Gov. Jan Brewer decided Wednesday to ask a federal judge to overturn a key portion of the state's voter-approved medical marijuana law.
Press aide Matthew Benson said his boss is now taking the position that federal law preempts a provision in last year's initiative which requires the state to issue permits for about 125 dispensaries where medical marijuana users can legally purchase the drug. She wants U.S. District Court Judge Susan Bolton to rule that Arizona cannot process the applications from would-be dispensary owners.
The move comes two days after Bolton told attorneys for the state she would throw out Brewer's original lawsuit which simply asked the judge to decide if state employees can be prosecuted under the federal Controlled Substances Act for processing permits. Bolton said the state has to pick a side: Either federal law trumps last year's initiative, or the state can implement its law despite federal statutes.
Benson said Brewer has chosen the former position, even though that's contrary to what voters mandated.
"She does support the will of the voters," Benson said.
"But she also has to look out for the well-being of her state employees," he continued. "No state employee should be put in a position where they could face federal prosecution simply for doing their jobs."
Brewer's move drew derision from Joe Yuhas, spokesman for the Arizona Medical Marijuana Association, the organization left over from last year's successful initiative drive.
"That's unfortunate," he said.
"I also think it's somewhat ironic that a state government that seems to continuously question federal preemption, whether it's health care or immigration, now runs behind that shield in an effort to thwart the will of the voters."
Brewer is one of several governors challenging the federal health care law. And she is taking the position at the U.S. Supreme Court that Arizona can have its own immigration laws despite claims by the Obama administration these are preempted by federal statutes.
But Benson said there is no contradiction.
"The governor has never claimed state law supersedes federal law," he said.
"The argument has always been federal government, do your job, enforce the law, enforce immigration law, enforce drug law," Benson explained. "That is what this has always been about."
The voter-approved law allows those with a doctor's recommendation to get a state ID card allowing them to obtain and possess up to 2 1/2 ounces of marijuana every two weeks.
Brewer, who opposed Proposition 204, is not asking Bolton to invalidate that part of the law. Benson said that is not a high priority. So far the state has issued more than 16,000 such cards.
The initiative also directed the health department to license about 125 dispensaries where medical marijuana users could legally purchase the drug.
State Health Director Will Humble earlier this year wrote a letter to Dennis Burke, who at the time was the U.S. Attorney for Arizona, specifically asking whether his employees might face prosecution because they were facilitating the sale of marijuana. Burke did not directly answer that question but did say that, in general, he cannot offer immunity to anyone for violating federal drug laws.
Brewer responded by directing Humble to not even accept applications from those who want to operate one of the non-profit dispensaries the law envisions. And she had Attorney General Tom Horne to file suit, asking Bolton for clarification.
But Bolton on Monday said she cannot legally do that until the state decides which side it is on, leading to Wednesday's decision.
The refusal of Brewer to license dispensaries has not denied medical marijuana users access to the drug.
One provision in the voter-approved law says cardholders who live at least 25 miles from a state-licensed dispensary are entitled to grow their own marijuana. Since there are no dispensaries, that now means everyone.
Yuhas said the whole federal lawsuit is a waste of time and taxpayer money.
He said it's uncontroverted that Arizona's Medical Marijuana Act, just like similar laws in 16 other states, is in conflict with the Controlled Substances Act. But he also said the danger of anyone being pursued by federal officials is virtually nil, citing testimony Attorney General Eric Holder gave last week to the U.S. House Judiciary Committee.
"Our thought was that where a state has taken a position, has passed a law, and people are acting in conformity with a law, not abusing the law but acting in conformity with it, and, again, given our limited resources, that would not be an enforcement priority for the Justice Department," Holder testified.
Brewer's new legal position does not guarantee that Bolton now will issue a ruling.
At Monday's hearing, Ezekiel Edwards, an attorney for the American Civil Liberties Union, urged the judge to dismiss the case, even if the governor did choose a side. He said the state has no legal right to go into federal court and ask a judge to essentially void a state law.
Brewer's move also comes just hours after Maricopa County Attorney Bill Montgomery announced he would intercede to take a position even if Brewer would not.
At a Wednesday morning press conference, Montgomery said he believes federal law overrules the state statute. And he brushed aside questions of whether states - and their voters - have inherent rights to decide whether their residents can grow, sell and consume marijuana.
