Pubdate: Fri, 27 May 2011
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2011 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Author: Mary K. Reinhart
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

ARIZONA TO SUE OVER MEDICAL-MARIJUANA LAW

Arizona will ask a federal court today to clarify whether its 
voter-approved medical-marijuana law conflicts with federal drug 
statutes, launching what probably will be a lengthy legal battle that 
could cripple the state's fledging industry and spark more legal action.

Gov. Jan Brewer also will put a temporary halt to the state's permit 
process for marijuana dispensaries, set to begin Wednesday, with an 
executive order issued by Tuesday, her office said. She does not plan 
to stop issuance of medical-marijuana user-ID cards.

The motion for declaratory judgment, to be filed in U.S. District 
Court in Phoenix, pits Brewer and two state agency directors against 
voters and patients who supported Proposition 203, as well as 
potential dispensary owners who could face federal prosecution.

It also names U.S. Attorney General Eric Holder and U.S. Attorney 
Dennis Burke as defendants, and will argue that their policies have 
spawned uncertainty and confusion.

Brewer and Attorney General Tom Horne say the suit was prompted by a 
May 2 letter from Burke to state Health Director Will Humble, warning 
that prospective pot growers and sellers could be prosecuted under 
federal drug-trafficking laws.

Arizona and 15 other states have medical-marijuana laws that conflict 
with federal law, which outlaws the cultivation, sale or use of marijuana.

Although Burke said his office would not go after people who use 
medical marijuana "in clear and unambiguous compliance" with state 
law, Horne and Brewer maintain that his letter, along with a raft of 
memos from federal prosecutors in other states, signaled a 
harder-line policy and the threat that state workers could be prosecuted.

"This is obviously a change in policy," Horne said. "We are not 
taking a position against the will of the voters. We are simply 
bringing it to court and asking the court to decide."

Burke said there has been no policy change, and he chided Horne and 
Brewer for having a news conference earlier this week to announce a 
lawsuit they hadn't yet filed. He said it's unclear what they are 
expecting a federal judge to decide, since the laws are in clear conflict.

"They're a moving target," Burke said. "I'm not really sure what it's 
about. I don't know how to add it up."

He said his office will continue to enforce federal drug laws, 
focusing its efforts on major trafficking cases and drug cartels.

"We have no intention of targeting or going after people who are 
implementing or who are in compliance with state law," Burke said. 
"But at the same time, they can't be under the impression that they 
have immunity, amnesty or safe haven."

Brewer said this week that she was particularly concerned about state 
employees, including those processing patient-ID cards and state law 
officers who may be asked to overlook a federal crime under state law.

Both the Departments of Health Services and Public Safety are 
plaintiffs in the lawsuit.

But Burke's two-page letter made no mention of Arizona employees, who 
have been processing ID cards for thousands of medical-marijuana 
users since mid-April and are preparing to license dispensaries and 
cultivation sites this summer. And he said Thursday he has no 
intention of prosecuting them.

Attorney Lisa Hauser, who authored the state's medical-marijuana law 
and represents potential dispensary owners, said Brewer and Horne 
both opposed Proposition 203 and likely have another motive.

"They can say what they want, but it does appear intended to thwart 
the will of the voters," Hauser said. "They don't want to take a 
position because they don't want to upset the voters."

The lawsuit will ask the court to decide whether compliance with 
Arizona's law provides a shield from federal prosecution and whether 
the state law is enforceable since it conflicts with federal law.

While the legal wrangling continues, among the impacts:

- - No permits, no dispensaries, more lawsuits.

Potential dispensary owners who had lined up leases, municipal zoning 
and medical directors in anticipation of the June 1 application 
opening will have to bide their time. It could be awhile.

Several are listed as defendants in the lawsuit, with the motion 
arguing that their investments are at risk amid the legal uncertainties.

Attorneys say their clients knew the legal landscape going in but 
still pulled together investors and persuaded cities and landlords to 
approve their non-profit enterprises.

Under state rules, the Health Department would accept applications 
through June and issue up to 126 permits by August.

Prop. 203 allows for lawsuits in Superior Court if the state fails to 
implement the law, and Brewer's plan to put the permit process on 
hold is likely to spark a few.

"We have several clients who are ready to apply, and they're waiting 
to hear whether they're on hold or not," attorney Ryan Hurley said. 
"They've invested a lot of money in reliance on this."

- - Patients keep growing their own plants.

Prop. 203, approved by voters in November, legalized 
medical-marijuana use for people with certain debilitating conditions 
and allowed them to designate someone as a "caregiver" to grow or 
otherwise obtain marijuana for them.

Both patients and caregivers are authorized to grow 12 plants per 
patient if the patients live more than 25 miles from a dispensary. 
Since there are not yet any licensed dispensary licenses, caregivers 
and patients are allowed to grow their own. The state has licensed 
nearly 2,700 growers so far.

There is no limit to how much a dispensary can grow, and some 
advocates argue that a few large-scale cultivation sites would be 
easier to oversee and regulate than hundreds or thousands of backyard 
operations.

For now, at least, the growing will be small-scale and widespread.

"All (Brewer is) doing is throwing the whole system into chaos," said 
Karen O'Keefe, director of state policies for the Marijuana Policy 
Project, a national pro-legalization group that backed Arizona's law. 
"She's making sure that cultivation is statewide."

- - Dispensaries might give up.

Potential dispensary owners have put together fragile, time-sensitive 
deals. Leases and special-use permits expire, and financing can fall through.

Among other things, state rules require that a dispensary applicant 
have access to at least $150,000 in startup capital.

"Maybe they hope that after months and months of delays, everybody 
will just go away," Hauser said.

They might.

Randy Brown had hoped to apply for a dispensary license, but he lost 
his funding this month as fear and confusion mounted over their legal 
liabilities.

"What this has done is cause people who would otherwise be financiers 
to freak out and pull out," Brown said. "This is probably going to be 
a show-stopper."
- ---
MAP posted-by: Jay Bergstrom