusion that any accepted safety [that an] for use there is absence (cit- medically supervised US at 14 Raich, treatment.” 545 in ing 812(b)(1)).Consistently § classification, USC Act that the Controlled Substances the Court has concluded necessity” exception permits does not contain a “medical possession manufacture, distribution, or for the medical treatment. Oakland Buyers’ Cooperative, Cannabis reclassify Despite mari- at 494 and n 7.14 efforts to 532 US drug juana, a Schedule I since the enactment it has remained Raich, US at 14-15 Substances Act. See of and n 23 Controlled (summarizing ultimately efforts,” “considerable marijuana). unsuccessful, to reschedule Act Section 903 of the Controlled Substances relationship that act and state law. It addresses between provides: subchapter provision of this shall be construed as “No Congress occupy
indicating
part
an intent on the
operates, including
provision
crimi-
the field in whichthat
any
penalties, to the exclusionof
State law on the same
nal
through
dispense
practitioners
listed in Schedule II
V. 21
controlled substances
823(f).
822(b)
persons registered
Attorney
authorizes
with the
§
USC
Section
regis-
dispense
"to the extent authorized
their
General to
controlled substances
conformity
provisions
subchapter.” 21 USC
tration and in
with the other
of this
822(b).
§
Buyers’
specific question
Cooperative
Cannabis
was whether
Oakland.
distributing
necessity exception manufacturing and
mari
there was a medical
however, that,
confusion,
juana.
explained,
“[l]est
we clar
The Court
there be
statute,
ify
nothing
analysis,
suggests that a distinction should be
in our
or the
manufacturing
distributing
prohibitions
and the other
on
drawn between
prohibitions
n 7.
Act.”
175 subject otherwise be within the author- matter which would State, positive unless there is a conflict between ity of the subchapter and that law so that provision of this State consistently together.” stand the two cannot section states are free 21USC 903. Under the terms of § matter” as the Controlled subject laws “on the same pass there is a conflict” between “positive Substances Act unless “so that the cannot consistently state and federal two together.” stand a comparable provi-
When faced with
preemption
sion, the Court
in an
recently engaged
implied preemption
to determine whether
federal statute
analysis
preempted
_
_
_
Levine,
v.
Wyeth
,
,
state law.
US
129 S
(2009).15
L
1187, 1196-1200,
is,
Ct
173
Ed 2d 51
That
Court asked whether
there is an “actual conflict” between
state and federal
An actual conflict
law.
will exist either
when it is
physically impossible
comply with both state
“
and federal law or when state law ‘stands as an obstacle to
and
accomplishment
execution of the full
purposes
”
Congress.’ Freightliner
Corp.,
objectives
The Court has
applied
physical
impossibility
(so
narrowly. Wyeth,
id. at
prong
L Ed 2d 237
permits
to sell insurance
small
ute that
towns
national banks
pre-empts
that forbids them to do so.”
a state statute
logically
Although
27.
the two statutes were
inconsis-
Id. at
physically impossible to
tent, the Court held that it was not
simply
comply
Id. at 31. A national bank could
with both.
*16
selling
Wyeth,
insurance. See
Under that it is not comply with both the Act and sure, the the federal Controlled Substances Act. To be two logically inconsistent; are state authorizes fed- laws law what prohibits. person comply However, eral law a can with both by refraining marijuana, from in much laws way comply same that a national bank could with state and by simply refraining selling federal in Barnett Bank law from insurance. “physical impossibility” prong
Because the
of
implied preemption
“vanishingly narrow,”
Nelson,
is
Caleb
(2000),
Preemption,
225,
L
86 Va Rev
228
the Court’s deci-
typically
prong
implied
sions
have turned on the second
of
preemption analysis
state law “stands as an obsta-
—whether
accomplishment
purposes
cle to the
and
execution of
full
objectives Congress.”
(stating
Hines,
See
Preemption, (reasoning historically prac- L Rev 86 Va 260-61 test). tically preemption ‘logical reduces to a contradiction” when, The Court has reached the same conclusion permits prohibits. case, this state law what federal law Michigan Agricultural Canners & Freezers Bd., v. 467 US (1984). Michigan 104 S Ct 81 L Ed 2d In prohibited producers’ Canners, federal law food associations interfering producer’s with an individual food decision bring products whether to his or her own or to sell them that individual’s to the market on
through the association. at Id. Michigan generally 464-65. law on this issue tracked federal Michigan permitted producers’ law; however, food asso- apply authority ciations to ato state board for to act as the bargaining agent producers particular exclusive commodity. for all aof gave pro-
Id. at 466. When the state board
authority,
producers
ducer’s association that
all
of a commod-
ity had to adhere to the terms of the contracts that the asso-
negotiated
processors,
ciation
with food
even when the
producer
join
had declined to
the association. Id. at 467-68.
considering
preempted
whether federal law
Michigan
possible
initially
physically
law, the Court held
that it was
comply
with both state and federal law. The Court
“Michigan
permis-
reasoned
because the
Act is cast in
*17
mandatory
may,
sive rather than
terms —an association
but
bargaining representative
not,
need
act as exclusive
is—this
[physically] impossible
not a case in which it for an individ-
comply
ual to
with both state and federal law.” Id. at 478 n 21
(emphasis
original).
in
The Court went on
conclude,
to
how-
Michigan
producers’
ever, that “because the
Act authorizes
engage
associations to
in conduct that the federal Act forbids,
accomplishment
it ‘stands as an obstacle to the
and execution
”
purposes
objectives Congress.’
of the full
and
of
Id. at 478
67).
