Backers of medical marijuana charge that a federal lawsuit filed late Friday is designed let the governor and the attorney general do in court what they could not convince voters to do: keep the use of the drug illegal in Arizona.
Richard Keyt, an attorney who helps companies set up dispensaries, said the lawsuit is worded in a way that the judge can reach only one conclusion: the federal Controlled Substances Act trumps the Arizona Medical Marijuana Act. And Keyt said states cannot change federal law.
Ryan Hurley, who also represents would-be dispensary owners, said if a federal judge agrees to hear the case - something that is far from a certainty - there is really no way he or she can rule that Arizonans are free to ignore the federal statutes making possession, sale and transportation of marijuana a felony.
"The best case scenario we get out of the lawsuit is status quo," he said. "We're never going to get a decision that says federal law cannot be enforced in Arizona. That will never happen."
And Paula Pennypacker, one of the individuals whom Attorney General Tom Horne named in the lawsuit as interested in defending the state law, called it an attempt by "the far right" to ignore the will of the voters. "And I'm a Republican," she added, like Horne and Gov. Jan Brewer who directed the lawsuit to be filed.
What makes the litigation significant for the future of medical marijuana is the way Horne phrased the question for the court.
He has given the judge two choices: declare that the Arizona law complies with federal law and should be implemented, or rule that "should be declared preempted in whole or in part because of an irreconcilable conflict with federal law." A finding of the latter would give Brewer the justification to stop the Department of Health Services from implementing the law.
That means no more state-issued cards for those who have a doctor's recommendation to use marijuana beyond the approximately 4,000 that have been issued. It also means no state-regulated cultivation sites to grow the drugs or dispensaries to sell them.
Brewer already has ordered Will Humble, her health director, not to license either the growers or the sellers while the lawsuit is pending.
But the governor is continuing to let state workers issue cards to "qualified patients." Press aide Matthew Benson said the alternative is to trigger a provision of the law which says the failure of the state to process a completed application within 45 days means it is presumed to have been approved.
Horne denied that the wording of the lawsuit is designed to get a pre-determined result of a federal judge ruling that federal law supersedes state statute. But he said it doesn't matter, even if his legal papers are worded that way.
He pointed out the state is suing not only officials at the U.S. Department of Justice but also several groups and individuals who have an interest in preserving the Arizona law as voters approved in November.
"They will file cross-claims against each other," Horne said, pitting the defenders of the law against the federal government. "When they do that, the people who support the initiative will put it in language they think is best designed to have the court declare that we can proceed with the initiative without being arrested by the federal government."
But Horne said that, at the governor's direction, he will not be defending what voters approved.
"The governor decided, and I agree, we should take a neutral position," he said. Horne said all the state wants is a clear ruling on whether it can proceed to implement the law.
That presumes, though, a federal judge will opt to weigh in.
"I think that there's a significant potential that the lawsuit will be dismissed," said Hurley. He said courts generally do not like to rule on what are essentially academic issues.
It would be different, Hurley said, if someone charged with violating the federal law claimed immunity because of the state statute. At that point, he said, a judge would have to rule whether that claim is legitimate.
If calls and e-mails to the governor's office are any indication, Arizonans are decidedly against the decision by Brewer and Horne to go to court: In less than two days since announcing the action, there were 12 message in support and 208 opposed.
Horne acknowledged that both he and the governor opposed Proposition 203 which allows those who have a doctor's recommendation to purchase up to 2 1/2 ounces of marijuana every two weeks from a state-regulated dispensary. But he said the decision to force the issue in federal court despite the lack of anyone being prosecuted in Arizona has nothing to do with that.
"I also have a very strong record of defending the idea that we should respect the will of the voters," he said.
Horne was a legislator in 1997, the year after voters first approved a law allowing doctors to prescribe marijuana. Prosecutors asked lawmakers to amend the law, adding a provision to allow it to take effect only if the Drug Enforcement Administration decided marijuana had a legitimate medical use.
"Even though I opposed the (1996) initiative, I also opposed the conditional enactment effort to thwart it on the grounds that we should respect the will of the voters," he said.
Horne also said the state was pursuing plans to implement the law, at least until earlier this month when Dennis Burke, the U.S. Attorney for Arizona, sent a letter to Humble outlining the position of his office on the issue of the state law.
Burke said federal prosecutors have no interest in spending time going after those who use marijuana in accordance with state laws. But he also said that "even clear and unambiguous compliance with the Arizona Medical Marijuana Act does not render possession or distribution of marijuana lawful under federal statute."
Horne said this is a change in stance from a 2009 memo issued by David Ogden, a deputy U.S. attorney general.
