Legal Analysis Re Hearing on Bill 21-23 (Marijuana) 2-4-15

8/9/2019 Legal Analysis Re Hearing on Bill 21-23 (Marijuana) 2-4-15

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GOVERNMENT

OF

THEDISTRICT

OF COLUMBIA

OFFICEOFTHEATTORNEYGENERAL

* * *

PRIVILEGEDANDCONFIDENTIAL

ATTORNEY

- CLIENT

COMMUNICATION

ATTORNEY

WORKPRODUCT

MEMORANDUM

TO: TheHonorableVincentOrange

Chairman,CommitteeonBusinessConsumerandRegulatoryAffairs

CC:

The

HonorableJackEvans

Chairman,CommitteeonFinanceandRevenue

CC: TheHonorableKenyanMcDuffie

Chairman,CommitteeontheJudiciary

CC: The

Honorable

PhilMendelson

Chairman,CounciloftheDistrictof Columbia

. .

ROM:

KarlA. Racine

-

AttorneyGeneral

I

J ? J ;

DATE:

February4

2015

SUBJECT: Legalityof HearingsonBill21-23,the

Marijuana

Legalizationand

RegulationActof 2015

YourstaffrequestedtheOfficeofAttorneyGeneral'sanalysisonwhetheritwouldbelawfulfor

you,Councilstaff,orDistrictgovernmentemployeestoparticipateintheFebruary

9

2015

hearingonBill21-23,the"MarijuanaLegalizationandRegulationActof2015"("bill"),ortake

anyotherformalactionastothebillpursuanttosection809

of

theFinancialServicesand

GeneralGovernmentAppropriationsAct,2015("2015AppropriationsAct"),approved

December16 2014,Pub.

L.

113-235. Forthereasonsdiscussedbelow,Ireluctantlyconclude

thatitwouldbeunlawfultodosonotwithstandingmyfullsupport

of

thesentimentsbehindyour

desiretoconductthishearing.

441 4th Street,N.W.,Suite1100S,Washington,D.C.20001


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On January 6, 2015, Councilmembers Grosso, Evans, Orange, and

Nadeau

introduced the bill

which would, among other things, establish a comprehensive system for licensing and regulating

the cultivation, manufacture, and legal retail sale of marijuana and marijuana products in the

District, including the collection

of

licensing fees, the imposition

of

taxes, and the designation

of

the Alcoholic Beverage Regulation Administrat ion ( ABRA ) as the regulatory agency for this

program. The bill has

been

referred to the Committees on Business, Consumer, and Regulatory

Affairs, Finance and Revenue, Judiciary, and the Committee

of

the Whole, and it has been

scheduled for a hearing

on

February 9, 2015.

As

I noted earlier, I strongly support the will of the District residents as expressed by the vote on

Initiative 71, and I wholeheartedly support the criminal justice and civil rights-related sentiment

expressed

by

the Council in seeking enactment

of

this bill. Moreover, I am fully committed to

working with the

Mayor

and Council to explore every legal avenue to see Initiative 7 fully

implemented. And as I have publicly stated the Office

of

the Attorney General will defend

Initiative 7

if

it is challenged

in

court. Here, however, I must caution restraint, and I urge you

to reconsider this hearing--at least for now.

The issue here is not whether Initiative 71, which was, in our view, enacted before the 2015

Appropriations Act became effective, but, rather, whether the hearing

on

this bill--which was not

enacted by the time the rider took effect--would violate the rider. We believe it would.

Any such hearings, from

my

view, would violate federal civil and criminal code provisions.

Worse,

if

your hearing goes forward and FY15 funds are used in furtherance of this process,

District employees

who

participate could be held personally liable for violations

of

the federal

Anti-Deficiency Act, i.e.,

if

their activities are part of the legislative process associated with the

enactment of the bill. Accordingly, I urge the Council to avoid this outcome by either

1) delaying the hear ing until after the 2015 Appropriations Act is in effect, or 2) by having a

public roundtable

or

similar discussion that addresses the substance

of

the issues without

implicating the formal enactment process.

I Applicable Law

The Appropriations Act provides in Section 809(b) that [n]one

of

the [local] funds contained in

this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce

penalties associated with the possession, use, or distribution of any schedule I substance under

the Controlled Substances Act (21 U.S.C. 801 et seq.)

or

any tetrahydrocannabinols derivative

for recreational purposes. We have concluded that section 809(b) should not prevent the

District from using FY15 appropriated local funds to implement Initiative 71, which will legalize

the possession of small an10unts of marijuana, because this initiative had already been enacted

when the Appropriations Act became effective.} Section 809(b) directly and squarely prohibits,

however, the use

of

these funds and FY15 appropriated federal funds to enact any measure that

1 Implementation could begin at the end of the 30-day period of congressional review required by section 601(c)( l)

of

the District

of

Columbia Home Rule Act ( Home Rule Act ), approved December

24 1973 87

Stat. 813, Pub.

L

93-198, D.C. Official Code § 1-204.46 (2012 Repl.), provided that Congress does not enact a joint resolution

disapproving the initiative during that period. The estimated law date is February 26, 2015.

2

http:///reader/full/1-204.46http:///reader/full/1-204.46


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2

The Council adc pt


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V A U Jl fS case

4


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3

31 U.S.C. § 1341 states, in 1 ' \ o ' f ' 1 ~ l 1 n t

§ 1341. Limitations on

ext)en.dITlg

and V V J E > ' U l l l ,E > amounts

emlnlO vee o the United States Government or

o

the District

o

Columbia

gm/enun,ent may not-

make or authorize an eXl)endlture

VVJ.J5 'UVll

e;l ce:eolmg

an amount available in an

aPl)ropnatH)n or fund for the or obllganon;

involve either in a contract or .......... ,... .,-,,..,,,, for the r\ ; l ' . r tn,pnt

before an

am)ronriati()D is made unless authorized law.

P T n l n l n ' \ l P P o the District

o

'A t ' t ' f \ 1 r i lnc r

to such

Act."

; In 'A i l ' 'C1C is not even necessary because

5


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'TrIT> '''......

,,

were to

.... o r n

xr

to

to

t should be noted no one has ever been for the federal

An.tl-lJel1Cll:mcy Act does not make a violation of this criminal lawful nor could

it

insulate any individual if the federal g ~ t e n n m e n t chose to go forward in response to what was

as

an

intentional violation of the Act

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Legal Analysis Re Hearing on Bill 21-23 (Marijuana) 2-4-15

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