Half of Arizona’s voters (49.9 percent) voted against “medical” marijuana, many suspecting it was just a scam to legalize pot. They’ve since been proved right. But what most opponents don’t know is that our elected officials could and should stop this law today. Prop 203 authorizes violations of federal law, and states can’t do that, not even by voter initiative.
It’s still a federal crime to grow, sell or possess marijuana, and it’s also a crime to help anyone doing those things. So state employees who license patients or dispensaries to grow, sell or possess marijuana are federal criminals. Landlords who rent to growers or dispensaries are federal criminals. And those who lend money to marijuana businesses are federal criminals.
Several U.S. Attorneys have written letters warning that state employees, landlords, and financiers who help others violate the federal Controlled Substances Act can be prosecuted. Possible consequences include fines, jail time and forfeiture of property.
When Democratic governors in Washington and Delaware received this warning, they shut down their dispensary programs immediately. As Washington Governor Christine Gregoire said, “No state employee should be required to violate federal criminal laws.” She believed it would be “irresponsible for her to leave her workers vulnerable.”
She’s right. Even if no one is prosecuting state employees now, nobody knows what a future administration (or even this one) might do, and the statute of limitations leaves state workers vulnerable for many years. If a future administration decides to prosecute, the state can’t pay the fine or go to jail for the employee.
However, when Republican Governor Jan Brewer received the exact same warning from Arizona’s U.S. Attorney, she ignored the warning, kept the letter secret from Attorney General Tom Horne, and continued with her plan to license dispensaries. Why?
Arizona Attorney General Tom Horne filed a lawsuit in federal court asking Judge Bolton to advise him whether federal law preempts Prop 203, but he didn’t take a position for or against. Judge Bolton told the AG’s office to file an amended complaint taking a position, or she would dismiss the lawsuit. If he had taken a position, the judge would have overturned Prop 203, but Horne never filed an amended complaint. Why not?
Last May, Maricopa County Attorney Bill Montgomery advised county employees not to issue licenses or permits under Prop 203, because they’d be violating federal law. Montgomery urged Tom Horne to issue a similar opinion to protect state employees, but Horne hasn’t acted. Why won’t he?
Governor Brewer, or our state legislative leaders, Senate President Steve Pierce and House Speaker Andy Tobin, could insist that Tom Horne issue that opinion. Why haven’t they?
These actions would be prudent and reasonable, and would bring Prop 203 to a grinding halt, but our state leaders refuse to act. Voter protection is no excuse because unconstitutional laws aren’t voter protected. For example, if Arizona’s voters decided that women couldn’t vote, a federal court would strike it down even if 99 percent of Arizonans voted in favor. So Horne, Brewer, Pierce and Tobin have every right and reason to halt the entire program. Why won’t they?
Do our Republican leaders dislike President Obama and the federal government so much they’re opposing them on this issue even when they know the feds are right? That would be ironic because they’re fighting them over SB 1070, Arizona’s attempt to enforce federal law. Now they’re fighting them over Prop 203, Arizona’s attempt to violate federal law.
Elected officials should care equally about enforcing federal drug laws and federal immigration laws. Instead, they appear to despise illegal immigrants while embracing illegal drug users. Perhaps our well-intentioned leaders are getting bad advice.
Arizona now has the most lax marijuana law in the nation. It’s clearly unconstitutional. The courts and the Obama administration have told our Republican leaders exactly how and why to get rid of it. What’s stopping them?
Carolyn Short, retired lawyer and Chairman of Keep AZ Drug Free, the organization that led the opposition to Prop 203.