Burke, however, said there is nothing different about what he wrote earlier this month. In fact, Ogden, in spelling out he was not saying anyone can use state law as a shield against prosecution, wrote, "nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act."
Duncan20903 posted at 4:22 pm on Sat, Oct 1, 2011.
NumberOne1AZfan, I hate to be the one to break it to you sunshine but Arizona already has a medicinal cannabis patient protection law. That must be what you mean because Arizona has had medicinal cannabis for decades, and decades, and decades.
NumberOne1AZfan posted at 7:22 am on Fri, Jun 24, 2011.
You will never get Medical Marijuana in AZ as long as Brewer and Horne are in power.
Next election , send this wicked witch back to OZ
RationalHuman posted at 9:29 am on Thu, Jun 2, 2011.
" they are not mentally strong enough to deal with reality unless they have a crutch"
Want to bet papasan173 goes to his religious "crutch" every Sunday?
Ignorant, bigotted hypocrites suck. That is all.
RationalHuman posted at 9:42 am on Wed, Jun 1, 2011.
"I believe that if a person is in so much discomfort (you have obviously never undergone chemotherapy treatments - "discomfort" is an INSULT) that only pot would alleviate it, then that person would find a way to procure it"
Yes, and that "way" you so glibly imply is currently ILLEGAL.
A cancer patient was just arrested last Sunday for possessing marijuana...and they even took her wig! (she's bald from the chemo).
And people like you would deny her proper medication...you all need to be lined up and shot.
papasan173 posted at 11:59 am on Tue, May 31, 2011.
Drug addicts will always try to justify their use of mind-altering, mood-changing substances because they are not mentally strong enough to deal with reality unless they have a crutch. As for medicinal needs, I believe that if a person is in so much discomfort that only pot would alleviate it, then that person would find a way to procure it, regardless. People have been getting it forever, so what is so different now?
RationalHuman posted at 9:49 am on Tue, May 31, 2011.
Leon needs to move to a country that shares his values...like Iran.
OH WAIT!!! Even in THAT oppresive regime, guess what's still legal?
LOL
Duncan20903 posted at 8:16 am on Sun, May 29, 2011.
It's hard to believe that there are people like Leon. Leon, Meth (Desoxyn), cocaine, oxycodone (Oxycontin) are already legal by prescription in the US. Medicinal meth is legal for school children older than age 6. Other countries like Great Britain have legal heroin by prescription, and I'm not talking about like the Swiss HAT program for maintenance of addiction. The US doesn't allow prescriptions of heroin, but we sure do allow fentanyl. Fentanyl sitting next to heroin makes heroin look like pablum.
It's too bad that you haven't the native intelligence to understand that it's prohibition that empowers and enriches the organized criminal syndicates, and that it is prohibition that is causing the social disorder that you're trying to blame on those that are trying to get needed medicine to as many people as possible in the face of an intransigent government which refuses to even look at the evidence.
It really is a shame that there are people so shortsighted and selfish that they'd make the sick suffer to maintain the charade of prohibition. It's despicable, cruel, and morally bankrupt and the really sad thing is that it doesn't even produce the end that they claim is the goal.
samkat posted at 4:32 pm on Sat, May 28, 2011.
For the critically ill people, there may be a limited use of wacky weed but there is no need for wide scale flimflam legalized pot dispensaries.
Leon Ceniceros posted at 1:40 pm on Sat, May 28, 2011.
Hey...POT HEADS.....why stop with the legalization of......MARIJUANA.
You guys won't will get bored just getting a hit from grass....then you will want to legalize.......HASH.....METH....OPIUM....HEROIN...OXYCONTIN.
and don't forget the KIDDIES....you will want to legalize..........PAINT SPRAY...and all the rest of the thing they are .........SNIFFING.
THE ...POT HEADS WON'T BE SATISFIED UNTIL............AMERICA IS A NARCO-STATE LIKE...........MEXICO....OR .....COLUMBIA.
seabourne posted at 9:08 am on Sat, May 28, 2011.
Understand the endo-cannabinoid system, discover what top doctors and researchers say, and so much more at
http://activistcat.com/
seabourne posted at 9:06 am on Sat, May 28, 2011.
It is time to "Change the Schedule of Cannabis, Cannabis Laws, and Drug Czar Laws"
Sign the petition at
http://www.change.org/petitions/change-the-schedule-of-cannabis-cannabis-laws-and-drug-czar-laws
I ask all to please also sign the petition to Ban Ki-moon and all Heads of State, calling to "end the war on drugs and the prohibition regime, and move towards a system based on decriminalisation, regulation, public health and education. This 50 year old policy has failed, fuels violent organised crime, devastates lives and is costing billions. It is time for a humane and effective approach."
