- By: ABC15.com staff, wire reports
PHOENIX – The federal government reiterated to Arizona that it will prosecute state workers for implementing the medical-marijuana program.
In a Feb. 16 letter to Gov. Jan Brewer, Acting U.S. Attorney Ann Birmingham Scheel said her office will continue to “vigorously enforce” federal laws against those who operate and facilitate large marijuana production facilities and marijuana production facilities involved in the selling of marijuana for medical use.
Scheel said that state employees who participate in the Arizona Medical Marijuana Act “are not immune from liability” under the federal Controlled Substances Act.
However, Scheel wrote that seriously ill patients and caregivers who use pot as medically recommended treatment “will likely not be the focus of the (U.S. Attorney’s Office’s) limited prosecutorial resources.”
Brewer spokesman Matt Benson told The Arizona Republic the governor will not change course and will allow the state’s medical marijuana program to move forward.
“This doesn’t change anything for us,” Benson said, adding that the letter “leaves most of the governor’s questions unanswered” partly because it doesn’t address whether state employees face imminent prosecution for participating in the program.
Arizona’s medical-marijuana program was created in 2010 after voters passed a law that allows people with certain debilitating medical conditions to use marijuana.
Patients must register with the state, which issues identification cards to qualified patients and caregivers. Under the law, the state will set up and regulate up to 126 dispensaries.
Arizona and 15 other states have medical-marijuana laws that conflict with federal law, which outlaws the cultivation, sale or use of marijuana. Mounting federal pressure in California, Washington and other states has led to dispensary raids and crackdowns on landlords who lease property to dispensaries.
Will Humble, director of the state Department of Health Services, said the state is in a difficult position when it comes to implementing the medical marijuana program.
On one hand, federal authorities warning there is no “safe harbor or immunity” from federal prosecution, but on the other hand a state judge has ordered them to move forward with the program.
“We’re caught between a rock and a hard place — we’re stuck,” Humble said.
No state health employees will be allowed to “volunteer” to work on the medical-pot program and no one will be forced to work on it, either, he said.
Workers will go through a series of training in how to act responsibly and safely when working on the program, Humble said.
In January, a federal judge dismissed Brewer’s lawsuit asking for a ruling on whether the state can implement its medical marijuana law when the drug remains prohibited under federal law.
U.S. District Judge Susan Bolton said the case wasn’t legally eligible for court consideration because the state hasn’t established a genuine threat of prosecution of state employees for administering the law, as Brewer had claimed.
Bolton’s order allowed the lawsuit to be refiled within 30 days if Brewer could prove a real threat of prosecution.
Brewer said she wouldn’t refile a federal lawsuit and the state would start accepting and processing applications for dispensaries once a legal challenge to the state’s rules is resolved. That case is pending in state court.
The judge’s order dismissing the suit granted motions filed by the federal government and supporters of the medical marijuana law.
by Paul Armentano, NORML Deputy DirectorJanuary 13, 2012
A brief history: In November 2010 Arizona voters narrowlydecided in favor of ballot measure 203, which removes state-level criminal penalties for the use and possession of up to 2.5 ounces of marijuana by patients who have written certification from their physician indicating that cannabis may alleviate their condition. The measure also mandated the state to adopt rules to govern the establishment of up to 125 nonprofit cannabis dispensaries, which would be legally authorized to produce and dispense marijuana to authorized patients on a not-for-profit basis.
In April 2011, the Arizona Department of Health Services formalized rules regarding an online ID-card registration for qualified patients. (More than 16,000 Arizona residents are now registered with the state to legally possess cannabis.) The Department also announced at that time that it would begin accepting applications from would-be dispensary operators by June 1. That deadline came and went, however, when Gov. Brewer — who had opposed the passage of AMMA — filed a lawsuit in federal court alleging that her administration’s compliance with the law’s state-licensing provisions would put state employees in danger of federal prosecution. In response to Gov. Brewer’s suit, attorneys representing the American Civil Liberties Union and the NORML Legal Committee co-authored a Motion to Dismiss the case.
Their efforts were successful. Earlier this month, a federal judge rejected Gov. Brewer’ challenge, asserting “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes. [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness. Therefore, Plaintiffs’ claims are unripe and must be dismissed.”
So, has Gov. Brewer finally gotten the message? Apparently so.
Today, Brewer’s office stated for the record that they would no longer challenge the state’s nascent law in court and instead will cooperate to see that the voters’ demands are once and for all fully enacted.Said the Governor in a press release:
“The State of Arizona will not re-file in federal court a lawsuit that sought clarification that State employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical Marijuana Act. Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a (separate) pending legal challenge to the Department’s medical marijuana rules is resolved. … With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.”
According to the website of the Arizona Department of Health, the department hopes to begin accepting applications for dispensaries this summer. To date, only three states — Colorado, Maine, and New Mexico — have granted licenses to allow for the state-sanctioned production and distribution of cannabis. (Several other states, including Delaware, New Jersey, Rhode Island, and Vermont, have enacted licensing legislation but to date have refused to issue any actual dispensary licenses.)
Under Arizona law, qualified patients may cultivate their own cannabis at home if they do not reside within 25 miles of an operating cannabis dispensary.
Additional information regarding Arizona’s medicinal cannabis program is available from the Arizona Department of Health Services here.