Arizona Appeals Court: Medical Marijuana on College Campuses Is Not a Crime

Nate Nichols
A 2012 Arizona law that erased legal protections for medical-marijuana holders on college campuses has been found unconstitutional by the state Court of Appeals.

At the same time, the court tossed the conviction of Arizona State University student Andre Maestas, who was charged under the law in 2015 with felony cannabis possession by the office of Maricopa County Attorney Bill Montgomery.

The 3-0 decision by the court is a victory for both the Arizona Medical Marijuana Act and the 1998 Voter Protection Act. But it likely doesn't mean students or faculty with medical-marijuana cards will be free in the future to consume or possess marijuana:

The court panel said the state or the Legislature can still ban cannabis from campuses — they just can't make it a crime.

"I'm very pleased that the court has upheld the Voter Protection Act, especially given the climate we have now, with the Legislature trying to change the initiative process," Maestas' pro-cannabis attorney, Tom Dean, said. The VPA "did exactly what it was supposed to do in this case."

Last month, Governor Doug Ducey signed a law that bans payments per signature to people gathering signatures for a citizens initiative, a move that critics say will make it tougher for the people to put measures on the ballot. The Legislature is still considering two other anti-initiative laws.

Phoenix New Times was the first to break the news to Maestas, who's now in his last semester at ASU, preparing to graduate with a degree in digital culture.

"That's fantastic!" he exclaimed. "I'm actually kind of speechless. We knew we were within our rights."

Arizona voters overwhelmingly approved the Voter Protection Act in 1998 after the Legislature gutted a 1996 drug-reform and medical-marijuana law, which also had been approved by a large majority of voters. The Legislature's anti-democratic action had enraged voters, who expected the laws they enacted through the state's century-old initiative process to be honored instead of ripped up by lawmakers.

The VPA requires a three-fourths majority for the Legislature to tamper with a voter-approved law, but even then, new legislation must "further the purposes" of the law being changed. When former Governor Jan Brewer signed the college-campus ban into law in 2012, medical-cannabis advocates predicted it would be overturned because of the VPA.

The case that led the campus ban's reversal began on March 18, 2015, when Maestas — 19 at the time — sat down in the intersection of Forest Avenue and Lemon Street just past midnight. Maestas has chronic back pain.

Campus cops soon showed up and questioned him. They found his medical-marijuana card during a search of his wallet. Upon further questioning, Maestas admitted he had some pot in his dorm room. A police searched turned up about a half-gram of bud and some smoking implements.

Three months later, Maestas received a notice from Montgomery's office that he was being charged with a misdemeanor for obstructing a public thoroughfare, and a felony for marijuana possession.

Maestas and Dean filed a petition to the Arizona Supreme Court for a special action in the case, but were rebuffed.

The Arizona Medical Marijuana Act, (AMMA), approved by a narrow margin of voters in 2010, says nothing about college campuses, but banned medical marijuana entirely from K-12 campuses.

The 2012 campus ban signed by Brewer, however, essentially reinstated the state's felony possession law for patients if they possessed or consumed cannabis on any college campus.

The thousands of pot-possession cases reviewed each year by the prosecutor's office are typically knocked down to misdemeanors, which avoids jamming up the court system.

That's what happened in Maestas' case. He ultimately was found guilty of two misdemeanors: one for the roadway obstruction, and one for possession. He received a one-year probation sentence and appealed the possession conviction, leading to Thursday's ruling.

Absent the 2012 law, the appeals court noted, Maestas would not have been subject to prosecution. The sole issue in the appeal was whether the 2012 law violated the VPA.

By specifically banning medical marijuana from K-12 campuses, (as well as school buses and correctional facilities), the AMMA "offers no textual support for the notion that otherwise lawful use of marijuana on college or university campuses can be made criminal," Presiding Judge Peter Swann wrote in the six-page opinion.

The law does, on the other hand, allow schools and landlords to discriminate against medical-marijuana cardholders "to protect federal monetary or licensing benefits," Swann wrote.

The state of Arizona, represented by the Arizona Attorney General's Office, argued in the case that the Legislature had the authority to ban medical marijuana based on the same theory.

The AMMA provides protection against a discrimination claim by a patient on the idea that failure to discriminate could jeopardize funds or benefits. But, Swann wrote, "nothing in the plain language of the statute authorizes criminalization of cardholders' possession of marijuana on college or university campuses."

"Like any other landowner, the state may regulate what items or material may be brought onto its property," Swann wrote.

The state can create non-criminal policies or laws to prohibit medical marijuana on college or university campuses, the opinion continues.

Swann suggested that if someone then fails to follow the rules, the state could have the person charged with trespassing.

Whether the ruling means medical marijuana can be used on college campuses as of today isn't entirely clear. Universities generally have internal policies banning drugs and alcohol from dorm rooms, for example.

ASU officials did not immediately respond to a request for comment.

UPDATE: The Arizona Attorney General's Office tells New Times that no decision has yet been made on whether to pursue an appeal of the ruling to the Arizona Supreme Court.

The state has 30 days from the ruling to decide.

UPDATE 2: New Times asked the Arizona Board of Regents what would happen to a state-authorized medical-marijuana patient caught with marijuana on a public university campus, now that arrest is no longer an option.

ASU General Counsel Cynthia Jewett released a statement on Friday indicating that students are still governed by a code of conduct mandated by the ABOR. If a student, who was a patient, had marijuana in a dorm room, the person would face discipline from a warning to removal from the dorm. Clearly, that's much better than a felony arrest. Here's Jewett's complete statement:

"All students at the university are subject to the provisions of the ABOR Student Code of Conduct (ABOR 5-308) and university policy (SSM 106-03). In addition, students living in the university’s residential halls must also abide by the terms of the license agreement. Our student affairs professionals apply the provisions of our policies and license agreement to the particular facts of the matter. Outcomes range from a warning up to removal from the residential hall."

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.