AZ: Medical-marijuana backers slam lawsuit

AZ: Medical-marijuana backers slam lawsuit
azstarnet / 5/28/2011 / By Howard Fischer Capitol Media Services

PHOENIX – Backers of medical marijuana charge that a federal lawsuit filed late Friday is designed let the governor and the attorney general do in court what they could not persuade voters to do: keep the use of the drug illegal in Arizona.

Richard Keyt, an attorney who helps companies set up dispensaries, said the lawsuit is worded in a way to ensure the judge can reach only one conclusion: the federal Controlled Substances Act trumps the Arizona Medical Marijuana Act. And Keyt said states cannot change federal law.

Ryan Hurley, who also represents would-be dispensary owners, said that, if a federal judge agrees to hear the case – something that is far from a certainty – there is no way he or she can rule that Arizonans are free to ignore the federal statutes making possession, sale and transportation of marijuana a felony.

"The best case scenario we get out of the lawsuit is status quo," he said.

"We’re never going to get a decision that says federal law cannot be enforced in Arizona," Hurley continued. "That will never happen."

And Paula Pennypacker, one of the people whom Attorney General Tom Horne named in the lawsuit as interested in defending the state law, called it an attempt by "the far right" to ignore the will of the voters. "And I’m a Republican," she added, like Horne and Gov. Jan Brewer, who directed that the lawsuit be filed.

What makes the litigation significant for the future of medical marijuana is the way Horne phrased the question for the court.

He has given the judge two choices: declare the Arizona law complies with federal law and should be implemented, or rule it "should be declared pre-empted in whole or in part because of an irreconcilable conflict with federal law," which could justify Brewer stopping the Department of Health Services from implementing the law.

Brewer already has ordered Will Humble, her health director, not to license either the growers or the sellers while the lawsuit is pending.

But the governor is continuing to let state workers issue cards to "qualified patients," since a provision is the law deems them to be automatically approved if the state fails to act on an application in 45 days.

Horne denied the wording is designed to get a pre-determined result. But he said it doesn’t matter, even if his legal papers are worded that way.

He pointed out that the state is suing not only officials at the U.S. Department of Justice but also several groups and individuals who have an interest in preserving the Arizona law as voters approved it in November.

"They will file cross-claims against each other," Horne said, pitting the defenders of the law against the federal government, which will lead to the court’s getting multiple versions of what the different interests want it to rule.

But Horne said, at the governor’s direction, he will not defend what voters approved.

"The governor decided, and I agree, we should take a neutral position," he said.

That presumes a federal judge will take the case.

"I think that there’s a significant potential that the lawsuit will be dismissed," said Hurley. He said courts generally do not like to rule on what are essentially academic issues, which this is, since no one has been charged with violating federal law.

Calls and emails to the governor’s office over the past two days are running strongly against the suit, with 208 opposed and 12 in support by late Friday.

Horne denied the suit reflects his and Brewer’s opposition to medical marijuana, saying he has "a very strong record of defending the idea that we should respect the will of the voters."

He said the state was readying to implement the law until Dennis Burke, the U.S. attorney for Arizona, sent a letter to Humble pointing out that marijuana still violates federal law, and noting his office does not plan to go after sick people using marijuana in compliance with state law, but could charge those involved in cultivating or selling it.