Please sign it at
http://www.change.org/petitions/end-the-war-on-drugs-avaaz-petition
Thank you!
Tigere posted at 8:32 am on Sat, May 28, 2011.
The Feds are a peculiar bunch - a right hand left hand kind of thing .... This from san francisco .....
http://www.sfweekly.com/2011-04-06/news/medical-marijuana-raids-obama-eric-holder-legalization-dispensaries-chris-roberts/2/
Obama wanted your votes - so "medical mj" became another of his political spins - the above article in the San Francisco Weekly might help understand why Az has filed this suit wanting the Feds to clarify their position and have it clearly defined and documented
to quote one the players in CA's Medical MJ game : "Know what I think?" .... "Barack Obama and Eric Holder are lying sacks of sh**."
Read the article and draw your own conclusions but the Feds are a funny and extremely peculiar group of meso-dorfs - I think Jan is wise in dotting I's and crossing T's for you and anyone else involved in the Medical MJ game.
Duncan20903 posted at 7:26 am on Sat, May 28, 2011.
This lame action has 0 (zero) chance of shutting down the program. The same
ditzy argument was used in County of San Diego v San Diego NORML (2009).
They lost.
http://www.iowamedicalmarijuana.org/documents/sandiego.aspx
quoted from link: -----> "In an action in which counties argued that the Medical Marijuana Program Act (MMP) invalid under preemption principles, the trial court concluded that the MMP and the Compassionate Use Act of 1996 were not preempted by the federal Controlled Substances Act and that the MMP was not invalid under the California Constitution. (Superior Court of San Diego County, Nos. GIC860665 and GIC861051, William R. Nevitt, Jr., Judge.)
--------------------
The SCOTUS declined to hear the County's appeal. That's 3 times that the SCOTUS has passed by the opportunity to overturn Cali's medicinal cannabis patient protection laws.
http://articles.sfgate.com/2009-05-19/bay-area/17202601_1_medical-marijuana-san-diego-county-drug-laws
quoted: "Prop. 215 remains in effect despite federal enforcement efforts that began as soon as it passed. In the counties' case, the court left intact a state ruling last year that said California remains free to decide whether to punish drug users under its own laws.
"The purpose of the (federal law) is to combat recreational drug use, not to regulate a state's medical practices," the Fourth District Court of Appeal in San Diego said in the July 31 decision."
"No longer will local officials be able to hide behind federal law and resist upholding California's medical marijuana law," said Joe Elford, lawyer for Americans for Safe Access, which also took part in the case."
------------------
It seems Mr. Elford didn't understand just how low some public officials will go in order to promote their own self serving political agendas.
azsauna posted at 6:11 am on Sat, May 28, 2011.
The voters of the State of AZ narrowly passed the MMJ law - end of that debate! The real issue is the conflict between States rights and the Federal Governments rights. A simple solution would be for the Feds to re-classify marijauna as a Group 2 controlled substance. Currently, marijauna is classed as Group 1 along with heroin while cocaine is Group 2!!! I am not interested in, nor I have used marijauna, but I know several people who benefit greatly from the benfits of using it for pain and nausea. Currently, each of those folks have to buy it "off the street", illegally. I voted for passage of the new MMJ law as have the voters in 16 other states! Time for the feds to wake up and honor states rights!!
JamesT1984 posted at 1:05 am on Sat, May 28, 2011.
Closely listen to an Inception dvd made before the January 8th Tucson shooting, especially during the dialogue, "Do It."
goldenkee posted at 12:48 am on Sat, May 28, 2011.
Nowhere in the U.S. Constitution is there a provision to regulate commerce within a State but, only among the States, (Article 1, section 8). As long as a product is not exported from one State to another, by Constitutional test the federal Controlled Substances Act (Harrison Act) fails to meet the test.
The Federal Government has the right to regulate its property and borders with International boundaries and among the states. But the Federal Government does not have the right to regulate what I am selling from a cart in downtown Phoenix whether that is Taco's or Pot.
I am not a big supporter of the Brewer or Horne or their personal reason for this suite. But, they have failed to ask the "real" question. Since the Civil war the States have slowly given up their right to govern to the federal government and in the process we have lost the authority to govern ourselves. In that sense our form of Republican government has been a dismal failure.
To put this in a "nut shell" The question is not whether Prop 203 conforms to federal law, but rather federal law (the Harrison Act) conforms to the Constitution. Currently we are seeing the same argument being applied to health care. But unfortunately Brewer and Horne are not applying this logic.
