A federal judge chided Attorney General Tom Horne Monday, saying he was asking her to do his job: advising state agencies on the law.
U.S. District Court Judge Susan Bolton said the state wants her to rule whether Arizona can issue licenses to dispensaries to sell marijuana to medical users without its workers being prosecuted for violating federal laws which make any use of the drug illegal. Gov. Jan Brewer has refused to process applications for dispensaries until she gets an answer.
But Bolton said the state, in its lawsuit, does not argue that there is immunity for state workers under last year's voter-approved Medical Marijuana Act. Nor does it argue the state cannot legally implement the law.
"You don't come to court and say, ‘Well, this our best advice, you give it a shot,'" she told Assistant Attorney General Lori Davis.
Davis protested that the state finds itself in "an impossible position," being told by voters to license dispensaries but fearing that the workers who process the applications can be charged with helping facilitate the distribution of marijuana. She said Bolton should tell the state - and the governor - whether it's OK to proceed.
"That's what the AG is for," Bolton responded. "It's not the courts that give (legal) advice."
While Bolton did not issue a formal ruling on Monday, the judge essentially told Davis that she will throw out the case unless the state takes a side.
"What position does the state wish to take?" she asked Davis.
The judge noted the state has two legal theories.
Bolton said if Brewer and Horne believe federal law conflicts with the initiative, they don't need to be in court.
"That's just stating the obvious," the judge said.
The other is that state workers can issue permits to sell marijuana despite the federal law - and that Bolton should rule they are immune to federal prosecution.
"I don't have the power to grant immunity," the judge said.
But what clearly frustrated the judge was the absolute refusal of the state to make a decision between the theories.
"You have to take a side," Bolton told Davis. She said once that happens there will be a real legal dispute for her to resolve, with advocates on both side to argue the finer legal points.
"You can't just ask me to figure it out on my own," Bolton said.
The law approved by voters last year allows those with a doctor's recommendation to get a state permit allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks. The state already has issued more than 16,000 of those permits.
That law also presumed that the source of those drugs would be about 125 state-licensed nonprofit dispensaries. But Brewer directed state Health Director Will Humble not to even accept applications.
"We are exposing our citizens and, more importantly, our state workers to threat of federal prosecution," Davis told Bolton in asking for a ruling. "We should not be required to go to the point of risking federal prosecution, of betting the farm."
Bolton indicated she might be willing to let the case continue - if Arizona picks a side.
The judge said the state could side with the backers of the law and would-be marijuana dispensary operators, in which case they would face off in court against the federal government. The alternative is siding with the Department of Justice that federal law prevails, in which case Arizona and the Obama administration would be on the same side against the proponents of medical marijuana.
Davis said after the hearing she would wait to see what the judge decides.
But Ezekiel Edwards, an attorney for the American Civil Liberties Union, which is representing the backers of last year's initiative, told Bolton that, even then, she should toss the case. He said there is no credible threat that any state worker ever would be prosecuted simply for processing dispensary permits.
He also said the lawsuit is little more than a tactic by Brewer and Horne to delay implementing the voter-approved law.
The lack of dispensaries has not kept medical marijuana users from getting drugs. The law also says that medical marijuana users can grow their own drugs if they are at least 25 miles from a dispensary - and the lack of any dispensaries means that applies to everyone.