Governor Brewer to Ponder Medical Marijuana Lawsuit Ruling While Keeping Her Ban on Dispensaries; Supporters of Law Praise Ruling

Categories: Medical Weed

brewermug.jpg
Arizona Governor Jan Brewer

Governor Jan Brewer and her legal counsel will study today's dismissal of her lawsuit against the medical marijuana law while keeping a ban on dispensaries, a spokesman says.

Brewer, with the help of state Attorney General Tom Horne, filed the federal complaint back in May, claiming a letter by a former Arizona U.S. Attorney prompted the action. The state officials had asked for a declaratory judgment on whether the voter-approved Medical Marijuana Act was legal, complaining that state workers could be at risk of prosecution if they administer a medical-marijuana program because pot's illegal under federal law.

It was a thinly disguised attack on a state law that they didn't like. It also exposed Brewer as a hypocrite on the issue of states' rights. Her attack on medical marijuana took place even as she and Horne spent taxpayer dollars defending two state anti-illegal-immigrant laws that the federal government claims are unconstitutional. 

As a later New Times story exposed, Horne had considered filing the complaint as early as January after being lobbied to do so by the Medical Marijuana Act's primary opponent, Carolyn Short of Keep AZ Drug Free. Both Brewer and Horne had publicly opposed Prop 203 before voters passed it.

At the same time Brewer filed the lawsuit, she ordered the state Department of Health Services to reject applications for the medical-marijuana dispensaries authorized by voters.

Despite U.S. District Judge Susan Bolton's ruling today tossing out the lawsuit, "nothing has changed" in regards to the governor's stance on dispensaries, says Brewer's spokesman, Matt Benson.

U.S. District Judge Susan Bolton

Bolton's ruling states that Brewer's lawsuit just isn't ripe. A "generalized risk of prosecution" isn't good enough to satisfy the legal requirement of an active controversy for such a lawsuit, Bolton wrote.

The judge had argued in a recent court hearing that the state still had not taken a side for or against the voter-approved law, something she said was necessary for the lawsuit to proceed. However, in her new ruling, Bolton says that even if Brewer had taken a stance, her complaint is still unripe because it's unclear whether or not state employees engaged in implementing the program would be at risk.

Former U.S. Attorney Dennis Burke's May letter is "silent as to state employees," Bolton wrote. (Burke followed up his letter with statements to the press that specifically precluded the notion of busting state employees for following state law.)

Brewer and Horne "have not shown that any action against state employees in this state is imminent or even threatened," Bolton wrote. Nor have the Arizona officials shown that state workers have ever been prosecuted in any other states for medical-pot "licensing schemes."

Benson, speaking for the governor, tells New Times that, "It's unfortunate in this incident that the federal court has basically said we have to wait for a state employee to be prosecuted or face imminent prosecution before the state's lawsuit will be heard. That's an untenable position for state employees who are just doing their jobs."

Brewer's position, then, assumes a truly silly idea: That Will Humble, director of the state DHS and his underlings will be prosecuted by the feds for following state law.

This is a straw-man argument, though, apparently intended as a tactic in Brewer's fight against the pot law. Even if Newt Gingrich were elected president, a guy who once proposed that drug dealers be executed, it seems reasonable to conclude that state workers would receive plenty of warning about potential prosecution before actually being rounded up and cuffed. Bolton's right -- there's no threat of imminent prosecution.

Meanwhile, the Arizona Medical Marijuana Association, whose key members were the folks who put Prop 203 on the ballot last year, praised Bolton's ruling in a written statement:


We are obviously pleased with Judge Bolton's decision. Our hope is that our state leaders will stop wasting tax dollars with appeals and further litigation, and respect the will of Arizona voters who on three separate occasions have approved Medical Marijuana Initiatives at the ballot box. It's time to implement the Arizona Medical Marijuana Act in its entirety, and allow patients to secure their medicine in a safe, reliable, and regulated fashion. Further delays simply allow 16,000 patients who have already secured their medical marijuana ID cards to grow their own marijuana, rather than obtain it from a regulated dispensary.