(quoting Hines, 312 US at
preemption
issue in this case is similar to Michigan
issue in
Canners and Barnett
case,
Bank.
this
475.306(1) affirmatively
authorizes the use of medical
marijuana.
prohib-
The Controlled
Act,
Substances
however,
marijuana
regard
its the use of
without
to whether it is used
purposes.
Supreme
recog-
for medicinal
As the
Court has
by classifying marijuana
drug,
nized,
as a Schedule I
Congress
expressed
judgment
marijuana
has
its
has no
recognized
medical use.
Raich,
See
Affirmatively authorizing
that federal law
a use
implementation and exe-
an
stands as
obstacle
hibits
objectives
purposes
the Controlled
the full
cution of
Michigan
To
Canners,
To the extent
marijuana,
pre
federal law
of medical
authorizes the use
leaving
empts
Cipollone
subsection,
it
effect.” See
“without
Liggett Group,
504, 516, 112 S Ct
Inc., 505 US
v.
(“[S]ince
(1992)
our decision
2608,
The commissioner reached a different conclusion
regarding preemption,
dissenting opinion.
as would the
We
reasoning
turning
address the commissioner’s
before
to the
adopted
reasoning
part,
commissioner,
dissent. The
for his
Attorney
opinion,
17,
from informal
General
dated June
2005, which concluded that the Controlled
Act
Substances
Oregon
Marijuana
does not invalidate the
Medical
Act.
17, 2005,
Allan,
Letter of Advice dated June
Public Health
to Susan M.
Department
Director,
Human
Services.
reaching
Attorney
conclusion,
General focused on
parts
Oregon
Marijuana
those
Medical
Act that either
exempt
marijuana
liability
medical
users from state criminal
provide
charges.
or
an affirmative defense to criminal
Id. at
concluding
exemptions
2.17In
that those
from state criminal
liability
Attorney
valid,
were
General relied on a line of
holding
“Congress
compel
federal cases
cannot
regulatory program.”
States to enact or enforce a federal
See
Printz v. United States,
898, 935,
521 US
The General’s has no on presented the issue in this case for two First, reasons. Marijuana noted, one subsection of the Medical Act affirmatively marijuana. authorizes the use of medical ORS Attorney opinion The General’s stated that the “protects comply requirements Act prose users who with its from state criminal production, possession, delivery cution for of a controlled substance.” Letter Opinion support statement, opinion at 2. In ofthat cited former (2003), provided persons possessed which an affirmative defense for who excess possession medically amounts of if of that amount of were necessary. (repealing provision). opinion See Or Laws ch 2§ 475.309(9), provides also cited ORS 475.319 and ORS which an affirmative defense liability persons applied yet registry to criminal who have for but not received a identification card.
475.306(1). exempt provisions from state crim- its use Other 475.309(1); liability. e.g., 475.319. In this See, ORS ORS inal validity only 122(2) matters. ORS of the authorization case, the from the defi- use excludes medical 659A. purposes drugs” “illegal of the state for the nition of employment that if state law authorizes discrimination laws Attorney opinion, however, addresses The General’s use. validity exemptions; it does not address the of the the 475.306(1). validity It in ORS thus the authorization found of of that is central to the resolution address the issue does not this case. validity importantly, the
Second, and more
validity
exemptions
the authorization turn on dif-
and the
of
Attorney
principles.
rea-
General
ferent constitutional
liability
exemptions from criminal
are valid
that the
soned
compel
“Congress
the States to enact or
cannot
because
regulatory program”
restriction that
a
enforce
federal
—a
authority
Congress’s
under the federal
limited
derives
(stating limited
Printz,
By
dispute
contrast, there is no
has
authority
Supremacy
preempt
under the
Clause to
state
affirmatively
authorize the use of medical mari-
laws
juana.
Congress
authority
has exercised that
turns
Whether
pre-
congressional
is,
on
intent: that
did
intend
(describing
empt
Cipollone,
at
the state law? See
The dissent addresses the issue that the
opinion
General’s
did not and would hold for alternative rea-
475.306(1)
an
sons that ORS
does not stand as
obstacle to
enacting
accomplishment Congress’s purposes in
full
Controlled Substances Act. The dissent reasons
because
“giv[e] permission
does not
to violate the
affec[t]
[that
enforcement,
Controlled Substances Act or
its
pose
subsection] does not
obstacle to
federal act neces-
sitating
finding
implied preemption.”
Medical
Marijuana
mean
law,
Substances Act.”
As accomplishment of an to the execution stands as obstacle (and preempted) purposes if thus a federal law the full of by giving purports either override federal law the state law permission by preventing the fed- federal law or to violate the disagree enforcing government do not its laws. We eral from But it does not follow an obstacle. that such a law would be disagree Specifically, anything not an obstacle. we less is specifically that a state law that the dissent’s view expressly does that a federal law forbids authorizes conduct accomplishment pur- pose the full of the not poses obstacle preempted. and is not of the federal law age prohibit anyone under the of If chose to anyone driving, states could not authorize over age give them a license to do so. The state of 16 to drive and accomplishment to the law would stand as an obstacle everyone objectives Congress (keeping purposes and full under the road) preempted. age Or, of 21 offthe and would be example, prohibited if federal law all sale to use a different licensing possession alcohol, the sale of a state law authorizing its use stand as an alcohol and would obstacle Congress’s purposes. accomplishment of the full 475.306(1) is no different. To the extent that ORS holding persons licenses to authorizes medical engage explic- that the Controlled Substances Act conduct itly prohibits, poses the to the full accom- it same obstacle plishment Congress’s purposes (preventing mari- all use of uses). juana, including *21 dissent, however, reasons that one state case support pre- its view of obstacle and four federal cases Rodriguez, emption. 317 Or 854 P2d It reads State v. (1993), support providing direct for its See 348 view. (Walters, dissenting). Rodriguez, J., In federal Or at 197 (INS) agents Immigration and Naturalization Service pursuant to a federal administrative war- obtained evidence not under the rant that was valid under federal law but question sup- Constitution, and the was whether pressing pursuant that warrant in a evidence obtained accomplish- proceeding state criminal was an obstacle to objectives purposes immi- ment of the full of the federal gration Suppressing This court held that it was not. evi- laws. proceeding completely dence in the state criminal ability carry separate unrelated to the INS’s out its mis- enforcing immigration the federal laws in a federal sion of proceeding. This court did not hold in administrative Rodriguez, appears conclude, that state law as the dissent accomplishment purposes the full ofthe will be obstacle to of the federal if state law interferes with the federal government’s ability to enforce its laws. United
The dissent also relies on four
States
Supreme
proposition
may
Court cases “for the
states
imposed by
impose
standards of conduct different from those
creating
federal law without
an obstacle to the federal law.”