"I'm not arguing for states' rights in this regard as much as I wouldn't argue for states' rights in furthering the institution of slavery," Montgomery said. "It's against federal law."
He also rejected a question of whether it's an invalid comparison to compare slavery, which takes away an individual's rights, with the Arizona Medical Marijuana Act which grants new rights to residents who have a doctor's recommendation to use the drug. He said that, given all the criminal activity surrounding marijuana, there is a need for a single, consistent national policy.
Montgomery, like Brewer, said that is not inconsistent with his position Arizona is entitled to enact and enforce its own immigration laws.
Bolton is not the only one looking at the issue.
In a separate case, several prospective dispensary operators are asking Maricopa County Superior Court Judge Richard Gama to order Humble to start processing those applications. Their attorneys contend that state officials have no legal right to ignore a state statute.
Gama has not yet issued a ruling.
HashCentral posted at 7:41 pm on Wed, Dec 14, 2011.
"A hypocrite is the kind of politician who would cut down a redwood tree, then mount the stump and make a speech for conservation." Brewer and Montgomery are worse than just hypocrites since they also won't stand by the people who voted them in, then voted for the laws they wish to abide by. Arizona, Stand Up!
weedbay posted at 1:17 am on Thu, Dec 15, 2011.
Her (Brewer's) concerns are largely unfounded, no state employee has ever been arrested for implementing a state's marijuana law. This is simply posing and posturing to delay it's implementation. States considering medical cannabis laws would do well to to put implementation deadline dates within the bill, like what Arizona did for patient registration.
You can bet if they lose this case they will appeal. Calling it a case is an over reach, considering what the judge is telling them. We've seen this strategy before with the BOS from San Diego county here in California, his name was Horne too.
DaveKAz posted at 2:10 am on Thu, Dec 15, 2011.
Susan Bolten has to be one of the most patient federal judges in the country. Those who filed this suit have clearly not spent any time studying how other courts have ruled on these or similar matters. It is now becoming much clearer how the plot to overturn the will of the voters developed into the fiasco that we have today. Matthew Benson in trying to explain all of this has become the master of the Orwellian doublethink. The concern that Brewer expresses regarding state workers is so disingenuous as to be laughable. If the DEA decided to go after state workers they would certainly go after all who implement the Arizona Medical Marijuana program, those who issue cards as well as those who license dispensaries. Since state workers already issue cards, presumably they could already be at risk. This has not happened in any other state medical marijuana program nor is it likely to happen here. Nor will the courts or those who enforce federal laws guarantee immunity to anyone. That is just not done. Brewer, Horne, and Montgomery's contempt both for the voters and the federal court system is reprehensible. I hope that when the dust clears here that Judge Bolten throws out this ridiculous suit and sends the Bozos who filed it back to the circus where they belong.
spider posted at 2:36 am on Thu, Dec 15, 2011.
An interesting perspective, Dave. The problem with your analysis is that actual prosecution of state employees is not necessary, so the "likelihood" of the feds prosecuting state employees is irrelevant. The issue is that state employees are violating federal law. A state law simply can't require people to be federal criminals. All have acknowledged that the feds won't and can't give state employees immunity from prosecution. You are correct about the marijuana cards. State employees can't issue those, either. The entire state law is preempted by federal law.
Peetz posted at 8:15 am on Thu, Dec 15, 2011.
This should come as great news for many, many end users of the product. Grow your own.
DaveKAz posted at 8:58 am on Thu, Dec 15, 2011.
Spider, the point is that I can’t go to court and sue you because I think that you might do something. It is my understanding that this kind of case requires an immanent threat or an actual harm that needs to be remedied. The threat does appear to be manufactured as there is no real harm that has been caused by the federal government, nor is it likely that there will be real harm when you look at what has happened in other parts of our country. If it is argued on the basis of the idea that the state commits a conspiracy to sell drugs by issuing a permit that argument is not likely to prevail. That argument was used when the Supreme Court ruled that doctors do not conspire to possess or sell marijuana when they recommend that patients use marijuana unless they help them obtain it. I disagree with you that there is an actual federal law that prevents the state from licensing dispensaries. I am not aware of the specific statute to which you refer. Perhaps you could enlighten us.
spider posted at 9:43 pm on Thu, Dec 15, 2011.