The American Civil Liberties Union, which provided legal counsel in the lawsuit for some of the Medical Marijuana Act's supporters, put out this statement:



"It is unconscionable for Governor Brewer to continue to force very sick people to needlessly suffer by stripping them of the legal avenue through which to obtain their vital medicine," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project. "Today's ruling underscores the need for state officials to stop playing politics and implement the law as approved by a majority of Arizona voters so that thousands of patients can access the medicine their doctors believe is most effective for them."


Brewer may decide to keep up her ban on dispensaries, but as we noted back in May, she doesn't have the power to completely derail the law.

The DHS is still processing medical-marijuana registration cards for patients and caregivers -- if it didn't, a mere recommendation from a doctor would suffice to make it legal for patients to possess and grow pot. Under the law, qualified patients can possess up to two-and-a-half ounces of marijuana, plus the paraphernalia to use it, like pipes or bongs.

Patients can also grow up to 12 plants each, while caregivers can grow the same amount for up to five patients. Patients and caregivers can't grow, however, if a dispensary is located within 25 miles of their homes. So far, as mentioned, there are no dispensaries -- which means a lot of marijuana is now being grown legally under state law.

The lack of dispensaries has also meant the rise of compassion clubs, in which members make a donation and receive "free" marijuana in return.

Brewer shouldn't take too long to ponder this one, since in many ways it's a no-brainer:

Follow state law.

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40 comments
AverageJoe
AverageJoe

Sorry about the size of the margins between paragraphs.

AverageJoe
AverageJoe

It is baffling to me why marijuana is illegal while alcohol is legal.
Marijuana by fact is a much safer drug than alcohol. If anything
marijuana should be legalized and alcohol should be made illegal. I
believe that hard core drugs like cocain, meth, heroin, etc, should all
stay
illegal, but marijuana is not a "hard core" drug. Alcohol is much worse
than
marijuana and we have legalized it. Here's some facts to support my
statement.

There are thousands of alcohol overdose deaths each year, yet there has
never been a marijuana overdose death in history.

-Excessive alcohol
consumption is the third leading preventable cause of death in the United States
and is associated with multiple adverse health consequences, including liver
cirrhosis, various cancers, unintentional injuries, and violence.

-Almost half of all traffic fatalities are alcohol related.

(20
percent of alcohol-related traffic deaths involve blood alcohol concentration
levels below .10 percent.)

-In 1991, a subway motorman was drinking just
before his shift and derailed a train carrying hundreds of passengers, kill five
and injuring more than two hundred.

-If an alcoholic suddenly withdraws
from alcohol, he or she may suffer delirium tremens. D.T.s sometimes end in
death.

-Many people who apparently die from overdoses of sleeping pills
(barbiturates), actually die from a combination of alcohol and the medication.

-One quarter of all emergency room admissions, one-third of all
suicides, and more than half of all homicides and incidents of domestic violence
are alcohol related.

-Between 48 and 64 percent of people who die in
fires have blood alcohol levels indicating intoxication.

-Alcohol is
abused by some 14 million Americans and contributes to the deaths of 100,000
each year.

-According to the National Highway Traffic Safety
Administration, 65 percent of fatal drunk-driving deaths involve drivers whose
blood alcohol concentration (BAC) is .15 or higher.

-The risk of
hemorrhagic stroke is three times higher among heavy drinkers.

-Very
large amounts of alcohol (such as a quart if drunk in five to thirty minutes)
may occasionally cause death by anesthetizing the brain center that controls
breathing.

-About 20 percent of those people who commit suicide are
alcohol abusers, according to the National Mental Health Association.

-About 20 percent of suicide victims are alcoholics.