(Walters,
dissenting).
follows,
J.,
was differently, pose requiring warnings place. Put in the first Congress’s purpose the state law was not an obstacle to permit Congress continue because intended to states to enforcing complementary tort remedies. opinion &
The Court’s in Florida Lime Avocado Growers, 132, L Paul, Inc. v. 373 US 83 S Ct 10 Ed 2d (1963), relies, 248 on the dissent also is to the same which case, that a federal mar- effect. the Court determined keting picking, process- setting minimum order standards for ing, congressional transporting did not reflect a avocados prevent enacting governing intent to laws “the states distribution and retail sale of those commodities.” 373 US at explained, “[congressional regulation 145. As the Court at ipso not, one end of the stream of commerce does all state oust facto, regulation The at other end.” Id. Court accord- ingly concluded that there was “no conflict irreconcilable regulation require[d] [that] with the federal a conclusion that [the displaced.” law] state Id. at 146.19The Court’s rea- soning implies that, when, case, as in this there is an irrec- oncilable conflict “requires state and law, between federal that conflict [the law] [i]s displaced.” conclusion state See id. Wyeth
In both Florida Lime & Avocado and
and the
interpreted
cites,
other two cases the dissent
the Court
applicable
permit complementary
sup-
federal statute plementary state law.20None of those cases considered state
Avocado,
ARC America
relies are
ing
gressional purposes
NRC’s exclusive
See proposition that the conflict between state and federal law in that case was unmis
order did not
Court
on that
As the dissent also advances what ground position. The reasons an alternative for its dissent be 475.306(1) affirmatively the use ORS does not authorize that marijuana; part medical it views that subsection instead as of of a marijuana larger exemption of medical use from state reasoning square criminal laws. The dissent’s is difficult to 475.306(1). provides with the text of ORS That subsection person holding registry “may that a identification card a engage” marijuana. limited in the use of medical Those are exemption. Beyond authorization, that, words of not if ORS 475.306(1) merely part larger exemption, were of a then no provision of state law would authorize the use of medical marijuana. marijuana true, If that were medical use would “illegal not come within one of the exclusions from the use of drugs,” phrase 659A.122, as that is defined ORS and the protections apply employee. of ORS 659A.112 would not to (so providing).21 See ORS 659A.124 through Another runs the dissent. It reasons thread authorizing marijuana practical that, matter, medical as exempting criminal lia use is no different from that use from bility. marijuana exempting It concludes if medical use liability accomplish from criminal is not an obstacle to the purposes ment of the of the Controlled Substances Act and is remedies, they might take, that state law in whatever form were available to those incidents”). injured in nuclear 475.306(1) integral suggestion There is a in the dissent that ORS is to the goal exempting marijuana liability medical use from state criminal and cannot act, Act. That be severed from the remainder of however, clause, express severability apparent why the contains an and it is not provisions exempting marijuana liability medical use from state criminal cannot marijuana given [the full effect authorization to use medical found in ‘be without 475.306(1)].” severing (providing ORS See Or Laws ch the terms for § invalid). any part of the act held authorizing preempted, then neither is a state law
thus not marijuana difficulty the dissent’s rea use. The medical exempting soning presumes premise. med It that a law is its pre liability is it is not ical use from valid because Attorney opinion explained, empted. General’s As the authority compel Congress a state to however, lacks the explicitly conduct, matter it directs a criminalize no how affirmatively When, however, do so. a state author state to authority preempt conduct, has the izes reasoning distinguish and did so here. The dissent’s fails principles. analytically separate those two constitutional Congress’s policy sum, whatever the wisdom of drug, categorize I choice to Supremacy as a Schedule requires respect Clause that we that choice when, case, in this state law stands as an obstacle to the purposes Doing accomplishment of the full ofthe federal law. is Without an so means not enforceable. authorizing employee’s enforceable state law use medical marijuana, excluding basis use 122(2) phrase “illegal drugs” from the in ORS 659A. not available. *24 possible noted, a
As
second
exclusion from the defi
“illegal
drugs” exists,
nition of
use of
which we also address.
“illegal
drugs”
The definition of
use of
also excludes from that
phrase
drug
supervision
“the use
a
taken
under
of a
122(2).
professional.”22
licensed health care
ORS 659A.
