State Goes to Court to Seek Ruling on Medical Marijuana Law

Phoenix, AZ – It has always been clear that there is a conflict between the law voters approved in November and federal statutes. The former lets individuals with a doctor's recommendation and a state-issued card legally obtain up to 2 1/2 ounces of marijuana every two weeks. Federal law makes possession of that drug a felony. What changed, according to Gov. Jan Brewer, is that Dennis Burke, the U.S. Attorney for Arizona, sent a letter to the state health department earlier this month warning that those who comply with the Arizona law should not consider themselves immune.

(The United States attorney went on to say that he will continue to vigorously prosecute individuals and organizations participating in unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law.)

Brewer said that raises a host of questions. One is whether having state officials issue permits for people to possess marijuana, or licenses to sell it, will draw the attention of federal prosecutors. So she directed Attorney General Tom Horne to file suit in federal court asking for a declaration of whether the state can go ahead with its plan. But the state will not be arguing that its laws trump federal statutes or even that Arizonans have a legal right to decide for themselves whether marijuana should be considered medicine. Instead, the state will take no position. Ryan Hurley, an attorney who represents some would-be dispensary owners, said the move is designed to thwart the will of the voters.

(It's unfortunate that they're taking this position. I think that the questions that were asked, clearly if they were in favor of protecting voters' rights, they would be filing this action stating the Arizona medical marijuana act should be implemented.)

The governor, who opposed the initiative, sidestepped repeated questions about why she and Horne are not actively defending the law as a matter of states' rights.

(Well, I did oppose it. I went public with that because I thought it wasn't a good idea. The bottom line is, I can't stress it enough, that I believe that we need clarification so that there's no penalty found on people that are promoting, facilitating the sale of marijuana in the state of Arizona.)

Horne acknowledged that there are issues of states' rights involved, just the same as there are in the lawsuit he and Brewer are waging against the federal government for the right to let Arizona enforce its own immigration laws. Horne said the difference is that he believes there is no conflict between Arizona having immigration laws and the federal statutes, as both are trying to achieve the same goal.

(In this case, there is a clear conflict. And so there is a need for a judge to issue an opinion. But I think the governor is wisely not trying to impose either the policy preference that you referred to earlier that she took during the election or trying to violate the will of the voters. She's saying we'll present it to the court and the court will decide.)

Horne said he expects to file the lawsuit on Friday. For Arizona Public Radio this is Howard Fischer.