-Alcohol is
clearly the drug with the most evidence to support a direct
intoxication-violence relationship. Cannabis reduces likelihood of violence
during intoxication... Source: Hoaken, Peter N.S., Sherry H. Stewart. Journal of
Addictive Behaviors. 28, pages 1533-1554. Drugs of abuse and the elicitation of
human aggressive behavior. Dept. of Psychology, University of Western Ontario.
Dept. of of Psychiatry, Dalhousie University.

There are some physical
health risks, particularly the possibility of damage to the airways in cannabis
smokers. Overall, by comparison with other drugs used mainly for 'recreational'
purposes, cannabis could be rated to be a relatively safe drug. Source: Iversen,
Leslie. Current Opinion in Pharmacology. Volume 5, Issue 1, February 2005, Pages
69-72. Long-term effects of exposure to cannabis. University of Oxford,
Department of Pharmacology.

The latest and most comprehensive research
on marijuana has concluded that it does not contribute to the development of
lung cancer. Source:
http://www.washingtonpost.com/......

There has never been a documented case of lung cancer in a
marijuana-only smoker, and recent studies find that marijuana use is not
associated with any type of cancer. The same cannot be said for alcohol, which
has been found to contribute to a variety of long-term negative health effects,
including cancers and cirrhosis of the liver.

Albert
Albert

Honestly... I think we need a tougher voter protection act... One that removes the immunity of these politicians, and one that adds a lengthy prison sentence for breaking or violating voter enacted legislation. And I'm talking felony type charge.   2009 was the last time the legislature was told by the State Supreme Court that they didn't have the power to change, or  alter a voter initiative. I know not every legislator has been around that long, but most of them were, and know not to touch OUR LAWS.. ( This is the VOTER PROTECTION ACT... a previous group of legislators didn't think the people of Arizona knew how to pass a law, and overturned their vote. We keep asking them to take off our handcuffs, but for some strange reason..... the VOTERS still don't trust us.)   They should be made to take a class.. when elected on how not to change something we the voters approve.   As it stands right now, all it says is that they have to pay a fine for breaking, or violating voter approved laws. Its time to get tough. We the citizens of Arizona voted and approved this legislation, and you don't have a choice. It is the law...  Don't like it,,,, get out of Arizona politics, or move to another state.

Leaf Star
Leaf Star

Prop. was put on the ballot, we voted FOR it, now Gov. Brewer:  GET OUT OF OUR WAY!!  We have Dispensaries to get licensed and opened NOW!

guest
guest

As they will soon find out, they might have created a much bigger headache for themselves. Much to their chagrin.
So, if they do now implement the rest of 203 as they should have from the get go, do they now send the Cops in and arrest those who are growing their own cannabis?
 How do they revoke that?
Idiotic leadership creating more of a hassle than needs to be.

Montebjorn
Montebjorn

Everyone makes it sound like your throw a few seeds in the ground and poof you have MMJ.Its very expensive and time consuming.

Serious answers only, please
Serious answers only, please

Anyone out there with sufficient legal expertise to provide with me a solid answer? I would appreciate it more than you can imagine! I could easily qualify for a medical marijuana card, but fear the stress and expense of possible prosecution. Not only that, I'm a habitual non-offender who sincerely believes in complying with laws, though this one is a Rubix Cube of a law if ever there was one. I do not use marijuana, and will not use medical marijuana as long as its legality is in question. This, despite well-substantiated illnesses and brutal suffering that can only be partially alleviated with legal prescription medications that inflict such untenable side effects I seldom take them. So, can anyone answer this question with certainty? If I were to obtain a medical marijuana card, and then responsibly grow marijuana for my own use in the allowable amounts in full accordance with the Arizona Medical Marijuana law, is there any way I could ever face state or federal prosecution? Would I be breaking any law/s? Because I understand marijuana tends to help those with my conditions, and I need all the help I can get, but I'm currently afraid to see if that bud's for me.

guest
guest

I feel for you as to your conflict with this one. I too went back and forth with my decision.
We must not allow fear to dictate how we proceed with our lives, especially if pain is involved.

