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.