Governor Jan Brewer Says Feds' New Letter on Medical Pot Proves She Took "Proper Course of Action" in Derailing Dispensary Program

Governor Jan Brewer believes that a "clarification" by the feds on medical-marijuana programs proves she took the "proper course of action" in halting the voter-approved dispensary program.

Brewer and state Attorney General Tom Horne filed a declaratory judgment in federal court in May, and also instructed the Department of Health Services to reject dispensary applications. See the complete text of their news release below.

Tom Horne also e-mailed us back after we sought comment from him on the June 30 letter to U.S. Attorneys by Deputy U.S. Attorney General James Cole.


Horne wrote that the feds "knew of a broad concern about whether government employees facilitating distribution were at risk, and deliberately said nothing to reassure us. Dispensaries clearly are at risk."

He added that "nothing has changed" in terms of the state's position that it must seek clarification from the federal court system before fully implementing the Arizona Medical Marijuana Act.

As we mentioned in an another post today, some representatives of the dispensary industry acknowledge that Cole's letter presents another hurdle that will delay the full roll-out of the program as voters intended it. Yet problems for the dispensary industry also means a boost for smaller-scale collectives and medical-marijuana clubs. Horne declined to comment on that part of the deal.


Joe Yuhas of the Arizona Medical Marijuana Association, whose members led Proposition 203 to success in November, tells us that he believes Cole's letter still preserves the "status quo."

"I continue to have great confidence in the fact that the federal government has never taken action against a dispensary or a cultivation facility ... where the participants have abided by the state laws," Yuhas says.

Yet he admits the Cole letter also means "it's clear there will be additional delays."

As more caregivers and patients keep getting registered with the state, co-ops and clubs will definitely became more popular, he says -- but he doesn't necessarily see that as a good thing.

"I hope policymakers will recognize the foolishness of implementing this law in a piecemeal fashion," he says.

Yuhas mentions something we'd noticed, too: That the timing of Cole's letter -- released selectively to the public and just prior to a major holiday weekend -- was no coincidence. The suspicious timing "illustrates the internal debate" in Washington between those who favor states' rights versus federal control on the issue of medical marijuana, he says.

Brewer's news release follows:

Statement from Governor Brewer and Attorney General Horne

Medical Marijuana

Governor Jan Brewer and Attorney General Tom Horne responded Friday to a memo intended to offer guidance to federal prosecutors regarding state medical marijuana programs.

"I'm disappointed in this latest memorandum from the U.S. Department of Justice, which offers little more than continued confusion and doublespeak regarding the legality of locally-authorized medical marijuana programs in Arizona and other states," said Governor Jan Brewer. "If this memo was an attempt at clarity, it failed.

"Serious questions remain," Governor Brewer continued. "Might state-licensed medical marijuana dispensaries be targeted for federal prosecution? Are state employees at risk if they license dispensaries according to state law? In light of these and other questions, the proper course of action was the one taken by the state: to place the dispensary process on-hold while we seek court guidance regarding the legality of the overall program."

The Arizona Department of Health Services had been implementing provisions of the Arizona Medical Marijuana Act up until the agency received a letter, dated May 2, 2011, from U.S. Attorney Dennis Burke. That letter cast serious doubt on the legality of Arizona's medical marijuana program and the potential culpability of state employees who administer the program. Governor Brewer and Attorney General Horne responded by calling a "time out" on the state's issuance of licenses to marijuana dispensaries, and filed a declaratory judgment asking a federal court to rule on the legality of the overall program.

That legality remains very much in question. This latest memo from Deputy U.S. Attorney General James Cole, dated June 29, 2011, notes that "persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law." The memo never addresses the potential legal culpability of state employees who administer medical marijuana programs according to state law.

"The federal government knew there was broad concern about whether 'facilitate' sale was a term that could endanger state employees, and they chose to remain silent," said Attorney General Horne. "This letter represents a 180-degree turn from the Ogden memo, which said there should be low priority for those in clear and unambiguous compliance with state law, and 'low priority' was interpreted to mean they would not prosecute. Now they say they will prosecute those involved in distributing or 'facilitating' distribution, regardless of whether or not they are in compliance with state law. A federal court needs to resolve this conflict between federal and state law, as is traditionally one of the roles of the federal judiciary."

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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.

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