Governor Brewer to Ponder Medical Marijuana Lawsuit Ruling While Keeping Her Ban on Dispensaries; Supporters of Law Praise Ruling

Governor Jan Brewer and her legal counsel will study today's dismissal of her lawsuit against the medical marijuana law while keeping a ban on dispensaries, a spokesman says.

Brewer, with the help of state Attorney General Tom Horne, filed the federal complaint back in May, claiming a letter by a former Arizona U.S. Attorney prompted the action. The state officials had asked for a declaratory judgment on whether the voter-approved Medical Marijuana Act was legal, complaining that state workers could be at risk of prosecution if they administer a medical-marijuana program because pot's illegal under federal law.

It was a thinly disguised attack on a state law that they didn't like. It also exposed Brewer as a hypocrite on the issue of states' rights. Her attack on medical marijuana took place even as she and Horne spent taxpayer dollars defending two state anti-illegal-immigrant laws that the federal government claims are unconstitutional. 

As a later New Times story exposed, Horne had considered filing the complaint as early as January after being lobbied to do so by the Medical Marijuana Act's primary opponent, Carolyn Short of Keep AZ Drug Free. Both Brewer and Horne had publicly opposed Prop 203 before voters passed it.

At the same time Brewer filed the lawsuit, she ordered the state Department of Health Services to reject applications for the medical-marijuana dispensaries authorized by voters.

Despite U.S. District Judge Susan Bolton's ruling today tossing out the lawsuit, "nothing has changed" in regards to the governor's stance on dispensaries, says Brewer's spokesman, Matt Benson.

Bolton's ruling states that Brewer's lawsuit just isn't ripe. A "generalized risk of prosecution" isn't good enough to satisfy the legal requirement of an active controversy for such a lawsuit, Bolton wrote.

The judge had argued in a recent court hearing that the state still had not taken a side for or against the voter-approved law, something she said was necessary for the lawsuit to proceed. However, in her new ruling, Bolton says that even if Brewer had taken a stance, her complaint is still unripe because it's unclear whether or not state employees engaged in implementing the program would be at risk.

Former U.S. Attorney Dennis Burke's May letter is "silent as to state employees," Bolton wrote. (Burke followed up his letter with statements to the press that specifically precluded the notion of busting state employees for following state law.)

Brewer and Horne "have not shown that any action against state employees in this state is imminent or even threatened," Bolton wrote. Nor have the Arizona officials shown that state workers have ever been prosecuted in any other states for medical-pot "licensing schemes."

Benson, speaking for the governor, tells New Times that, "It's unfortunate in this incident that the federal court has basically said we have to wait for a state employee to be prosecuted or face imminent prosecution before the state's lawsuit will be heard. That's an untenable position for state employees who are just doing their jobs."

Brewer's position, then, assumes a truly silly idea: That Will Humble, director of the state DHS and his underlings will be prosecuted by the feds for following state law.

This is a straw-man argument, though, apparently intended as a tactic in Brewer's fight against the pot law. Even if Newt Gingrich were elected president, a guy who once proposed that drug dealers be executed, it seems reasonable to conclude that state workers would receive plenty of warning about potential prosecution before actually being rounded up and cuffed. Bolton's right -- there's no threat of imminent prosecution.

Meanwhile, the Arizona Medical Marijuana Association, whose key members were the folks who put Prop 203 on the ballot last year, praised Bolton's ruling in a written statement:

We are obviously pleased with Judge Bolton's decision. Our hope is that our state leaders will stop wasting tax dollars with appeals and further litigation, and respect the will of Arizona voters who on three separate occasions have approved Medical Marijuana Initiatives at the ballot box. It's time to implement the Arizona Medical Marijuana Act in its entirety, and allow patients to secure their medicine in a safe, reliable, and regulated fashion. Further delays simply allow 16,000 patients who have already secured their medical marijuana ID cards to grow their own marijuana, rather than obtain it from a regulated dispensary.

The American Civil Liberties Union, which provided legal counsel in the lawsuit for some of the Medical Marijuana Act's supporters, put out this statement:

"It is unconscionable for Governor Brewer to continue to force very sick people to needlessly suffer by stripping them of the legal avenue through which to obtain their vital medicine," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project. "Today's ruling underscores the need for state officials to stop playing politics and implement the law as approved by a majority of Arizona voters so that thousands of patients can access the medicine their doctors believe is most effective for them."

Brewer may decide to keep up her ban on dispensaries, but as we noted back in May, she doesn't have the power to completely derail the law.

The DHS is still processing medical-marijuana registration cards for patients and caregivers -- if it didn't, a mere recommendation from a doctor would suffice to make it legal for patients to possess and grow pot. Under the law, qualified patients can possess up to two-and-a-half ounces of marijuana, plus the paraphernalia to use it, like pipes or bongs.

Patients can also grow up to 12 plants each, while caregivers can grow the same amount for up to five patients. Patients and caregivers can't grow, however, if a dispensary is located within 25 miles of their homes. So far, as mentioned, there are no dispensaries -- which means a lot of marijuana is now being grown legally under state law.

The lack of dispensaries has also meant the rise of compassion clubs, in which members make a donation and receive "free" marijuana in return.

Brewer shouldn't take too long to ponder this one, since in many ways it's a no-brainer:

Follow state law.

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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.