Pubdate: Wed, 04 Jan 2012
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2012 The Arizona Republic
Author: Mary K. Reinhart, The Republic


A U.S. District Court judge Wednesday dismissed Arizona's lawsuit
seeking to clarify whether its voter-approved medical-marijuana law
trumps federal drug laws.

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

"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

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

"These issues, as presented, are not appropriate for judicial

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
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