TE OF NEVADA IN THE SUPREME COURT OF THE STA No. 69801 JOHN DOE, ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF THOSE SIMILARILY SITUATED, Appellant, vs. STATE OF NEVADA EX REL. THE FILED LEGISLATURE OF THE 77TH SESSION OF THE STATE OF NEVADA ; JUL 2 5 2017 THE STATE OF NEVADA EL EIABETH A. BROWN DEPARTMENT OF HEALTH AND 4pyt (par .

CLERKg.f: SUPREA1E COURT BY ..___7:1 t a HUMAN SERVICES; AND THE HONORABLE BRIAN SANDOVAL, IN HIS OFFICAL CAPACITY AS GOVERNOR OF THE STATE OF NEVADA, Respondents.

ORDER OF AFFIRMANCE rt order granting This is an appeal from a district cou gment in an action regarding respondents' motion for summary jud Judicial District Court, Clark Nevada's medical marijuana laws. Eighth County; Rob Bare, Judge. ution was amended In November of 2000, the Nevada Constit rijuana for the treatment or to allow the possession and use of ma See Nev. Const. art. 4, § 38(1)(a). alleviation of various medical conditions. islature to establish a registry of This amendment also required the Leg ana for medical purposes. Id. § patients who were authorized to use mariju cted Assembly Bill 453, allowing 38(1)(d). As a result, the Legislature ena medical marijuana without fear registry identification cardholders to use SUPREME COURT OF NEVADA (0) 1947p e i7-z-Lisq offenses.' 2001 Nev. of state prosecution for certain marijuana-related -61. Subsequently, Stat., ch. 592, §§ 14(1), 17(1)(a), 24(1), at 3055, 3060 costs of administering the Legislature established two fees to defray the processing fee. 2003 the registration program: an application fee and a 453A.140.

Nev. Stat., ch. 281, § 8(3), at 1434-35; see also NAC a registry Appellant John Doe applied for, and received, try medical marijuana identification card after his doctor recommended he was unable to obtain to treat his migraine headaches. However, Doe ada Legislature, the medical marijuana and he filed suit against the Nev Services (the DHHS) Governor, and the Department of Health and Human ed that the medical (collectively, respondents). In particular, Doe argu his due process and marijuana registry and its associated fees violated imination. Doe also equal protection rights, and his right against self-incr stly enriched by the argued that the DHHS committed fraud and was unju registration fees. his self- Doe filed a motion for partial summary judgment on mary judgment on his incrimination claim and a counter-motion for sum S and the Governor due process and equal protection claims. The DHH a motion for summary filed motions to dismiss, and the Legislature filed respondents' motions, judgment. Ultimately, the district court granted the ifically, the district treating each as a motion for summary judgment. Spec state official—the court held that Doe failed to sue the proper

ntly approved "We acknowledge that the citizens of Nevada have rece itting the recreational the Regulation and Taxation of Marijuana Act, perm years of age and use of one ounce or less of marijuana by individuals of State, Question over. Nevada Ballot Questions 2016, Nevada Secretary No. 2.

SUPREME COURT OF NEVADA (0) 1941A e Administrator of the Division of Public and Behavioral Health—for declaratory and injunctive relief. In addition, the district court denied Doe's request to amend his complaint, holding that such an amendment would be futile because Doe's constitutional claims lacked merit. Finally, the district court held that Doe's state-law tort claims were barred as a matter of law due to the State's sovereign immunity. Doe now appeals from the district court's order.

We hold Nevada's medical marijuana registry does not violate the United States Constitution's Due Process, Equal Protection, or Self- Incrimination Clauses. Therefore, we affirm the district court's order.

Nevada's medical marijuana registry does not impinge upon a fundamental right Doe argues that this court should recognize a new fundamental "right to access the health care that our physicians recommend to us," and that the registry and its associated fees impose an undue burden on a patient's ability to exercise this right. Respondents argue that Doe's asserted right is more accurately understood as a right to use medical marijuana and that no such fundamental right exists.

The Due Process Clause of the United States Constitution prohibits a State from depriving "any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The United States Supreme Court has clarified that "Mlle Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719 (1997).

The Court, however, has "always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Id. SUPREME COURT OF NEVADA (0) 1947A ) cip. at 720 (internal quotation marks omitted). Indeed, the Court has cautioned that, "[Iply extending constitutional protection to an asserted right or liberty interest," a court "place[s] the matter outside the arena of public debate and legislative action." Id. Therefore, in deciding whether to expand the concept of substantive due process to encompass a new fundamental right, we must (1) carefully describe the asserted liberty interest; and (2) determine whether the asserted liberty interest is "deeply rooted in this Nation's history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [the right was] sacrificed." Id. at 720-21 (internal quotation marks omitted); see also State v. Eighth Judicial Dist. Court (Logan D.), 129 Nev. 492, 503, 306 P.3d 369, 377 (2013).