To this end they are looking for any way to kill “Prop 203" with complete disregard for the constitutional democratic processes in place in Arizona. “The vote of the citizens does not count”, which unfortunately is another dismal failure.
DaveKAz posted at 12:22 am on Sat, May 28, 2011.
The majority of the United States Supreme Court has concluded the preemption clause of the federal Controlled Substances Act (21 U.S.C. [*803] §§ 801-904) shows that Congress explicitly contemplated a role for the states in regulating controlled substances, including permitting the states latitude to continue their historic role of regulating medical practices. The actions of a state in the licensing of dispensaries have never been viewed as a conspiracy to manufacture or distribute marijuana any more than a doctor's recommendation. There is nothing new in the federal attorney's letter. Governor Brewer and her puppet attorney are wasting taxpayer money, defying the will of the voters, avoiding the real problems in our state, and once again demonstrating a barbaric glee in going after those who are less fortunate in our state. We judge societies by the way they treat the most unfortunate of their members but this is not a tact taken by Brewer or Horne, to them they are targets. This is how others will once again view our state. Perhaps the recall effort is the only way that governor Brewer will learn to respect the voters in our state. I don't think that either Brewer or Horne are smart enough to deal with a federal judge. I sincerely hope that the judge chooses to file Horne's suit in the trash, where it belongs.
goldenkee posted at 12:04 am on Sat, May 28, 2011.
LOL...We aren't talking about ...."cancer or arthritis" patients getting medical marijuana prescribed by their doctors and distributed by pharmacys.
Yep, that's exactly what were talking about! You need to revisit the facts, moran.
idunnonada posted at 8:24 pm on Fri, May 27, 2011.
Nice, let's continue to spend money we don't have fighting these stupid fights.
ConservativeChristian posted at 7:49 pm on Fri, May 27, 2011.
Jesus said to do unto others as we would have them do unto us. None of us would want our child thrown in jail with the sexual predators over a little marijuana. None of us would want our parent's home confiscated by the police for growing a couple of plants to ease the aches and pains of growing older. It’s time to let ordinary Americans grow a little marijuana in their own back yards.
Oldfoxbob posted at 7:23 pm on Fri, May 27, 2011.
Leon I can assure you the law was NOT for "Pot heads" as you state. I like Rational human use the Marijuana to treat my illness. With it I can eat, I do not vomit after my chemo treatments. I do not loose weight from the lack of eating. I do not get the headaches every day that are disabling to me. I can smile. I can laugh and not cry. Before medical Marijuana I used to cry, vomit, and more when I had chemo treatments. By your standards you want me to die in misery, instead of peace. Thank you Leon, thank you for being a closed minded bigot idiot who knows nothing about medical marijuana. I just hope I live long enough to see this mess over with. And yes I buy my pot on the corner right now but would rather buy it legally.
Leon Ceniceros posted at 6:52 pm on Fri, May 27, 2011.
LOL...We aren't talking about ...."cancer or arthritis" patients getting medical marijuana prescribed by their doctors and distributed by pharmacys.
THIS LAW WAS LEGALIZING ...........POT HEADS....GOING DOWN TO THE NEIGHBORHOOD..........."HEAD SHOP"....AND BUYING A COUPLE OF ......LIDS OF MAUI WOWIE AND A NEW ..."GLOW IN THE DARK"...BONG.
Rich posted at 6:51 pm on Fri, May 27, 2011.
Actually, like most if not all American politicians, they are mentally ill control freaks who get their kicks hurting people and leading them around in circles while they pick their pockets. What this lawsuit is called is sadism, but I really doubt it's the only fetish they engage in.
jim85035 posted at 6:34 pm on Fri, May 27, 2011.
Well , California and Colorado is part of these great United States Of America, If the Feds aren't attacking them , there is no Issue in Arizona.
Backers of medical marijuana charge that a federal lawsuit filed late Friday is designed let the governor and the attorney general do in court what they could not convince voters to do: keep the use of the drug illegal in Arizona. AND THAT IS WHAT THEy ARE DOING!
RationalHuman posted at 6:12 pm on Fri, May 27, 2011.
Thanks Leon, for showing us what an ignorant bigot you really are.
(actually the repeated CAPS and lack of grammar already pointed to this)
I have Stage 4 Lymph Node Cancer - and thugs like YOU are keeping me and other cancer patients from using medication that actually helps.
Let's hope we never, ever meet...I will be more than glad to offer you the same type of "help".
Leon Ceniceros posted at 6:01 pm on Fri, May 27, 2011.
THAT'S GREAT......THESE ..."POT HEADS" ....WILL THEN GO BACK TO .........CALIFORNIA...........WHERE THEY BELONG.