On
employee’s physician signed
issue,
above,
that
as noted
a
employee
diagnosed
statement that
had been
with a debili
tating
marijuana may mitigate
symptoms
condition, physician’s
condition,
or effects ofthat
but that the
statement
prescription
marijuana.
was not a
to use
That statement was
permit
sufficient under the
Act to
applied,
part
whether
The commissioner did not consider
this exclusion
Appeals
marijuana
because the Court of
had stated in Washburn that the use of
unlawful,”
purposes
parties
was “not
which the
and the commissioner con
employer’s
Although
cluded was sufficient to answer
reliance on ORS 659A.124.
we
permit
could remand this case to the commissioner to
him to address whether this
applies,
application
solely
statutory
exclusion
its
in this case turns
on an issue of
interpretation, an issue on which we owe the commissioner no deference. In these
circumstances,
unnecessarily prolong
we see no need to remand
resolution
of this case.
registry
then
card, which
employee
identification
obtain
his condition.
permitted
to treat
him to use
employee
physician
use mari
Employee’s
recommended
daily by
However, with
juana
inhalation.
to seven times
five
ability
physician
employee’s
to con
prescription,
had no
out a
employee
used or
the amount of
trol either
employee
to dis
frequency
if
chose
it,
he used
which
the
regard
physician’s recommendation.
his
employee
posed
question
used
is
thus
whether
pro-
supervision
care
a licensed health
“under
initially
question
on
turns
to that
fessional.” The answer
As
person
that exclusion.
within
must show come
what a
met to
explained
must be
that two criteria
below, we conclude
phrase
matter,
initial
As an
come within the exclusion.
profes-
supervision”
care
a licensed health
“taken under
monitoring
professional
implies
health care
that the
sional
or
overseeing
patient’s
otherwise be
use ofwhat would
Dictionary
drug.
illegal
New Int’l
See
Third
Webster’s
2002) (defining supervise
(unabridged
“coordinate,
ed
continuously
inspect
the accom-
and at first hand
direct, and
(holding
task);
plishment
physician
that a
Moore,
also refers to a use authorized (defining at 1598 “other” Act. See Webster’s Substances more) left”). (as “being the one of two or 188 122(2) imply
Not
does the text of ORS 659A.
supervision
that the use of controlled substances taken under
professional
of a licensed health care
refers to
uses
authorizes,
Controlled Substances Act
but the context leads
to the same
Czerniak,
conclusion. See Stevens v.
Or 392,
(2004) (explaining
401,
Another contextual clue
in the same direc-
122(2)
drug
tion. The exclusion in ORS 659A.
for the use of a
supervision
profes-
taken under
of a licensed health care
virtually
sional is
identical to an
exclusion the definition of
illegal
drugs
found in the ADA. See 42 USC
12111(6)(A) (excluding
§
drug
“the use of a
taken under
supervision by
professional,
a licensed health care
or other
Act”).
uses authorized
the Controlled Substances
The fed-
contemplates
eral exclusion
medical and research uses that
the Controlled Substances Act authorizes, and there is no
adopting
reason to think
the same exclusion, the
Oregon legislature
had
different intent
in mind. Cf.
(looking
counterpart
Stevens,
exclusion
(1)
supervision
professional:
the
of a licensed health care
health
Substances Act must authorize a licensed
Controlled
care
professional
prescribe
to
or administer the controlled
(2)
professional
and
the health care
must monitor
substance
supervise
patient’s
use of the controlled substance. In
or
case,
this
need not decide whether the evidence was suf-
we
employee’s
prove
i.e.,
ficient to
physician
the second
whether
criterion —
employee’s
use of mari-
monitored
oversaw
juana.
were,
Even if it
the Controlled Substances Act did not
(or
employee’s physician
authorize
authorize
employee
to administer
use) marijuana
purposes.
noted,
to
for medical
As
may
physicians
Act,
not
under the Controlled Substances
prescribe
pur-
I
Schedule
controlled substances for medical
may
poses.
physician
most,
At
administer those substances
Drug
part
preapproved
of a Food and
Administration
project.23Because there is no claim in this case that
research
physician
participating
pro-
employee and
were
in such a
his
ject,
marijuana
super-
employee’s
not taken under
use
was
professional,
phrase
of a licensed health care
as that
is
vision
659A.122(2).
used in ORS
employee
Because
did not take
under
supervision
professional
of a licensed health care
to
in ORS
because
authorization
unenforceable,
use
found
employee
is
it followsthat
cur-
rently engaged
illegal
drugs and,
in the
use of
as the commis-
employer discharged employee
found,
sioner
for that reason.
protections
659A.124,
Under the terms of ORS
“the
apply”
employee.
659A.112 do not
The commissioner’s
premise
rests, however,
final order on reconsideration
on the
(2006),
Oregon,
v.
546 US
126 S Ct
Given the number of the issues discussed this opinion, grounds briefly. we summarize the for our decision employer preserved challenge First, its as a ofthe result Act, Controlled Substances an the use of medical illegal drugs meaning within the of ORS 659A.124. *27 potentially applicable Second, two exclusions from the phrase “illegal drugs” drugs use of use of authorized —the drugs supervision state and the use of taken under the of professional apply a licensed health care Third, not here. —do regarding potentially applicable exclusion, the first to the extent that ORS authorizes the use of medical marijuana, preempts the Controlled Substances Act holding regard subsection. We note that our in this is limited 475.306(1); to ORS we do not hold that the Controlled preempts provisions Oregon Substances Act Medical Marijuana exempt possession, Act the manufacture, or distribution of medical from state criminal liabil- ity. employee currently engaged Fourth, because in the illegal drugs employer discharged him for that rea- protections including obliga- son, the 659A.112, the engage meaningful tion to in a discussion, interactive do not apply. ruling ORS 659A.124. It follows that BOLI erred in employer violated ORS 659A.112. Appeals
The decision of the Court of and the revised order on reconsideration of the Commissioner of the Bureau of Labor and Industries are reversed. dissenting.