We construe Doe's proposed liberty interest as the right to use medical marijuana recommended by a physician. The Ninth Circuit has advised that an asserted liberty interest should be narrowly construed so as to avoid unintended consequences. See Raich v. Gonzales, 500 F.3d 850, 863-64 (9th Cir. 2007) (interpreting the appellant's proposed right as "the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life"). As in Raich, here, Doe's proposed right "does not narrowly and accurately reflect the right that [he] seeks to vindicate." Id. at 864. Doe seeks to use medical marijuana to help treat his migraines and argues that Nevada's medical marijuana registry interferes with his proposed right. Indeed, medical marijuana is the only means of healthcare implicated in this matter.

Furthermore, we hold that the right to use medical marijuana recommended by a physician is not so "deeply rooted in this Nation's SUPREME COURT OF NEVADA (0) 1947.A history and tradition ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [the right was] sacrificed." Glucksberg, 521 U.S. at 721 (internal quotation marks omitted).

To date, no court has recognized a fundamental right to use medical marijuana recommended by a physician, and the use of medical marijuana is still prohibited under federal law and the laws of 22 states.

See Raich, 500 F.3d at 866 (holding that "federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering"); see also United States v. Wilde, 74 F. Supp. 3d 1092, 1095 (N.D. Cal. 2014) (recognizing "no court to date has held that citizens have a constitutionally fundamental right to use medical marijuana"); Seeley v. State, 940 P.2d 604, 613 (Wash. 1997) (holding the respondent did not "have a fundamental right to have marijuana prescribed as his preferred treatment over the legitimate objections of the state").

In fact, although several states have legalized medical marijuana since Raich, the Ninth Circuit has continued to reject Doe's asserted liberty interest. See Sacramento Nonprofit Collective v. Holder, 552 F. App'x. 680, 683 n.1 (9th Cir. 2014) (acknowledging that "the use of medical marijuana is more accepted today than it was in 2007," but declining to recognize a fundamental right to use medical marijuana).

Given this precedent and the fact that almost half of the states currently prohibit the use of medical marijuana, it would be imprudent to remove the matter from "the arena of public debate and legislative action" at this time. Glucksberg, 521 U.S. at 720. Therefore, we decline to expand the

SUPREME COURT OF NEVADA (0) 1947A e concept of substantive due process to encompass a new fundamental right to use medical marijuana recommended by a physician.

Nevada's medical marijuana registry is rationally related to a legitimate state interest Doe argues that the registry discriminates against people who choose to use marijuana to treat their medical condition and that the registry is not rationally related to a legitimate state interest. 2 Respondents argue that the Legislature could reasonably believe the registry would aid in the enforcement of Nevada's medical marijuana laws by deterring potential violators or assisting in the detection and investigation of specific instances of apparent abuse.

The Equal Protection Clause of the United States Constitution prohibits the State from denying "any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The United States Supreme Court has stated that the "provision creates no substantive rights," rather, it "embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799 (1997).

Generally, in addressing an equal protection claim, we must determine whether (1) "the statute, either on its face or in the manner of its enforcement, results in members of a certain group being treated differently from other persons based on membership in that group"; and

2Because we conclude Doe's asserted liberty interest is not a fundamental right under the Due Process Clause, we reject Doe's argument that strict scrutiny applies in this matter. Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d 812, 817 (2005) (stating strict scrutiny is warranted when the case involves a "judicially recognized suspect class or [a] fundamental right").

SUPREME COURT OF NEVADA (01 1947A e (2) "if it is demonstrated that a cognizable class is treated differently, the court must analyze under the appropriate level of scrutiny whether the distinction made between the groups is justified." United States v. Lopez- Flores, 63 F.3d 1468, 1472 (9th Cir. 1995); see also Rico, 121 Nev. at 703, 120 P.3d at 817.

Several courts have held that "patients who choose to use a federally prohibited substance" are not "similarly situated to. . patients who chose to use federally permitted medicines." Boyd v. Santa Cruz Cty., No. 15-cv-00405-BLF, 2016 WL 3092101, at *4 (N.D. Cal. June 2, 2016); see also Wilson v. Holder, 7 F. Supp. 3d 1104, 1125 (D. Nev. 2014) (holding the appellant was "not similarly situated to individuals that avail themselves of treatment methods that comply with federal law"), aff'd, 835 F.3d 1083 (2016). However, even assuming Doe has satisfied this threshold inquiry, we conclude that Nevada's medical marijuana registry survives rational basis review.

