"In a desire for professionalism, the department has utilized a standard of proof that is higher than the rules call for," Administrative Law Judge Dorinda Lang states in an eight-page ruling signed on May 24 and released publicly on Tuesday.
In 2010, voters approved a list of ailments that can qualify an Arizona resident to legally use marijuana: chronic pain, cancer, HIV/AIDS, hepatitis C, Crohn's disease, glaucoma, ALS, and agitation from Alzheimer's disease. Last year, the Arizona Cannabis Nurses Association submitted eight petitions to add new qualifying ailments to the state's medical-marijuana law, and the state denied every one. The activist group led by Heather Manus, a registered nurse, decided to appeal the denials for patients suffering from Parkinson's and Huntington's diseases. They enlisted the help of San Diego attorney and former Tucson dispensary principal Ken Sobel, who's working pro bono.
Greg Falls, a private attorney paid by the DHS with fees collected from patients and dispensaries, argued in February that the state was right to deny a hearing, because the group hadn't shown "sufficient evidence of acceptable scientific quality" that cannabis could help with Parkinson's.
To obtain a hearing, Lang wrote, state rules require only that "evidence" be submitted showing that cannabis can make a patient better, or at least feel better. That means "any evidence," she added. But the state decided that the evidence should meet the high standards of reliability that "physicians generally accept as useful to their level of responsibility."
The state also demanded that the petitioners submit information showing that cannabis has been "proven safe." Lang pointed out that the application for new qualifying ailments doesn't ask petitioners to include any information at all about the safety of marijuana. That meant the DHS "effectively denied Petitioner due process by denying the application on a basis that Petitioner had no opportunity to address."
The nurses association had submitted two studies published in peer-reviewed journals about using cannabis to treat patients. It's only necessary to look at one of them to determine if the association met the state standard, Lang wrote. A study from Israel found "significant" improvement in motor skills, sleep, and pain relief in patients who could tolerate the effects of cannabis.
The study found no adverse effects on those patients, addressing concerns of "those who balk at the lack of safety requirements," the judge wrote. "This is more than a scintilla of evidence."
In granting the appeal, Lang called for a public hearing on the issue of whether Parkinson's should be added to the list of qualifying conditions.
On Thursday, Manus told New Times she feels "empowered" by the judge's ruling. She and Sobel say a similar ruling is expected any day now on the Huntington's disease hearing.
"It's bittersweet, because we shouldn't have to fight this," Sobel said. "They use patients' money to act against patients' interest."
Manus says the group will move forward on applying for more qualifying ailments this year, likely including patients with traumatic brain injuries and, possibly, autism. She encourages members of the public to come out to the hearing, once a date is set.
DHS Director Cara Christ has a month to review the judge's ruling and decide what to do next, says DHS spokeswoman Holly Ward.
One option for Christ is to avoid the public hearing and designate Parkinson's as a qualifying ailment without further ado.
Sobel said he doesn't think that will happen.
"They have no intellectual curiosity about the subject — only political motive," he said. "They'll do everything they can to reject new qualifications."
As an April New Times article revealed, the state paid $650,000 last year and at least $94,000 this year to Greg Falls' firm, Sherman & Howard, LLC, for legal services related to medical marijuana. Citing attorney-client privilege, the state wouldn't disclose how much of that has gone to fighting new qualifying ailments.