WALTERS, J., Oregon Marijuana the Neither Medical Act nor provision permits requires thereof the violation of the precludes Controlled Substances Act or affects or its enforce- Oregon any provision Therefore, ment. neither the act nor thereof stands as an obstacle to the federal act. Because the doing wrongly so, it majority because, in otherwise, and holds power laws, I wrongly make its own to this state’s limits respectfully dissent. system a establishes Constitution
The United States
governments
sovereignty
federal
state and
in which
dual
people.
authority
Printz v.
over
concurrent
exercise
2365,
L Ed 2d
920, 117 S Ct
898,
States, 521 US
United
(1997).
supreme
government
its own
within
Each
914
sphere.
enacting
the federal Controlled
In
at 920-21.
Id.
marijuana,
prohibits
all use
Act, which
Substances
Congress
authority
pursuant
under
to its
acted
5, 125 S Ct
Raich,
1,
545 US
v.
Clause. Gonzales
Commerce
(2005).
enacting
In
L
2d 1
2195, 162 Ed
permits
of med-
the circumscribed use
Act, which
power
marijuana, Oregon
pursuant to its historic
acted
ical
safety,
protect
health,
to
criminal law and
to define state
589, 603,
Roe,
v.
429 US
its citizens. Whalen
and welfare of
(1977); Robinson v.
869,
did not have the represented policy in that federal choices law, criminal power to commandeer does not have act. state’s by compelling legislative processes it enact or States, 144, 505 US York v. United enforce federal laws. New (1992). “[E]ven L 2d 120 where 112 S Ct 120 Ed *28 pass authority Congress to under the Constitution has the power prohibiting requiring acts, the certain it lacks or laws prohibit compel require directly those to to the States acts.” Id. at 166. authority enact the Controlled it had to
Because power Congress the did, however, have Act, Substances expressly preempt with the that conflict state laws Supreme Act. A cornerstone Substances Controlled Court’s emption pre- “[i]n analysis Supremacy is that all Clause Congress particularly in those in which cases, and traditionally legislated States have in a field which the has assumption “start[s] occupied,” that the the Court superseded police powers were not be of the States historic by the Federal Act unless that was the clear and manifest purpose Congress.” Wyeth of v. Levine, _US _, __, (2009) (internal ellip 1187, 1194-95, 173 129 S Ct L Ed 2d 51 omitted). quotation sis and marks The Court relies on that presumption “respect independent out States as (internal sovereigns system.” in our federal Id. at 1195 n 3 omitted). quotation marks majority recognizes,
As
the Controlled
express preemption pro-
Act
Substances
does not include an
saving
vision.
Congress enacted the federal Controlled Substances
majority explains,
“conquer drug
Act, as the
abuse” and
“control”traffic in controlled substances.
including the state Uniform Controlled Substances Act *29 193 475.980). That act and ORS 475.840 to 475.005 to 475.285 punishes, law, the use of all and as state criminal controls substances government classifies as Sched- that the federal marijuana. drugs, including 475.840; ORS 475.856 ule I ORS - Oregon Oregon enacted the Medical Mari- 475.864. also marijuana juana exempts users Act. That act certain medical drug including laws, from the state from the state criminal Oregon Act. The Medical Uniform Controlled Substances Marijuana Oregonians permit the fed- Act does not violate government eral Controlled Substances Act or bar the federal continuing from to enforce the federal Controlled Substances against Oregonians. Oregon Attorney Act The General purpose described the and reach of the Medical Marijuana ruling: Act in a letter protects marijuana comply
“The Act users who requirements prosecution with its from state criminal production, possession, delivery or of a controlled sub- 475.309(9) See, 475.306(2), e.g., stance. ORS and 475.319. However, protects marijuana plants the Act neither from nor prosecution gov- seizure individuals if federal ernment against patients caregiv- chooses to take action or ers under the [Controlled Act]. federal Substances The Act explicit scope: in its in ‘Except provided ORS 475.316 475.342, person engaged assisting in or in the medi- cal compliance [in terms of the excepted Act] is pos- from the criminal laws the state for of session, delivery production marijuana, or aiding abetting possession, delivery another in the or production of posses- other criminal offense in which sion, delivery or production is an element * * 475.309(1).” ORS Letter of 17, 2005, Allan, Advice dated June to Susan M. Department Director, Public Health Services, of Human (first added).1 emphasis original; emphases later Oregon Attorney ruling General also concluded in that letter Attorney opinion, pro Consistent with the letter General’s entirety vides that ORS 475.300 to 475.346—the of the changes existing Oregon Act—is “intended to make those laws that are nec essary protect patients penalties!.]” and their doctors from criminal and civil added.) (Emphasis in Raich —that Court Supreme the decision prohibitions to enact the blanket authority had validity Act —had no effect on the
the Controlled Substances statute: Oregon’s *30 regulating that state laws medical “Raich does not hold require repeal nor it states to marijuana are invalid does marijuana Additionally, laws. the case existing medical * * * prac- The oblige does not states to enforce federal laws. Oregon tical in is to affirm what we have effect Raich adoption understood to be the law since the of the Act.”2 original). Id. in (emphasis the majority Oregon
The
seems
accept
Marijuana
government
Medical
Act does not bar the federal
Act. The
enforcing
majority
from
the Controlled Substances
acknowledges that “state law does not
the federal
prevent
from
its
laws
med-
government
enforcing
against
ical marijuana users in
if the federal
Oregon
government
chooses to do so.”
