Medical Marijuana Not a State Crime on College Campuses, AZ Supreme Court RulesEXPAND
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Medical Marijuana Not a State Crime on College Campuses, AZ Supreme Court Rules

The Arizona Supreme Court, in a unanimous opinion, has shot down a controversial law criminalizing medical marijuana on college campuses.

That doesn't mean students with cannabis cards can start toking up in their dorm room with no potential consequences. And they definitely can't toke up in the common areas. Arizona colleges can and will continue to prohibit bringing marijuana on campus.

But cannabis possession on campus by valid cardholders can no longer be called a state crime.

The ruling (see below for full text) is not only a victory for Andre Maestas, the Arizona State University student whose conviction for possession of marijuana has now been vacated. It's also a victory for the voter-approved, 2010 Arizona Medical Marijuana Act and the 1998 Voter Protection Act.

Tom Dean, who specializes in cannabis law and served as Maestas' attorney, said the ruling is significant because it turned over a law that had been supported by nearly all 90 state legislators, as well as Governor Doug Ducey and elected law enforcement officials like Maricopa County Attorney Bill Montgomery.

"It was kind of an amazing win," Dean said. "The judiciary stood up and was not intimidated ... It's great to see the court fulfilling its purpose in such a brave and courageous way."

The case began in March 2015, when Maestas, then 19, sat down on the road in a small intersection near his dorm on ASU's Tempe campus. Cops who questioned him claimed he was disoriented and searched his wallet, finding his medical marijuana card. Maestas, who has chronic back pain, admitted he had some pot in his dorm room. Police found about half of a gram's worth of bud.

Three months later, Montgomery's office charged Maestas with felony marijuana possession based on a 2012 law passed by a nearly unanimous state Legislature and signed by former Governor Jan Brewer.

That law, pushed by university officials and cannabis prohibitionists, re-felonized marijuana on college campuses for medical patients. Critics said the law made a farce of the AMMA and 1998 Voter Protection Act, which prohibits lawmakers from changing voter-approved measures unless they can muster a three-fourths super-majority, and even then the change must further the law's purpose.

The Arizona Court of Appeals agreed with the critics in an April 2017 ruling. The ruling announced today by the state's High Court concurs with the arguments of the appellate justices – which are mainly that state leaders had no legitimate right to do what they did.

The state claimed that the Legislature didn't really "amend" the 2010 medical marijuana act, arguing basically that it merely stated what the 2010 law implies. Supporters of criminalizing cannabis for patients on campus noted that federal law requires colleges that receive federal funding to implement a policy that bans controlled substances as they're defined under U.S. law. Marijuana is still illegal under federal law, state lawyers argued, so allowing marijuana on campus threatens federal funds.

The Arizona Supreme Court justices acknowledged that may be true. But they emphasized that there's no reason to believe that federal funds would be threatened by not prosecuting the patients.

"A university does not have to guarantee prosecution for violations of its program. And it can refer violations of its program to the federal prosecutor," the opinion states. "The State has not shown that a university would lose (or has lost) federal funding if a state prosecutor did not prosecute violations of the university’s program."

That means the 2012 college-campus ban can't be condoned, they wrote.

Cynthia Jewett, ASU's general counsel, explained after the Appeals Court ruling that all Arizona public university students must follow the Arizona Board of Regents' Student Code of Conduct, in addition to following university policy. Dorm room residents must also abide to their lease terms.

"Our student affairs professionals apply the provisions of our policies and license agreement to the particular facts of the matter," Jewett said. "Outcomes range from a warning up to removal from the residential hall."

Patients are still prohibited under the AMMA from smoking in a public place on campus. Dean agreed that patients caught smoking on a college campus or any other "public place" could be subject to arrest and prosecution. State courts have previously ruled that if patients commit actions that violate the AMMA, they lose their protections as patients under the law.

Maestas, who graduated last year with a degree in digital culture, could not be reached for comment.

Dean said the ASU grad "deserves a lot of credit" for the outcome.

Maestas was just a freshman when he was charged with felony possession, but decided to take a risk and fight the charge instead of opting for a deferred prosecution and the TASC drug treatment program, Dean said.

Montgomery's office later bumped the felony charge down to a misdemeanor, something that's standard for first-time offenders. But Maestas didn't know it definitely would be reduced, Dean noted.

"A guy that young, to stand up on principle when he was given an easy way out – he had the courage to say 'no, this isn't right,'" Dean said.

UPDATE: The Arizona Board of Regents sent this comment about the ruling after publication:

The Arizona Board of Regents (ABOR) policy prohibits the unauthorized use, possession or distribution, or possession for purposes of distribution of any controlled substance or illegal drug on university campuses or at a university-sponsored activity.

As well, ABOR policy requires each university and the system office to be a drug-free workplace, as required by the federal Drug-Free Workplace Act. Further, under the federal Drug-Free Workplace Act and Drug Free Schools and Communities Act, “no institution of higher education shall be eligible to receive funds or any other form of financial assistance under any federal program, including participation in any federally funded or guaranteed student loan program, unless it has adopted and has implemented a program to prevent the use of illicit drugs and abuse of alcohol by students and employees.”

Further, the federal Controlled Substances Act prohibits the unauthorized possession, use or production of marijuana, even for medical use. While the Arizona Supreme Court today has ruled that medical marijuana patients are not subject to criminal arrest if they have their drug on college and university campuses, the universities and the board may enforce administrative policies prohibiting drugs on campus.

Arizona State University, Northern Arizona University and The University of Arizona have all indicated they will continue to enforce board policy and applicable federal laws.

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