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Mary Cease is a 67 year old disabled veteran with no prior criminal record (“Cease”), yet the Housing Authority of Indiana County in Pennsylvania (“Authority”) denied her Section 8 housing because she dared to disclose that she had chosen to legally use medical marijuana instead of opioids to mitigate her constant back pain stemming from multiple surgeries. The Authority denied her housing without establishing or applying any other criteria beyond her use of medical marijuana. The Authority found that her use of medical marijuana was a violation of the Controlled Substance Act (“CSA”) for which she could be denied housing.
On February 19, 2021, the Commonwealth Court found that the Authority was wrong. The Court determined that the Authority “must establish standards for determining when and on what basis admission is prohibited for a Section 8 housing applicant who the Authority determines is illegally using a controlled substance.” The Court found that the standards a housing authority establishes must take into account factors such as:
- nature of the substance
- whether the use is clearly unlawful or in an unclear legal state such as the case where, as in Pennsylvania, the state has decided to legalize its use
- the reason for the substance use
- whether it is being used in accordance with legal requirements
- the applicant’s background, behavior during prior residency, and the presence or absence of any prior criminal record.
The Court also noted that the term “illegally using a controlled substance” was ambiguous in the context of the Cease matter where her use was prohibited by federal law but permitted under state law and where criminal law is primarily a matter for states to decide. The Court went on to point out that “Federalism is central to the constitutional design” where both the National and State Governments have elements of sovereignty “‘the other is bound to respect.'” Arizona v. United States, 567 U.S. 387, 398 (2012).
Perhaps most wide-reaching, was the Court’s conclusion that “while possession and use of marijuana remains illegal under federal law even for medical purposes, . . . the federal [CSA] does not (and could not) require states to enforce it.” Id. at 714 This conclusion coupled with the finding that the provisions of the Housing law “QHWRA” are based on “the obsolete and scientifically flawed premise that marijuana ‘has no currently accepted medical use in treatment'” makes this Court’s decision pivitol in Pennsylvanians’ efforts to receive the full benefits that medical marijuana can provide.
