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.
Juggernaut8000 posted at 4:28 pm on Tue, Dec 13, 2011.
This proves the Federal Government is so defunct it is an embaressment...here is why. Arizona votes to have medical marijuana, but the feds attempt to block it here and in California. We vote to stop illegals from entering the state with SB 1070, but the Feds block it. They enforce drug laws but not illegal immigration laws...the real kicker is the illegals are the ones who bring in the marijuana by the ton.
This will be a third world country in 10 years because of bleeding heart liberals and the Fereral government.
anod12 posted at 11:08 am on Tue, Dec 13, 2011.
@Families, what a crock. You are ok as long as you get a pill from your doctor, but if someone chooses a different route there are consequences? So it's ok for the big pharmaceutical companies to blast ads for their latest and greatest pill all over media and brainwash the masses that they have the answer but it's not ok for people to want to try alternatives? You still believe the propaganda of the 1920's about marijuana?
Funny how Jan Brewer told the Feds to get out of State business when it came to immigration, but she couldn't run to them fast enough when it came to MM.
Families against Legalization of MJ posted at 9:38 am on Tue, Dec 13, 2011.
Put me down as a true believer that we made the drug dealers of Mexico, etc., VERY HAPPY with this law. Certain groups are sponsored by the seller of Medical Marijuana Cards; ie. sports groups which are 'below the general radar', ie disc golf tournaments. Encouraging, of course, the illegal use of marijuana for little aches and pains, legalizing it for them. Consequences; too many to name. The worst consequence, the children of the 'children' that have remained so because of Marijuana, using the harmful stuff. GO GO GO. GET THIS REPEALED!!!!!
retired03 posted at 8:11 am on Tue, Dec 13, 2011.
A judge, on any level ceniceros is trior of fact, not an advisor unless it is an appeals court who reviews a lower courts ruling. In other words, she has to have an issue argued before her in order to make a ruling. In this case, she made the right decision. In addition, your skewed views on many things left me un-surprised that you would eventually get off topic and rant about the president and other un-related topics
Leon Ceniceros posted at 5:56 pm on Mon, Dec 12, 2011.
Wow...the Judge's remarks aren't very "judge-ly". I hope her remarks weren't predicated in any way by the fact the the US Supreme Court did not "UPHOLD" her previous rulings on SB 1070.............and decided to "look a little more closely" at the Arizona Law. Now, just like everybody else...Federal Judges have "ego's" too. We are all human....aren't we ??? I can only imagine that a person of her high office and educational background "meant" that maybe the Arizona Attorney General Tom Horne just needed to cross a couple "t's" and dot a couple "i's" on his petition. Even someone like me can see that there is a "HUGE CONFLICT" between different Departments in the Obama Administration (just look at "Fast and Furious Scandal". One Department of Government is arresting "head-shop" owners left and right by the hundreds in California and 200 miles away, here in Arizona, the US Attorney is telling Governor Brewer that he has "no problemo" with Marijuana being sold willie-nillie out of every mini-mall in the East Valley. Who does Governor Brewer believe ???.............WHAT'S A GIRL TO DO............lol (obviously not ask this Federal Judge to decide the issue....that's for sure).
Oh well, Governor Brewer.....you know the old saying....WIN SOME....LOSE SOME !!!