Under rational basis review, legislation is presumed to be valid and will be sustained "if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller u. Doe, 509 U.S. 312, 320 (1993). The State need not "produce evidence to sustain the rationality of a statutory classification," rather, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." Id. (internal quotation marks omitted).

In Whalen v. Roe, the United States Supreme Court addressed "whether the State of New York [could] record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful SUPREME COURT OF NEVADA (0) 1947A and an unlawful market." 429 U.S. 589, 591 (1977). The Court held "that the patient-identification requirement" under the New York Controlled Substances Act was constitutional, as the legislature could reasonably believe the requirement might "aid in the enforcement of laws designed to minimize the misuse of dangerous drugs." Id. at 597-98. The Court also recognized that the State had a "vital interest in controlling the distribution of dangerous drugs," and therefore, it could "experiment with new techniques for control." Id. at 598.

We conclude Nevada's medical marijuana registry is rationally related to a legitimate state interest. The Nevada Constitution states that one of the purposes of the registry is to provide enforcement officers a means "to verify a claim of authorization." See Nev. Const. art. 4, § 38(1)(d). Thus, like the patient-identification requirement in Whalen, here, the registry seeks to aid in the enforcement of laws designed to minimize the misuse of drugs. In addition, the State may experiment with a registry as a method for controlling a drug's use, and it is irrelevant whether the registry is an effective strategy for minimizing the misuse of marijuana. See Heller, 509 U.S. at 319 (stating "that rational-basis review . . . is not a license for courts to judge the wisdom, fairness, or logic of legislative choices" (internal quotation marks omitted)). Therefore, Nevada's medical marijuana registry satisfies rational basis review. 3

3 In addition, we hold that the Legislature could reasonably believe the imposition of registration fees would assist the State in operating and maintaining the registry.

SUPREME COURT OF NEVADA (0) 1947A 446,A Nevada's medical marijuana registry does not violate a registrant's right against self-incrimination Finally, Doe argues the registry violates his Fifth Amendment right against self-incrimination because he is compelled to disclose that he intends to use medical marijuana in violation of federal law. Respondents argue that Nevada's medical marijuana registration program is entirely voluntary, and thus, the Fifth Amendment is not implicated.

The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; see also Lefkowitz v. Turley, 414 U.S. 70, 73-74 (1973) (stating the Fifth Amendment's Self-Incrimination Clause applies to the states via the Fourteenth Amendment).

The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.

Lefkowitz, 414 U.S. at 77.

The United States Supreme Court has held that the Fifth Amendment's Self-Incrimination Clause is not implicated when an individual is required to disclose information as part of a voluntary application for benefits. See Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 856-58 (1984). In Selective Service System, male applicants for financial aid were required to file "a statement of compliance" with their university which certified that the student had registered for the draft pursuant to the Military Selective Service Act (MSSA). Id. at 844. Appellees were students who "need[ed] financial aid to pursue their educations," but who had failed to register for the draft SUPREME COURT OF NEVADA (0) 1947A within 30 days of their 18th birthday as required under the MSSA. Id. at 845. They argued that, by filing a statement of compliance, the law required them "to confess to a criminal act . . . in violation of their Fifth Amendment rights." Id. at 856.

The Court rejected the appellees' argument, stating that "a person who has not registered clearly is under no compulsion to seek financial aid; if he has not registered, he is simply ineligible for aid." Id. Following this rationale, a federal district court concluded that the Fifth Amendment's Self-Incrimination Clause was not implicated when an individual applied to participate in the District of Columbia's medical marijuana program as a cultivator or dispensary operator. See Sibley v. Obama, 810 F. Supp. 2d 309, 310-11 (D.D.C. 2011).

We hold the rationale expressed in Selective Service System and Sibley applies in this matter. Nevada law does not compel anyone to seek a registry identification card, and if an individual does apply, Nevada law does not impose criminal or civil penalties on them if they do not complete the application. Rather, the applicationS may simply be denied.

This possibility, in itself, does not implicate the Fifth Amendment's Self- Incrimination Clause. 4 Accordingly, we

4 Doe also argues that the district court erred in (1) holding the State's sovereign immunity barred his state-law tort claims, (2) denying his motion for a permanent injunction, and (3) denying his request to amend his complaint. Doe concedes that each of these arguments fail if his constitutional claims are rejected. Therefore, having rejected Doe's constitutional arguments, we hold Doe's additional arguments are without merit.

SUPREME COURT OF NEVADA (0) 1947A ORDER the judgment of the district court AFFIRMED.

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cc: Hon. Rob Bare, District Judge Lansford W. Levitt, Settlement Judge Hafter Law Attorney GenerallCarson City Legislative Counsel Bureau Legal Division Attorney GenerallLas Vegas Eighth District Court Clerk SUPREME COURT OF NEVADA