hut establish affirmative defense to such greater medically necessary mitigate of the evidence that the symptoms amount is the person’s debilitating or effects of the medical condition.” 475.306(2) added). (2003), by (emphasis ORS amended Or Laws ch 2§ Thus, Oregon Marijuana one of the subsections of the Medical Act that the Attorney very General cited used words of authorization similar to those used in 475.306(1). ORS Throughout opinion, Attorney validity General discussed the continued Oregon Marijuana any way of the Medical Act whole as a and did not differenti- provisions ate between of the act that authorize medical use and those fact, exemption prosecution. Attorney spe- that create an from state General cifically opined registry that the entitled to continue to state is issue identification definition, identify persons cards—cards are documents that “authorized 475.302(10) added). engage marijuana.” (emphasis in the medical use of ORS Marijuana exempt persons Act that from state criminal lia- bility pose do not an to the Controlled Substances obstacle majority’s However, view, Act.3 in the one subsection 475.306(1), Marijuana presents Act, Medical solely to the Act and does so obstacle Controlled Substances it at because includes words of authorization. Id. 178. explain detail,
As I in more I believe that the will majority reaching First, is incorrect in that conclusion. words of authorization used in ORS and other subsections of the Act serve operable exceptions exemptions to make to and prosecution provided state in the remainder of the act. The grant words authorization used in those subsections do not already excep- act authorization to that is not inherent exemptions, they permit tions or nor do the violation of fed- imposes Second, eral law. in instances in which state law standards of conduct that are different than the standards of imposed by law, conduct federal can but both laws be Supreme enforced, the Court has held the not state laws to be implied laws, obstacles to the federal Congressional nor discerned an *31 preempt intent to the state from the dif- laws policy by government. ferent choices made Thus, federal majority finding is incorrect in the standard of policy represented by conduct and choice the Controlled prohibits Substances Act duct and a different state standard of con- policy Marijuana choice. Both the Medical Act and the Controlled enforced, Substances Act can be interpret this state court should not the federal act to impliedly preempt the state act.
The Act contains a num- ber of subsections that use words ofauthorization. Those sub- sections are interwoven with the subsections of the act that except exempt medical users from criminal liability. majority instance, 475.309, For ORS which the cites provision excepts persons aas who use medical mari- juana liability, provides criminal from state 179-80, 348 Or at person engaged assisting that a marijuana in or in the medical use of excepted
“is
from the criminal laws of the state” if
majority expressly
question open,
leaves that
however.
card,” are satisfied. ORS “registry identification card” as follows: defines department per- “a documentissued the that identifiesa engage in the medical use of son authorized to person’sdesignatedprimary caregiver, any.” and the if added.) (Emphasis 475.306(1),
Consider also ORS the section of the act majority offending. that the finds That references subsection exception registry 475.309, section, both ORS and the necessary exception. identification card to that ORS 475.306(1) provides: person possesses registry “A who a card identification pursuant may engagein,
issued ignated primary caregiver to ORS475.309 and a des- may person in, ofsuch assist marijuana only justified mitigate medical use of as symptoms person’s debilitating or effects of the condition.”4 added.) (Emphasis Reading provisions together, those three
it is clear that ORS use ofmedical serves as a limitation on the registry that the identification card together permit. 475.306(1), and ORS 475.309 Under ORS a person possesses registry who identification card issued pursuant may engage to ORS 475.309 in the use the card permits “only justified mitigate symptoms as or effects person’s debilitating (Emphasis of the added.) medical condition.” 475.319,
ORS another section of the act that the majority ity, creating exemption cites from criminal liabil- depends permission operation.
also on words of for its Or at 179-80. ORS 475.319 creates an affirmative defense to charge possession marijuana, per- a criminal but possess marijuana permitted sons who “in amounts under added.) 475.320(l)(a) (Emphasis pro- ORS 475.320.” *32 * * * registry may possess vides: “A cardholder identification 475.306(1) majority recognizes The that it is essential to read ORS and ORS 475.302(10) together to find an affirmative authorization to use for However, purposes. majority explain why 171. medicinal 348 Or at does not it 475.306(1) 475.302(10) preempted. finds and not ORS and 24 ounces of usable mature plants to six up added.) marijuana.” (Emphasis used in ORS
The words of authorization authorization that are used no different from the words of are act and that are to effectu- necessary in other sections of the and ORS 475.319 and the exceptions ate ORS 475.309 that create. Those liability they from criminal exemptions not that would grant permission words of authorization do if were eliminated or replaced not exist those words or exclusion. Even if it did not use words of words of exception Medical Act would Oregon Marijuana per- permission, mit, law, the conduct that it does not purposes Oregon Furthermore, sections that punish. statutory provide that citizens for state law in the con- may, purposes, engage duct the state not have no effect on the punish will Controlled Act that than the effect of greater Substances the sections that declare that the state will not punish conduct. neither Act
Because
nor
subsection thereof
to violate the
gives permission
enforcement,
Controlled Substances Act or affects its
pose
act does not
an obstacle to the federal act neces-
In State
v.
sitating
finding
implied preemption.
Rodriguez,
27,
(1993),
317 Or
“Becausethis court’s of context, interfere the federal this cannot and will not government immigration Supremacy matters, the bearing ‘pre- no onthis case and this courtis not Clausehas empted’ arrest.” applying I, Article section to defendant’s Marijuana Similarly, Oregon Id. the Medical Act “cannot and government’s will not interfere with” the federal enforcement Act and not offend the of the Controlled Substances does Supremacy Clause. following Rodriguez, majority
Instead of
the
relies
Supreme
proposi-
on two United States
Court cases for the
permits
prohibits
tion that state
impliedly preempted.
federal
what
law
majority
In the first of the
on
two cases which the
relies,
Nelson,
Barnett Bank v.
