Arizona Governor Helping Medical Marijuana

In an unusual legal request, Gov. Jan Brewer had asked the court to mediate the conflict between state and federal drug laws. But Judge Susan Bolton tossed the suit, saying the state couldn’t show its workers were at risk of federal prosecution for following Proposition 203, or even if it intended to fully implement the law.

Although Bolton’s decision clears the way for state health officials to begin licensing medical-marijuana dispensaries, officials are not likely to begin the process immediately.

Brewer spokesman Matthew Benson said the governor would consult with Attorney General Tom Horne before deciding whether to appeal Bolton’s ruling.

“What this court has essentially said is that it won’t hear the state’s lawsuit unless and until a state employee faces federal prosecution for enforcing Proposition 203,” Benson said. “The federal court has essentially punted on the issue.”

Under the law, passed in 2010, state workers issue special ID cards to people with certain medical conditions, authorizing the patients to use marijuana. Prop. 203 also allows the Department of Health Services to issue permits for a limited number of marijuana dispensaries.

Brewer filed suit in May, just days before the dispensary-permit process was to begin. She asked the court to clarify whether U.S. drug laws override Prop. 203 and, if not, whether state workers are immune from federal prosecution for implementing it.

But the governor allowed the health department to continue issuing ID cards to qualified medical-marijuana users. Nearly 18,000 Arizonans have permission to use marijuana to treat a variety of debilitating conditions, including cancer and chronic pain, and about 15,000 of them have requested permission to grow the plant.

In her order, Bolton said the state could file an amended complaint, but the state would have to satisfy two key problems: Federal prosecutors have not threatened to prosecute state or municipal employees for following the law; and the state can’t show that any harm will come absent a court ruling.

“Plaintiffs do not challenge any specific action taken by any defendant,” Bolton wrote. “Plaintiffs also do not describe any actions by state employees that were in violation of (the Controlled Substances Act) or any threat of prosecution for any reason by federal officials.

“These issues, as presented, are not appropriate for judicial review.”

Brewer and Horne said the lawsuit was prompted by federal prosecutors, including former Arizona U.S. Attorney Dennis Burke, signaling a crackdown against the medical-marijuana industry. They said their chief concern was protecting state employees, though Burke and other U.S. attorneys said their focus was on large-scale trafficking, not patients or public employees who were complying with state laws.

Burke and top federal prosecutors across the country sent a series of letters to governors last year, saying they would abide by earlier policies discouraging the prosecution of medical-marijuana users but warning that using, selling or distributing marijuana still violates federal law.

The prosecutors said they would continue to focus on large-scale operations, and Burke’s letter did not mention state employees, who continue to process ID cards. He also told reporters he had no intention of prosecuting state workers.

Arizona and 15 other states have medical-marijuana laws that conflict with federal law, which outlaws the cultivation, sale or use of marijuana. Mounting federal pressure in California, Washington and other states has led to dispensary raids and crackdowns on landlords who lease property to dispensaries.

Wednesday’s ruling came in response to a motion to dismiss filed by the American Civil Liberties Union.

ACLU Attorney Ezekiel Edwards called on Brewer to implement the law that voters approved.

“The majority of voters in Arizona passed a statute to regulate marijuana as medicine,” Edwards said. “They’re just obstructing the will of the voters.”

Five other medical-marijuana lawsuits are still pending in Maricopa County Superior Court, including two filed by would-be dispensary owners against the state for failing to fully implement the law.

In arguments last month, attorney Ty Taber told Judge Richard Gama that Brewer had no right to refuse to implement a voter-approved law. Gama took the matter under advisement.

Under state rules, the Health Department was to begin accepting dispensary applications last June and issue up to 126 permits by August. The law allows patients to grow up to 12 plants per person if they live more than 25miles from a dispensary.

Medical-marijuana advocates say Brewer’s failure to fully implement the law is leading to widespread marijuana cultivation, rather than fewer, large-scale regulated sites.

“The people of Arizona should be outraged that there are continuing efforts to use their money to pursue a political agenda,” said Joe Yuhas of the Arizona Medical Marijuana Association. “Do we really want potentially 150,000 patients growing their own marijuana? Because that is the road we’re on right now.”

Meanwhile, at least four states recently asked the Obama administration to change marijuana’s classification under federal drug laws so it could be prescribed, removing the conflict between state and federal laws and avoiding the risk of federal prosecution.

Currently marijuana is listed alongside other street drugs, such as heroin and LSD, with a high potential for abuse and no acceptable medical uses. State officials in Washington, Rhode Island, Colorado and Vermont want marijuana included with drugs — such as cocaine, opium and morphine –that can lead to abuse or addiction, but can be dispensed legally for medical treatment.

Benson said the governor does not plan to join the other states in that request because she doesn’t believe reclassifying the drug would eliminate dispensaries and the potential for state employees prosecution.