His office made a new motion that basically takes the same side of the appeal by Rodney Christopher Jones, a medical-marijuana patient convicted and imprisoned in 2014 for possessing less than one-half gram of hashish.
It's a good sign for those who would like to see Jones win his appeal, but the threat to extracts isn't over yet.
About 180,000 patients and dozens of businesses across the state have been waiting anxiously since a bombshell, 2-1 decision in June by the Arizona Court of Appeals. The court ruled that the law doesn't provide immunity for patients in possession of extracts like hashish, hash oil, and other popular products sold in medical-marijuana dispensaries.
If the state Supreme Court doesn't accept the case for review and instead lets the appellate decision stand, much of the state's medical-marijuana program would face ruin. Profitable products would be taken from the shelves, decimating the dispensaries' bottom line. Moreover, some of the most ill patients in the program would find it impossible to obtain their medicine legally.
Last week, Brnovich asked the Arizona Supreme Court to reject a petition for review of the decision, revisiting several arguments for why the Arizona Medical Marijuana Act (AMMA) covers flower, or buds, but not extracts.
The latest filing strikes the previous motion from the court record and abandons the anti-review arguments. Instead, it states much more charitably that, "The State of Arizona recognizes that law enforcement and others would benefit from statewide clarity on the issues presented. Accordingly, the State provides notice that it withdraws its opposition to the Petition for Review in this case."
Brnovich, a lawyer, ex-Goldwater Institute activist, and former director of the state Department of Gaming, is up for re-election next month, facing Democrat January Contreras.
In recent days, Brnovich decided that it would be preferable to have the state Supreme Court review the issues surrounding the Jones appeal because the implications of the case are so far-reaching, explained Brnovich's spokesman, Ryan Anderson. The AG wants the decision to take the will of the voters into account, and also consider the needs of patients, he said.
"Mark recognizes there are people who get legitimate medicinal value out of medical extracts, including friends of friends," Anderson said. "The last thing Mark Brnovich wants to do is stand in the way of patients getting legitimate medicine."
The issue behind the Jones case has been bubbling up slowly since voters approved the law in 2010. Under Arizona's strict anti-cannabis laws, possession of the resin extracted from cannabis plants are considered a "narcotic" and can be charged as a stiffer felony count than plain, old marijuana buds.
Some prosecutors and judges argue that the 2010 law didn't account for the dread narcotic cannabis resin. Others claim the AMMA's text is plenty broad enough to cover extracts. They point out — as Maricopa County Superior Court Judge Katherine Cooper did in a 2014 ruling — that the act allows patients to possess marijuana "and any mixture or preparation thereof."
Cooper's ruling thwarted County Attorney Bill Montgomery's plans to make life difficult for patients in possession of extracts, but the unsettled case law meant that elected prosecutors in Arizona's 14 other counties could decide how they wanted to play it. Sheila Polk, the Yavapai County Attorney and one of the state's most notorious cannabis prohibitionists, has overseen the convictions of an unknown number of medical-marijuana cardholders for possession of extracts, including Jones in 2014.
As Phoenix New Times covered in an article earlier this month, records show that in 2017 her office prosecuted two medical-marijuana patients for extracts, and two citizens for alleged possession of cannabidiol (CBD). CBD is sold openly in Phoenix-area stores to the public, without any need for medical-marijuana cards. Her office told New Times it no longer prosecutes for CBD-only possession.
Now it's up to the state's seven-member "court of last resort" to decide first to review the case, then make a decision based on the law.
Robert Mandel is one of Jones' lawyers who filed the initial petition for review to the state Supreme Court. He said in early October that the case isn't just about his client, but also about all Arizona’s patients who need to have continued access to their medicine "irrespective of form and method of consumption."
Should the state Supreme Court accept the Jones appeal for review, Brnovich will have to take the next step — deciding what to say about extracts, and if he should oppose the idea that the law protects patients who possess them.
"I don't want to forecast what we're going to do yet," Anderson said.
Polk could press the court to reject the petition for review herself, Anderson acknowledged, or make arguments to the state Supreme Court if they take it up.