25, 116
1103, 134
517 US
S Ct
(1996),
explicitly
L Ed 2d 237
a federal statute
granted
power
national banks the unlimited
to sell insurance in small
impaired
A
towns.
state statute forbade and
the exercise of
power,
preempted.
and the court held that it was
Agricultural
Michigan
Bd.,
v.
& Freezers
Canners
(1984),
2d 399
the second
2518, 81 L Ed
461, 104 S Ct
467 US
majority relies, concerned a conflict
which the
case on
Agricultural
Act,
Fair Practices
which
the federal
between
goods
agricultural
producers
rights
protects
products
bring
independent
to market on
their
remain
products
being required
those
to sell
without
their own
through
Michigan
Id. at 473. As
association, and a
statute.
explained
Medical Soc. v.
in Massachusetts
the court
(1st Cir),
den,
S Ct Ed 2d 86 implied preemp prong” “actual conflict” of its “obstacle analysis, Section 4 of the federal the conflict between tion Clayton purchasers Act, direct which authorizes monopoly overcharges, statute, recover a state which recovery expressly permits purchasers. indirect The Supreme directly if Court held even the state statute goals law, conflicted with the of the federal as the Ninth preempted. held, Circuit had Supreme statute state was not required pur- Court reasoned that are states not goals enacting sue federal when their own laws: thing congressionalpolicies “It is one tified in Illinois Brick and Hanover to considerthe iden- what defining Shoe recovery authorizes; sort of federal antitrust law it is some- thing altogether inappropriate, different,and in our view defining considerthem as what federal law allowsStates to dounder their ownantitrust law.” at Id. 103. Supreme
Other Court cases also illustrate the imply preemption, Court’s refusal to under the “obstacle” prong implied preemption analysis, of its where state and contrary pursue contrary federal statutes set standards or objectives. Corp., In Silkwood v. Kerr-McGee 464 US (1984), 246, 104 S Ct L78 Ed 2d 443 a case that the court authority, jury in ARC America cited as had awarded the plaintiff judgment punitive damages million in $10 against power company. the defendant, a nuclear The defen dant asserted that a conflict existed between the state law permitted judgment regulating that nuclear and a federal
power plants, with which the defendant had com *35 plied. Despite ruling Regulatory an earlier that the Nuclear authority regulate safety Commission had exclusive 5 power plants, though accepted nuclear and even the Court safety reg that “there is tension between conclusion that ulation is the exclusive concern of the federal law and the may damages conclusion that a State nevertheless award liability,” on based its own 256, law id. at the Court refused to invalidate the state law.
In Florida Growers, Lime & Paul, Avocado Inc. v. (1963), 373 US 83 S Ct L 1210, 10 Ed 2d 248 a federal 5 Energy Comm’n, 190, 211-13, Gas & Elec. v. Resources 461 US 103 Pacific (1983). S Ct L75 Ed 2d 752 marketing statute authorized the of Florida avocados on the weight, picking size, date; California, however, basis of regulated marketing of avocados sold in the state on the differing basis of oil standards, content. As a result of the percent about six ofFlorida avocadosthat were deemed mature rejected under markets. The regulating federal standards were from California plaintiffs argued that the federal standard for preempted Florida avocados California’s conflict- ing regulation. argued: As the dissent “Theconflictbetweenfederal and state lawis unmistakable Secretary
here. The
mature. The state law
asserts certain Florida avocadosare
rejects
them as immature. And the
importance
conflictis overa matter ofcentral
to the federal
regulatory
marketing
scheme.The elaborate
order is focused
schemeofthe
upon
problem moving
mature avoca-
maturity regulations
dosinto interstate commerce.The
are
peripheral aspects
not
ofthe federal scheme.”
(White,
dissenting).
majority,
“Thetest ofwhether both federal and state operate, regulation give way, or the state must without is whether regulations impairing both eral can be the fed- enforced superintendence they field, not whether are objectives.” aimed at similar or different added). (emphasis Id. at 142 Wyeth
The Court’s most recent issue, case on the v. (2009), Levine, _US _, 129 S Ct 1187, 174L Ed 2d 51 presented case, accord. In that the court with a conflict between state and federal the dissent characterized Wyeth Phenergan’s as follows: “The FDA told label ren through ders its use ‘safe.’But the State of Vermont, its tort ”6 (Alito, dissenting). law said: Id., ‘Notso.’ J., S Ct at 1231 majority upheld Although Nevertheless, the the state law. adopted regulation declaring The FDA had also that “certain state law actions, involving claims, such statutorily- as those failure-to-warn ‘threaten FDA’s prescribed expert agency responsible evaluating regu role as the Federal ” lating drugs.’ Id. at 1200. *36 contradictory imposed standards, the state law
the laws two preempted. not that I reviewed demonstrate The cases that have imply- requires Supreme a more as basis the ing Court preempt congressional state law than a intent to a a policy Congressional purpose that a is at odds with the that impose permitted The Court has state laws state selects. by federal laws than those set of conduct different standards preclude the enforcement of the laws to stand unless the federal their impair, rights state demonstrated effect on laws or have some other operation. forbid, The Court has found state laws federally granted powers prevent or exercise of
or the preempted. to be majority contend, not in accordance with
The does Oregon cases, that ORS those precludes Act as a whole enforcement demonstrated Substances Act or has other Controlled “accomplishment and execution.” The obsta- effect on its majority act that identifies are cles to the federal differing respect Oregon’s policy choice and the lack of that it signifies. at 348 Or 185. example way Supremacy an it believes the
As
majority posits
operate,
that, if
were
Clause to
age
pass
prohibiting persons
of 21 from
to
a law
under
driving,
authorizing persons
age
over the
of 16 to
a state law
giving
preempted.7
them a license to do so would
drive and
be
majority
¿/Congress
at
would
correct
had
348 Or
182.
