THE SENATE

S.C.R. NO.

62

TWENTY-SIXTH LEGISLATURE, 2012

 

STATE OF HAWAII

 

 

 

 

 

SENATE CONCURRENT

RESOLUTION

 

 

requesting the attorney general to file an injunction in the united states district court to enjoin enforcement of state and federaL laws prohibiting cannabis, AS A SCHEDULE I CONTROLLED SUBSTANCE, UNTIL IT CAN BE RECLASSIFIED, and requesting the governor to request the attorney general of the united states to recognize the right of hawaii to determine the APPROPRIATE ISSUANCE AND use of medical marijuana THAT IS BASED ON THE FACT THAT CANNABIS NO LONGER MEETS THE FEDERAL CRITERIA FOR A SCHEDULE I CONTROLLED SUBSTANCE.

 

 


WHEREAS, Act 228, Session Laws of Hawaii 2000, enacted the medical use of marijuana law; and

 

WHEREAS, marijuana is classified as a schedule I controlled substance under section 329-14(d)(20) and (29), Hawaii Revised Statutes, which follows federal law; and

 

WHEREAS, the criteria applicable to classification as a schedule I substance are:

 

(1) The drug or other substance has a high potential for abuse;

 

(2) The drug or other substance has no currently accepted medical use in treatment in the United States; and

 

(3) There is a lack of accepted safety for use of the drug or other substance under medical supervision; and

 

WHEREAS, Hawaii's medical marijuana law, codified in part IX of chapter 329, Hawaii Revised Statutes, is an explicit recognition that marijuana has a legitimate medical use, which is not similarly recognized under federal controlled substance laws; and

 

WHEREAS, in Gonzales v. Oregon (546 U.S. 243, 2006), the United States Supreme Court held in a case involving a schedule II substance that the Controlled Substances Act does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure; and

 

WHEREAS, the Court stated in pertinent part:

 

The dispute here involves controlled substances listed in Schedule II, which are generally available only by written prescription, 21 U.S.C. 829(a). A 1971 regulation promulgated by the Attorney General requires that such prescriptions be used "for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 12 CFR 1306.04. To prevent diversion of controlled substances, the CSA regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General. He may deny, suspend, or revoke a registration that, as relevant here, would be "inconsistent with the public interest."

 

In determining consistency with the public interest, he must consider five factors, including the State's recommendation, compliance with state, federal, and local law regarding controlled substances, and "public health and safety." 823(f). The CSA explicitly contemplates a role for the States in regulating controlled substances.

 

WHEREAS, although the Gonzales case involved a schedule II controlled substance and marijuana is a schedule I controlled substance, nonetheless Gonzales is instructive in this instance as to the authority of the United States Attorney General in enforcement of controlled substances; and

 

WHEREAS, section 329-125(a), Hawaii Revised Statutes, provided immunity from prosecution -- "A qualifying patient or the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana under this part or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part"; and

 

WHEREAS, Hawaii's medical marijuana law is at risk of being eviscerated by current federal enforcement of federal laws that prohibit the use, sale, or possession of medical marijuana as a schedule I controlled substance; and

 

WHEREAS, registered medical cannabis patients in Hawaii are at risk of federal prosecution for the medical use of marijuana as a Schedule I controlled substance; now, therefore,

 

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2012, the House of Representatives concurring, that the State Attorney General is requested to file an injunction in the United States District Court to enjoin enforcement of state and federal laws prohibiting cannabis, as a schedule I controlled substance, until it can be reclassified; and

 

BE IT FURTHER RESOLVED that the Governor is requested to request the Attorney General of the United States to recognize the right of the State of Hawaii to determine the appropriate issuance and use of medical marijuana that is based on the fact that the Legislature has determined that marijuana has a legalized medical use in Hawaii and therefore no longer meets all of the federal criteria for a schedule I controlled substance; and

 

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor and the State Attorney General.

 

 

 

 

OFFERED BY:

_____________________________

 

 

Report Title:

Medical Marijuana; Federal Enforcement