One of the first things you learn in law school is the importance of making sure that any case you cite as legal precedent is still good law.  This process is called Shepardizing, because some guy named Shepard published the reference guides that allow you to determine whether the same court or a higher court had issued a later opinion questioning the validity of the earlier one.  Shepardizing once was a tedious process of checking sometimes dozens of volumes of books and pamphlets.  Today, however, it is  a one-click process on the leading legal publishers’ websites.

It appears, however, that the “professional attorneys” who prepared the Attorney General’s Opinion that has put the dispensary licensing process in limbo failed to Shepardize the Oregon Supreme Court case that was one of the two legal authorities that “compelled” their conclusion that the Arizona Medical Marijuana Act (AMMA) dispensary provisions were preempted by federal law.

Arizoneout analyzed the Oregon case in an August 10, 2012 post.  Almost a year later, the Oregon Supreme Court revisited the preemption issue in another case, Willis v. Winters.

The Willis case was filed by licensed medical marijuana users in Oregon who had been denied state concealed weapons permits by the sheriffs of two Oregon counties.  The applicants met all of the requirements of Oregon law, which required the sheriffs to issue the permits to qualified applicants.  The sheriffs denied the permits, however, claiming state law was preempted by the federal Gun Control Act of 1968, which prohibited the possession of firearms by unlawful users of controlled substances.  The sheriffs took the position that because the applicants were licensed medical marijuana users, they necessarily were illegal drug users under federal law.

The Oregon Supreme Court disagreed, finding that the sheriffs were without authority to deny the applicants the gun permits.  In doing so, the court limited the reach of its preemption analysis in the Emerald Steel case, one of the two main authorities on which the Arizona Attorney General’s Opinion is based.  The Oregon Court stated:  “Emerald Steel should not be construed as announcing a stand-alone rule that any state law that can be viewed as ‘affirmatively authorizing’ what federal law prohibits is preempted.”

The Oregon Supreme Court went on to conduct a detailed federal preemption analysis to determined that the Oregon concealed gun permit law was an obstacle to the purpose of the federal firearms statute.  Key to the Oregon court’s decision was the fact that nothing in the Oregon law prohibited federal officials from enforcing the federal law by arresting and prosecuting those who violated it, including licensed Oregon medical marijuana users.

The Oregon Supreme Court’s analysis in Willis, when applied to the provisions of the AMMA that set up the dispensary process, appear to point to a conclusion that those provisions also are not preempted.  Nothing in the AMMA prevents federal authorities from arresting and prosecuting dispensary operators.

As the Oregon court stated, “It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program.”

The Arizona Attorney General’s Opinion’s reliance on the Emerald Steel case and failure to address the subsequent Willis case is bad lawyering, pure and simple.