WSR 11-19-017

OFFICE OF THE GOVERNOR


[ Filed September 8, 2011, 11:16 a.m. ]


NOTICE OF APPEAL

RCW 34.05.330(3)



Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

On July 21, 2011, July 22, 2011, and July 29, 2011, the Governor's Office received appeals from John Worthington relating to the Washington State Board of Pharmacy's denial of a petition to repeal or amend WAC 246-887-100. The Governor's Office denied the petitions on September 6, 2011.


DATE: September 6, 2011

Narda Pierce

General Counsel to the Governor


cc: Barbara Baker, Chief Clerk of the House of Representatives

Tom Hoemann, Secretary of the Senate

September 6, 2011


John Worthington

4500 SE 2nd Place

Renton, WA 98059


Re: Steve Sarich, Steve Fager, John Worthington v. Washington State Board of Pharmacy - Appeal to the Governor Under RCW 34.05.330.


John Worthington v. Washington State Board of Pharmacy - Appeal to the Governor Under RCW 34.05.330.


Dear Mr. Worthington:


I am writing in response to your appeals dated July 21, 2011, July 22, 2011, and July 29, 2011, appealing the Washington State Board of Pharmacy's denial of your petition to amend WAC 246-877-100 to remove marijuana from the list of Schedule I substances. After careful review, I have determined to deny your appeal of the Board's July 18, 2011 "Decision Denying Petition for Rulemaking."


The focus of the petition and the appeal is a legal question: whether the Board has the legal authority to place or retain marijuana on Schedule I under Washington's Controlled Substances Act without making findings on the criteria listed in RCW 69.50.203(a).


The Legislature has specifically provided the Board with legal authority to place a substance on Schedule I without making the findings that would otherwise be required if the substance is so scheduled under Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol. See RCW 69.50.203(b). The Board has the same option with regard to placing substances on Schedules II, III, IV or V. RCW 69.50.205(b), .207(b), .209(b) and .211(b).


Your letters of appeal contend that despite the options that the Legislature provided to the Board, I should order the Board to conduct hearings and enter findings. RCW 34.05.330(3) does not provide the Governor with the authority to direct rulemaking by the Board of Pharmacy, since it is not an agency listed in RCW 43.17.010. Further, the Legislature specifically provided alternatives to the Board of Pharmacy and the Board acted within the parameters of its legal discretion.


The appeal suggests that it would violate federal law for the Board to exercise its discretion and deny the rule-making petition based on the federal government's placement of marijuana on Schedule I under the federal Controlled Substances Act. I have reviewed the legal authorities provided and find they do not override or change Washington state law. The petition relies on National Organization for the Reform of Marijuana Laws (NORML) v. Drug Enforcement Administration, (D.C. Cir. 1977). There the Acting DEA Administrator claimed United States treaty obligations relieved him from following the federal statute that required the Administrator to refer the petition to the Secretary of Health, Education, and Welfare for an evaluation. The federal court held the treaty did not allow the Administrator to ignore the actions he was required to take under the federal statute. The Board of Pharmacy is not governed by the federal law, and adopts or amends rules under state law. Here, the Board has followed state law.


Additionally, the appeal suggests that Washington must follow the actions of other states that have rescheduled marijuana by statute or administrative rule. This claim is based on provisions expressing the Legislature's intent that Washington's Controlled Substances Act and Administrative Procedures Act should be construed and interpreted in light of the general purpose to have uniformity and consistency among states that have adopted similar statutory provisions. The provisions that the states of Oregon and Iowa have adopted are not similar to Washington's statutory provisions, so this rule of construction does not come into play. Certainly other states' legislatures cannot amend Washington law. The appeal also cites the "full faith and credit" clause of the federal Constitution, but the Supreme Court has long noted that this clause does not enable one state to legislate for another or project its laws across state lines, and does not provide a basis for substituting another state's law for our own statutes. See, e.g., Franchise Tax Bd. of California v. Hyatt, 538 U.S. 488, 494 (2003).


Additionally, controlled substances listed in Schedule I under federal law may not be prescribed or dispensed anywhere in the United States unless a specific registration to do so is obtained. Thus, marijuana cannot be legally prescribed, nor can a prescription for marijuana be filled by a pharmacist in Washington, unless there is a change in the federal schedule.


For these reasons, I am denying your appeals and declining to recommend that the Board initiate rule-making proceedings. As you note in your appeals, my focus will be on seeking change at the federal level.


Sincerely,

Christine O. Gregoire

Governor

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office