Dave -- The Controlled Substances Act, which makes it illegal to possess, use, grow or sell a controlled substance. Marijuana is a Schedule 1 controlled substance. State employees who issue marijuana cards or dispensary licenses are "facilitating" the possession, use cultivation and/or sale of marijuana contrary to the CSA.
soricobob posted at 4:29 am on Fri, Dec 16, 2011.
Just another case of opportunism; use the Feds when you chose to, but condemn them when you don't.
malcolmkyle posted at 5:23 am on Fri, Dec 16, 2011.
Governor Brewer has intimate ties to Corrections Corporation of America. - Her Chief of Staff, Paul Senseman, is a former CCA lobbyist, and his wife is currently a lobbyist for the company. Brewer’s campaign manager and senior policy advisor, Chuck Coughlin, runs a consulting firm that also lobbies for CCA in Arizona.
http://www.youtube.com/watch?feature=player_detailpage&v=s-nUM4Gzv-I
Because Drug cartels will always have an endless supply of ready cash for wages, bribery and equipment, no amount of tax money, police powers, weaponry, wishful thinking or pseudo-science will make our streets safe again. Only an end to prohibition can do that! How much longer are we willing to foolishly risk our own survival by continuing to ignore the obvious, historically confirmed solution?
If you support the Kool-Aid mass suicide cult of prohibition, and erroneously believe that you can win a war without logic and practical solutions, then prepare yourself for even more death, tortured corpses, corruption, terrorism, sickness, imprisonment, economic tribulation, unemployment and the complete loss of the rule of law.
The only thing prohibition successfully does is prohibit regulation & taxation while turning even our schools and prisons into black markets for drugs. Legalized Regulation would mean the opposite!
Prohibition is nothing less than a grotesque dystopian nightmare; if you support it you must be either ignorant, stupid, brainwashed, insane or corrupt.
DaveKAz posted at 8:09 pm on Fri, Dec 16, 2011.
Spider, had the courts taken the stance that licensing of dispensaries "facilitated" the manufacture and sale of drugs dispensaries would have been closed down in the rest of the states that permit medical marijuana and dispensaries. I am not a legal expert but it is my understanding from the cases that I have reviewed that the courts tend to take a more concrete approach in that they view facilitation as providing something that you would need to grow or helping you tend the plants, etc. The Arizona Medical Marijuana Act provides immunity from state prosecution and does not shield anyone from federal prosecution for growing. Attorney general Holder said the other day when being questioned by a representative from Colorado that the reason that they had gone after California dispensaries was their lack of state regulation (among other things) and that Colorado's much stricter form of state regulation had protected them from the actions taken in California. The regulation required by the Arizona Medical Marijuana Act is far more strict than that required in California as far more state supervision is required.
Marmaru posted at 2:54 pm on Mon, Dec 19, 2011.
I'm curious, what part of the Bill of Rights (US Constitution) grants the Federal Government any say in the "laws" passed by the State Governments? Does not the 9th Amendment supercede any rules or "laws" passed by the Federal Government, or at least render them mute?
The Bill of Rights were/are not a basis of law for the Citizens of the US. They are rules or laws for the Federal Government. When "We The People" eventually understand the Common Law (or Natural Law as Maybury calls it, ie: "Do all you have agreed to do and do not encroach on other persons or their property") is LAW and the legislation by our "Representatives" must adhere to the restraints of The Bill of Rights, most of these questions will be local and state issues based on the local democratic preference.
drrealitycheck posted at 6:56 pm on Mon, Dec 19, 2011.
Since the so-called Medical Marijuana law was based on a fraud, it has no legal standing. There is no medical problem that Marijuana can treat and in other states that perpetuate this fraud, it's used by addicts complaining of "pain".
If you want to get high, do a campaign for legalizing it. Claiming it's for medical reasons is fraud, and so no such law exists.
drrealitycheck posted at 6:59 pm on Mon, Dec 19, 2011.
@ Marmaru; The Bill of Rights does not say what you claim it does; no doubt you learned about the Constitution in an Arizona public school. Federal law always supersedes state law, no exceptions. States rights were abolished at the time of the US Civil War, and rightfully so.