Arizona Medical Marijuana Law Doesn't Ask State Workers to do Anything Illegal, Lawyers Say; "Bad Faith" Prosecution by Feds Deemed Unlikely

The Arizona U.S. Attorney isn't likely to launch a "bad faith" prosecution against state workers administering the new medical pot law, says a group opposing Governor Jan Brewer's federal lawsuit on the issue.

Besides, say lawyers for the group of defendants, those state workers wouldn't be violating federal law, anyway.

The case should be thrown out because of those and other reasons, the defendants argue in a motion filed on Friday. (See below). The defendant group includes lawyers from the American Civil Liberties Union, would-be dispensary owners and other supporters of medical marijuana.

Brewer and state Attorney General Tom Horne, who both opposed Proposition 203 before its successful passage at the polls in November, filed the lawsuit in late May and ordered the state Department of Health Services to reject any and all dispensary applications until further notice. Their legal action came a few months after Horne discussed the possibility of a lawsuit with Prop 203's chief opponent, Carolyn Short, and also followed a May 2 reminder by Arizona U.S. Attorney Dennis Burke that pot was still illegal under federal law.

The new motion is a response to arguments in the case made earlier this month by Horne. The state leaders claim their chief concern is that Burke would prosecute workers for carrying out the wishes of state voters.

In follow-up statements to his May 2 letter to the state, Burke "made clear that his omission" in the letter of state employees "was purposeful," the defendants argue in the latest motion. "Nonetheless, Arizona stubbornly suggests that the exclusion of state officials should be read, in fact, as their inclusion."

Yet even if Burke hadn't emphasized that he had no intention of going after state workers, the workers would never actually possess marijuana, the defendants state. Nor would workers use "any type of property to possess, manufacture, use or distribute marijuana."

In other words, the No. 1 reason that workers wouldn't face a threat of prosecution is because they aren't going to be doing anything wrong.

Another good point by the defendant group: Horne's previous reply admits that drug conspiracy laws require "specific intent" to commit a crime, (an intent state workers wouldn't have), yet claims that fact would merely be something to raise at trial by the defense. The group notes that a prosecutor probably would never take the case in the first place with such an important element like "intent" missing.

Lastly, the new motion reiterates that Horne and Brewer, by not taking any position in the lawsuit for or against the state law, are improperly manufacturing a legal controversy.

Of course, Brewer doesn't want to take a blatant position on this issue, because that would be admitting the truth: She's thwarting the will of voters.

Pot Lawsuit Reply Defs

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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.
Contact: Ray Stern