be
¿/Congress expressly pre-
authority to make such a law and
allowing
age
empted
persons under the
of 21 to
state laws
occupy
However,
an intent
the field.
drive or indicated
Congressional
implied pre-
intent,
without such statement of
sovereign
emption
necessarily
state,
does not
follow. As a
Oregon
authority
license its drivers and to choose its
has
age
Oregon
years
requirements. If
set at 16
the mini-
own
Oregon
age
it
drivers,
mum
for its
then the
driver licenses
give 16-year-olds only
permission
state
to drive.
issued would
majority opinion,
providing
would not
As I read the
a state law
permitting
per
punish
ages
opposed
of 16 and
those
drivers between
challenge.
drive,
Supremacy
sons to
would withstand a
Clause
preempted,
it
but neither would
The
protect
law would not be
liability.
prosecution
16-year-olds
from federal
Oregon legislature considering
result,
As
practical
decide, as a
mat
to enact such a law could
whether
*37
grant
in the interest of its citizens to
ter, that it would not be
Suppose,
prosecution.
that could result in federal
licenses
passed the federal law that the
however, that
had
enforcing
majority posits,
that federal officerswere not
it.
but
government
suppose
Or
further
the federal
had
policy
announced a federal
decision not to enforce the federal
against
law
unambiguous compliance
“individuals whose actions are
clear and
existing
permit
state laws”
ting
Oregon
laboratory
minors to drive. Could
not serve as a
allowing
carefully
minors to drive on its roads under
circum
driving
permit
acquire
them
scribed conditions to
to
skills
giving Congress important
might
and
information that
assist
determining
policy
changed?
it in
its
should
whether
be
Is not
single courageous
one of federalism’s chief
that “a
virtues
may,
laboratory;
try
choose,
State
if its citizens
as a
serve
and
experiments
novel social and economic
without risk to the
country”?
Liebmann,
rest of the
See New State Ice Co. v.
285
(1932) (Brandeis,
262, 311,
371,
J.,
US
52 S Ct
As legislature pass power require no has give policy implement effect to federal state laws to sovereign may policy prohibit a choices. One and ent make choice to sovereign may punish conduct; the other make a differ- policy permit, pur- to do and instead to choice not so only, poses of state law other circumscribed conduct. Absent express preemption, particular policy by a choice the federal implied pre- government alone intent to does not establish contrary just empt state law. A different choice a state is contrary that —different. A state’s choice does not indicate a respect; at lack of it indicates federalism work. majority’s consequence The decision that the
Controlled Act invalidates ORS is that Substance petitioner disqualified 659A.124, from the benefits of ORS imposes requirement which accommodation. reasonable majority leg- states that it does not decide “whether the Oregon’s disability islature, if it to do chose so worded differently, require employers reasonably law modate could accom- *38 qualified employees disabled
otherwise
who use med-
marijuana
ical
to treat their disabilities.”
Although changes right such could secure the persons reasonable accommodation for disabled who use compliance medical law, changes questions major- would not eliminate the that the ity’s analysis validity provisions raises about of other Act that use words of author- Oregon’slegislative authority. ization or about the reach of If majority simply represents decision a formalistic view of Supremacy permits Oregon Clause that to make its own (and punish thereby permit) choices about what conduct to long phrases carefully, perhaps my as it its choices concern imagine is overstated. But as I cannot would phrasing, be concerned with rather effect, than the only majority wrong, law, state I not think that the I fear wrongly legislative authority that it limits the ofthis state. If authority does, it it not limits the state’s to make its own authority laws, it limits the state’s enact other laws that set standards of conduct different than government. just the standards set the federal Consider currently Oregon’s one statute on the Death with books— Dignity Act. Oregon’s Dignity affirmatively Death with Act physicians authorizes to use controlled substances to assist *39 Oregon, suicide.10 Gonzales v. 546 US 126 S Ct 127.815(1)(L)(A) physicians dispense ORS authorizes medications for the purpose ending patient’s dignified a life in a humane and manner when that patient request has a requirements terminal illness and has satisfied the written provides. terminally patient the Act authorizes a ill to “make request a purpose ending written for medication for the his or her life in a dignified humane [the Act].” and manner in accordance with the considered Court (2006), Supreme L Ed 2d 748 that provided Rule Interpretive of a federal
validity legiti- is not a assist suicide controlled substances “using prescribing dispensing and that practice mate medical [Controlled under unlawful this purpose them for Court decided Supreme at 249. The Id. Act].” Substances decide whether and did not Rule was invalid the Interpretive if the federal act. But rule preempted the federal to the a rule a statute or valid to adopt were government because this court hold effect, would same to take permission Act grants physicians with Dignity Death statute is pre- the state federal law prohibits, actions that so, the court would invalidate effect? If and of no empted members of that at least three analysis using state law faulty: to be recognized have Court Supreme pre-empt purport does not [Interpretive Rule] “[T]he state law in by pre-emption— conflict any way, not even misimpression that some under the unless the Court is assisted suicide.” require States Roberts, J. (Scalia, J., C. joined by at 290 Gonzales, 546 US in original). Thomas, J., dissenting) (emphasis dual sov- in our why, system I understand do not not, formation must in federal fly only ereigns, Oregon ORS 186.040. wings.” her own motto “with Oregon’s provides, we, as state in a decision which Therefore, I cannot join state and preclude of our own enjoin policies court judges, decisions its own making independent legislature our I dissent. respect, to criminalize. With what conduct about J., in this Durham, joins opinion.