Heeding State AGs’ Perspectives On Draft Legislation May Pay Dividends – Cannabis & Hemp

In addition to enforcing laws after they are passed, state
attorneys general (AGs) often weigh in on draft legislation or
proposed ballot initiatives, providing valuable insight for
lawmakers and other stakeholders into the attorney general’s
interpretation of, and level of support for, such proposals. This
is particularly true in the area of cannabis regulation, where, in
an uncertain and developing area of the law, an attorney
general’s feedback on policy proposals – not to mention
citizens’ acceptance and implementation of same – can assist
the measure in succeeding either in the legislature or at the
ballot box.

Idaho AG Provides Feedback to Marijuana Activists on Draft
Ballot Initiative

Such was the case in Idaho, where marijuana activists with the
Idaho Citizen’s Coalition (Coalition) revised a proposed ballot
measure that would legalize adult-use marijuana after receiving
comments from the Attorney General’s Office. Per Idaho law, the Coalition filed an initial draft
of the ballot measure, called the Personal Adult Marijuana
Decriminalization Act (PAMDA) last month with the Idaho Secretary
of State. After filing the initiative, however, the Idaho AG
submitted a letter to the Secretary of State outlining potential
legal issues with PAMDA and suggesting changes to resolve those
issues. In Idaho, the AG may confer with a petitioner and recommend
revisions to a ballot measure “as may be deemed necessary and
appropriate.” The potential issues identified by the AG
included clarifying that “personal” use of marijuana -
i.e., the use of marijuana on private property – cannot occur in
public places such as on public transit and in state correctional
facilities. The AG also suggested that one provision, which states
that a person may not be considered to be operating a vehicle under
the influence of marijuana if the level of metabolites or
components of marijuana are insufficient to cause impairment, could
face a constitutional challenge for vagueness and should be
revised. The AG suggested that the provision be revised to reflect
that police cannot only use the presence of metabolites or
components of marijuana to determine whether someone is operating a
vehicle under the influence of marijuana. In response to the
AG’s feedback, the Coalition submitted a revised proposed
ballot measure to the Secretary of State earlier this month that
addressed some, but not all, of the AG’s suggestions. A recent
blog post by the Coalition seems to indicate
that they rejected certain revisions due to differences of opinion
between the Coalition and the AG on PAMDA’s impact on law
enforcement.

State AGs’ Views May Both Foretell and Impact Outcomes

When it comes to reviewing draft legislation or ballot measures,
state attorneys general, as the chief legal officers of their
states, often anticipate what industry and normal citizens cannot;
namely, the ways in which a proposal can encounter constitutional
challenge, create enforcement obstacles, or even conflict with
existing state laws and regulations. It is therefore important from
a practical perspective for drafters to keep the state attorney
general’s perspective in mind when submitting a proposal for
consideration at the ballot box or before a state legislature.
Moreover, even if policy proponents disregard the attorney
general’s feedback, they should remember that other members of
state government will pay heed – which can prove fatal to a
bill’s momentum. In Idaho it is too early to determine whether
PAMDA will pass, as the Coalition has until May 1, 2022, to collect
the necessary 65 thousand signatures from voters to get the measure
on the ballot. What is clear, however, is that monitoring the state
AG’s views on draft legislation and proposed ballot initiatives
is a good way to anticipate the success of such measures as they
progress through the lawmaking process.

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