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SALT LAKE CITY — Utah’s legalized medical marijuana program may have problems before it even goes into effect.
Davis County Attorney Troy Rawlings recently told Davis County Health Department officials he recommends that the department not issue medical marijuana when Utah’s new Medical Cannabis Program begins next year. At the same time, Salt Lake County District Attorney Sim Gill said he has also voiced his concerns about the law to state officials.
During an appearance on KSL Newsradio’s "Dave & Dujanovic" Tuesday morning, Rawlings said he was asked by the Davis County Health Department to provide legal advice on the measure. He explained his advice to the department was based on the fact that federal law overrides state law.
Rawlings added while there has been an essential moratorium on federal prosecutions for medical marijuana, there’s no guarantee that will always be the case in the future. Therefore, the local department could be federally prosecuted, and that would beyond the control of the Davis County Attorney’s Office.
“It’s really a simple call for us. The United States Constitution has a supremacy clause. The supremacy clause says: In a situation where there’s a conflict of laws on the same issue, the federal law is going to be the one that prevails. It supersedes,” Rawling said on the show. “What we had to tell our health department is here’s your choice: You comply with the state statute and do what’s mandated under the state statute. We cannot promise you won’t be prosecuted by the Department of Justice, by the United States’ Attorney’s Office … Bottom line, the fundamental issue here is it’s a violation of federal law to do it, and that’s what we told our health department.”
Gill said the Salt Lake County Attorney's Office noticed a problem as the design for the program came together. He said he has voiced his concern with Senate Majority Leader Evan Vickers, R-Cedar City, who sponsored the state bill, and other county district attorneys across the state.
"As the law was created, it created a disproportionate shifting of liability to the county in violation of federal law," Gill said. "I was very deeply concerned about advising a client to knowingly and intentionally violate what would be federal law. That was one concern. The second concern was that, as the ethical responsibility of us as legal counsel we can't legally or intentionally tell a client to violate the law."
He supported Proposition 2 — which aimed to make medical marijuana legal in the state — because he said he didn't want to criminalize conduct from patients and because the proposed system maximized access medical marijuana to patients who may need it. While he said he still supports patients and decriminalizing medical marijuana, he said the way the law is currently written is why he advised Salt Lake County Health Department officials not to dispense medical marijuana nine months ago — although that determination wasn't made public until this week.
The risk of the county being punished extends to the possibility of the county losing federal grant money, both Rawlings and Gill said. Rawlings is a Republican and Gill is a Democrat.
Utah is far from the first state to legalize medical marijuana. As of 2019, a majority of states have passed laws legalizing some form of medical marijuana. Recreational use is currently allowed in 10 states, and Illinois will be the 11th state beginning next year.
Utah-based defense attorney Greg Skordas, a former prosecutor, disagreed with Rawlings’ opinion based on ongoing trends regarding marijuana. He spoke on "Dave & Dujanovic" after Rawlings Tuesday morning.
Skordas said federal government officials will still prosecute major cases involving significant quantities but haven’t looked at lower-level possession cases in recent years. That said, he doubts the Department of Justice would go after a government entity like the Davis County Health Department for distributing marijuana.
“(Rawlings is) just being a little bit overly cautious here. He’s right that the federal government still has determined that marijuana is against the law. … I think the trend is going the other way. I think the feds are really going to start loosening up their laws, or maybe even looking the other way when they have individuals who are in possession of marijuana,” Skordas said. “I just think it’s a trend that we’re headed in this country — that, generally, it’s going to be legalized universally at some point."
“He’s looking at the strict letter of the law, which is what a good prosecutor does, but he’s also not taking into account the practicalities of this and the fact the federal government does not have the time, nor resources, nor inclination to go after local legal marijuana distributors in the state of Utah, or any other state,” Skordas continued. “It’s not going to happen.”
As for Rawlings, he said he was just giving the health department advice when asked.
“The Davis County Health Department director asked us for legal advice, given the current status of the state statute and what’s supposed to happen coming next year,” he said, “so we had to weigh into it and give them the legal advice that we’re confident is accurate and appropriate. That’s what got us into this.”
The confusion regarding the legal status comes less than two weeks after the state’s Department of Agriculture and Food picked eight applicants that will be licensed to grow medical marijuana in the state. The eight were chosen from a field of 81 total applicants.
A University of Utah study estimated the state will have more than 15,000 active medical marijuana cardholders by the first year of the program and nearly 42,000 cardholders by the fourth year of the program. The program was created after a Utah Legislature “compromise” law was passed during a special legislative session in December 2018. It replaced Proposition 2, which aimed to legalize medical marijuana. Utah voters passed the initiative in November 2018.
The Utah House Democratic Caucus issued a statement Tuesday calling out the replacement plan for causing the confusion.
“Legislative leadership told Utah that Proposition 2 – Medical Cannabis, which the voters passed, needed to be replaced because it would not function. Now it looks like their replacement plan also will not function," the statement read. "The legislature cannot override the will of the voters with failed plans, like they also did with Proposition 3 – Medicaid Expansion, and hope to maintain any kind of trust with the people we are supposed to represent.”
Contributing: Dave Noriega and Debbie Dujanovic, KSL Newsradio; Ashley Imlay, Deseret News