Arizona sues DOJ over medical marijuana

Arizona sues DOJ over medical marijuana

As every state with legal medical marijuana on the books now seems to have a letter from a U.S. Attorney saying, ‘not so fast’, Arizona Governor Jan Brewer has taken the whole thing one step beyond by filing suit against the United States Department of Justice in the hope of getting a judicial ruling that clarifies whether Arizona has the right to implement its new medical marijuana laws.


Can we or can’t we?

That seems to be the point of the lawsuit that Arizona Attorney General Tom Horne has just filed suit against the Department of Justice, seeking a federal court judgment on whether state officials can implement the new Arizona Medical Marijuana Act, which voters approved last November. The law decriminalizes distribution, possession and use of marijuana for medical purposes in certain specific circumstances.

The trouble is, the Arizona law, like those passed in several other states recently, puts Arizona in a situation that is ambiguous at best, since marijuana remains illegal under federal law, as the U.S. Attorney for Arizona, Dennis Burke, has reminded state officials.

Horne said the Arizona suit was intended get a court ruling “that makes it clear what direction we can safely go — either to implement the law or that we cannot,” The Associated Press reported.

In directing Horne to sue, Gov. Jan Brewer said: “For the state employees charged with administering the medical marijuana program or the Arizonans who intend to participate as consumers, it’s important that we receive court guidance as to whether they are at risk for federal prosecution,”according to a report in The Cypress Times. “Arizonans deserve clarity on an issue with such dire legal implications.”

Not everyone in the medical marijuana community is happy with Brewer’s decision to sue the feds, seeing it as unnecessary and possibly as an attempt to to get a ruling that would stop Arizona’s medical marijuana trade in its tracks.


The move to sue has been met with scrutiny from medical marijuana advocates like the Arizona Medical Marijuana Association.

Joe Yuhas, a spokesman for the association, told the Arizona Daily Sun that the lawsuit “a waste of taxpayer money,” pointing out that the federal government has never attempted to shut down operations in the 16 other states that allow for medical marijuana use.

The Arizona Republic puts it bluntly, saying the move is an attempt to thwart the will of the voters, and in fact, pending the outcome of the litigation, Arizona has halted implementation of many parts of the recently-passed state law.

The motion for declaratory judgment, to be filed in U.S. District Court in Phoenix, pits Brewer and two state agency directors against voters and patients who supported Proposition 203, as well as potential dispensary owners who could face federal prosecution.

It also names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants, and will argue that their policies have spawned uncertainty and confusion.

Brewer and Attorney General Tom Horne say the suit was prompted by a May 2 letter from Burke to state Health Director Will Humble, warning that prospective pot growers and sellers could be prosecuted under federal drug-trafficking laws.

What is indisputable is that the move by Arizona is a direct response to letters written by DOJ attorneys to Colorado and other states.


In fact, several of the U.S. attorneys in the 16 states seem to have taken the stance that while a user of medical marijuana might be viewed compassionately if she or he grew marijuana for personal use, commercial growers and retailers could still be prosecuted.

All of this came to a head when Colorado asked for clarification when the state saw its number of growers increase exponentially and perceived what it saw as a sharp and unjustified increase in patients. As it now stands, the threats are having varying degrees of effectiveness. Rhode Island has put their program on indefinite hold.

The Department of Justice must uphold the law. That much is a given, and while the DOJ might decide not to pursue a law that it deems unconstitutional, such as it did earlier with the announcement that it would no longer defend the Defense of Marriage Act, it is a little more difficult to make such a call on drug usage, regardless of the reason.

At this point, it seems a waste of time to prosecute for medical marijuana. While Congress might not want to pursue the full legalization of marijuana usage, it seems silly and cruel not to try to ease suffering where possible. It is callous to ignore people’s pain, and to aggravate it further by causing stress over worry that something legal on a state level remains a federally prosecutable offense is just weirdly pitiless.

In Colorado it is no secret that Attorney General John Suthers is no fan of medical marijuana.

From National Public Radio, which recently published a wrap-up of DOJ’s role in state medical marijuana initiatives.

It’s a problem familiar to Colorado’s Attorney General John Suthers. He says Colorado’s more than 800 dispensaries are probably not what the federal government had in mind when it issued the Ogden memo.

“We’ve had just a plethora of retail dispensaries develop. We’ve got grow operations; we’re now at 125,000 patients,” he says. “And it’s a joke.”

That’s why he asked his U.S. attorney for advice. Suthers guesses that the letters from other U.S. attorneys are an attempt to prevent more states from becoming like Colorado.

Mike Saccone, spokesperson for Suthers’ office, said that any ruling in the Arizona case would be unlikely to affect Colorado. “Arizona is in the 9th Circuit. Colorado is in the 10th. A ruling in the 9th could be persuasive to a judge in the 10th Circuit, but it would not provide precedent unless it made it to the U.S. Supreme Court,” Saccone told The Colorado Independent.

He then added by email, after discussing the case with Suthers: “We would welcome any clarity the suit could bring on the issue of medical marijuana. We do not have any plans at this time to file a similar suit.”

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About the Author

Scot Kersgaard

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.

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