State Court Rules on Medicinal Marijuana Law, Orders Implementation

February 08, 2012

It appears that Arizona Governor Janet Brewer's attempt to block the imposition of Proposition 203 has come to an end. Last week, a Maricopa County judge dismissed the lawsuit that sought to block the portion of the law that allowed state-run marijuana dispensaries. According to a report by the Arizona Republic, Superior Court judge Richard Gama ruled that the state did not have any discretion in whether the voter-supported initiative could proceed.

The law, named the Arizona Medicinal Marijuana Act (AMMA) legalizes marijuana use for people with chronic or debilitating diseases. It was approved by voters by just 4,341 votes out of more than 1.67 million votes counted. According to a USA Today report, 18,000 Arizonans may legally use marijuana to manage a host of debilitating conditions, including cancer and chronic pain. 15,000 of them have requested permission from the state to grow it while the legal issues are resolved.

Judge Gama wrote that even though the state was between the proverbial rock and a hard place regarding potential prosecution under federal law, the law required that its provisions be enacted within 120 days of the governor's signature. Since it had not been done, the state had no choice but to follow the law. He also struck down several restrictions limiting who could be dispensary operators, such as requirements that operators be state residents with no history of bankruptcy or "government debts" like unpaid taxes or outstanding parking tickets.

The recent decision comes on the heels of a federal court ruling dismissing the state's lawsuit seeking clarification on whether state employees could be prosecuted under the federal Controlled Substances Act (CSA) while following the AMMA. Arizona's attorney general filed suit last summer against the Justice Department seeking a declaratory judgment on whether federal law prevented state employees from "implementing and overseeing" the administration of the AMMA . The suit was ostensibly based on a letter from the U.S. Attorney for the District of Arizona to the state's health administrator indicating that "growing, distributing and possessing marijuana violates federal law no matter what state law permits," and that the U.S. Attorney's Office would continue to prosecute violations.

Critics believe that Brewer's lawsuits were merely pretext, and that she really sought a legal basis to defeat the measure. (She opposed the measure approved by voters in November.) Also a report by newser.com noted that she lambasted the federal court on its stance on Arizona's immigration law, but readily used it to delay implementation of the state's marijuana law.

In dismissing the case, Judge Susan Bolton noted that the U.S. Attorney's letter did not present a specific, credible warning that it would prosecute state employees. In fact, the letter did not include state employees its warning. The U.S. attorney in Arizona has stated publicly that he does not intend to target employees who are implementing the program in compliance with state law.

As many as 126 dispensaries may be established under the new law. The Arizona Republic reports that licenses will likely be awarded through a random lottery. However, prospective operators with at least $150,000 of startup capital could be considered outright.

Governor Brewer had directed state health officials to begin implementing the dispensary part of the law pending resolution of the latest lawsuit, so license applications could be available in the coming months. The Health Department still has to revise and publish rules governing how the dispensaries may be run, but officials believe that licenses could be awarded this summer.

Article provided by Law Offices of Howard A. Snader, LLC
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