If the feds decide to pull up their jackboots and bust state employees for administering Arizona's medical-marijuana program, the director of the state Department of Health Services could be a target.
After all, Will Humble is the boss at DHS, the state agency that will be approving applications for dispensaries and inspecting marijuana grow-shops and inventory.
But Humble says he's not worried -- despite a February 16 letter by Acting Arizona U.S. Attorney Ann Scheel warning that state employees aren't "immune" from prosecution under federal drug laws.
"As long as they stay true to their job, I can't imagine a prosecutor would bring a case like that," Humble says.
Humble points out that the feds are well aware the state was ordered to implement the voter-approved program by a state judge. State employees who "never took a sample, never did anything untoward and kept their noses clean" will probably be safe, he says -- adding quickly that that's just his opinion.
The February 16 letter by Scheel (see below) was "much ado about not much," Humble says.
Scheel penned the letter in response to a January 13 letter by Governor Jan Brewer, which asked for guidance after the dismissal of Brewer's federal lawsuit over the state law. Brewer and state Attorney General Tom Horne had filed the lawsuit in U.S. District Court last May, hoping a judge would rule on whether the state law was legal or not. Brewer also told Humble not to accept applications for dispensaries until the matter was settled.
U.S. District Judge Susan Bolton slammed Horne's subordinate in public court before dismissing Brewer's lawsuit on January 4, saying that the state had failed to pick one side or another on the issue. "That's not how lawsuits work," she told former assistant Attorney General Lori Davis.
We hear that Brewer didn't share Scheel's February 16 letter with Horne, and that he only learned of it when reporters called this week. We asked Horne about it, who replied in an e-mail that he didn't know why Brewer's office withheld it.
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Either way, it seems odd that Brewer's office didn't release the letter to the public a month ago.
Still, in her January 13 letter Brewer finally sounds like the states'-rights champion she claims to be:
"The Department of Justice and the administration which you serve will have a lot of explaining to do to the citizens of our country, and State of Arizona employees in particular, if the State's reasonable and straightforward requests for clarity are again ignored, and the Department of Justice then ambushes State employees with prosecution or civil penalties for implementing the (Arizona Medical Marijuana Act) and licensing medical marijuana dispensaries," Brewer wrote.
Brewer reminded Scheel of her predecessor Dennis Burke's May letter to the state warning there was no "safe harbor" for anyone violating the federal Controlled Substances Act. After receiving the Burke letter, Brewer says she instructed Horne to "devise a legal strategy" in order to figure out how to best proceed with the medical-pot program.
Brewer conveniently leaves out the fact that in January of 2011, Horne had already suggested filing the federal lawsuit during a meeting with opponents of the law.
Days after writing the letter to Scheel, Maricopa County Superior Court Judge Richard Gama ordered Brewer to roll out the program in full, as voters intended.
Gama's ruling also tossed aside some of the rules from the program that had been developed by the DHS, such as the requirement that dispensary owners be state residents.
DHS staff came up with a new rules package in light of Gama's ruling and forwarded it last month to the state Attorney General's Office, Humble says. The AG's office will review it and is expected to forward the package to the state Secretary of State's Office. As soon as that happens, the new rules will be in effect.
Then, Humble will give his 30-day notice to dispensary applications. Once that green flag drops, would-be dispensary owners have two weeks to submit their plans under the new rules.
As decided early last year, the state will grant one dispensary license for each of the 100-plus arbitrarily drawn "Community Health Analysis Areas," or CHAAs.
When all the applications are in, the DHS will take 45 days to review them. On the 45th day, a random drawing will be held for the CHAAs that have more than one applicant.
No doubt, some of the applicants will want to open their doors to the state's 22,000-or-so pot patients as soon as possible. The state may see its first pot shops operating this summer.
When that happens, it'll be up to the feds to make the next move. Marijuana is still illegal under federal law. As Arizona clears the way for dispensaries to open, the feds continue to shutter stores in California. The Colorado U.S. Attorney ordered in January that dispensaries near schools need to be closed.
Arizona's law is different than California's in that it specifically authorizes retail sales of marijuana. That could work for or against the state depending on how the feds want to play it. On one hand, the selling of marijuana to bona fide patients will be in accordance with state law, and not the free-for-all seen in California. Federal authorities may appreciate that.
On the other hand, seeing dozens of state-authorized pot farms and stores may only antagonize the feds, as did the city of Oakland's plan last year to authorize cultivation facilities.
The choice that Americans make for the presidential election this year could also have an impact on Arizona's medical-pot law, which allows patients to buy and possess up to 2.5 ounces legally.
Depending on how federal authorities want to play it, the risk to state workers or anyone else involved in the pot program is either high or low. But it will always be present until federal marijuana laws are changed.
Humble says he won't force any DHS employees to work a pot detail -- he's asking for volunteers.
Now, only three or four DHS employees work on the medical-marijuana program. But that will change as the dispensaries come online. Humble will need more at least 15 or 20 extra workers to help oversee the pot stores and cultivation statewide, but "it's a purely voluntary deal so no one feels compelled to do it."
Informal polls of staff members suggest finding volunteers won't be a problem, he says. The agency will pull volunteers who work in other DHS division and pay them with the fees being collected from pot patients, caregivers and dispensary applicants.
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Other wrinkles that could complicate the rollout include the dozen-or-so lawsuits still floating out there related to the state's medical-pot law. One in particular is a concern to Humble: Gerald Gaines' Compassion First lawsuit, which resulted in Gama's order about the state's rules.
Compassion First recently filed an amendment to their suit, asking now that Gama toss the rule that requires dispensaries to hire a medical director.
Humble admits he doesn't have specific plans yet on what the agency will do if Gama orders an injunction on the state's new rules package because of Gaines' lawsuit. Click here for the letter from Brewer to Scheel.