If you suffer from pain this is a truly wonderful herb to extinguish that pain. It is here for a reason. It has NONE of the detrimental side effects of the synthetics that ARE pushed upon us.

As far as the legal issues. This is where the quandry arises. As per State statute right now, you cannot be prosecuted so long as you abide by the ARS code and rules pertaining to said use.

Now, per Federal you are in violation of their far reaching and hypocritical laws. (the U.S. gov't. issues Cannabis to (4) four people still) They however have not gone after any individuals as of yet, in any of the States that it has been enacted.

You are the only one who can decide what is best for YOU. Not the Government.

This plant has been growing and used by mankind for thousands of years. It is of benefit to the human race. Like all in this life it is about responsibility and the application of intellect in all that we do.

Please read up on it as much as possible, both sides, and then make your decision.

Try as they might to keep us shackled by fear, we are shaking off that fear, seeing through their lies and propaganda one individual at a time.
 
Good luck to you, I do hope that I have been able to provide some insight for you.

 

Serious answers only, please
Serious answers only, please

Thank you for your thoughtful answer. It means a great deal to me, and has provided much food for thought. Bless you!

Chas Holman
Chas Holman

This woman... Jan Brewer.. She has proven to be all about big government and has shown nothing but contempt for the voter,

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joeyrockx
joeyrockx

The best part is she bent over and asked for it. The people have spoken, pull your pants up and stop embarrassing the state you idiot.

James
James

Actually if she doesn't get her way, it's a bigger problem for patients.  The dispensary exclusion rule is violently anti-patient, since patients and caregivers who cultivate NOW will LOSE THE RIGHT when dispensaries start up.  That's a huge problem, from an equal protection standpoint.  (Patient has a right, someone else gets that right, at the cost of the right of the patient.)  The exclusion zone for cultivation is not ok, and there should be no dispensaries within 25 miles of a cultivating patient, not the other way around.

Albert
Albert

Its all about the money with the dispensaries....Link to reasoning behind 25 mile HALO??? 
http://stash.norml.org/mpps-an...  It isn't equal protection, and not fair practice. And like I said below... in the huge post. You can't force people to use a business, and you cant force the people of Arizona into purchasing healthcare, or health care related items. And I think there might be another statute that prohibits direct purchase requirements of any products in Arizona.   

Albert
Albert

Yeah, it really is unfair to patients who might be living within the 25mile zone, but this is my thought... Humble doesn't really have the authority granted by prop. 203 for dispensary placement. His( CHAA??) areas are not anything that applies to the placement of business's. Legally, you can't tell a person where they can setup, except for the listed prohibitions that the law allows for bans..... near a schools, parks, and so fourth.  He and his group of workers have turned a 30 page law into 90 pages of rules. The law is clear, according to rule making. They have to be exempted from the rule making process, and they must be a listed agency for that exception. Now the the health department isn't one of those exempted agencies. But, prop. 203 gave the health department a 1 year exemption, so that might stick, but here is where it gets tricky. The law says that a state agency who go above their authority, and not developing the rules with the intent of the law are INVALID. And it doesn't matter if its a year after, or when ever.. the rules not made in conformance to the law are invalid. So we have an agency, so has violated the rule making authority, which makes this whole issue even more of a clusterf*ck. It makes me laugh, because I remember people saying when they were coming up with the rules, and people were saying... Humble just follow the law... don't try to add things that were not present in prop. 203, don't try to make it more difficult, and so forth, and they still decided to add a ton of restrictions and hurdles for patients, care givers, would be dispensary owners.  The only answer is to allow people to continue growing themselves, or using a care giver. The whole 25 mile halo was already shown to be purely a financial benefit for those who could get one of permits. They passed HB2541, and HB2585 which both violate Arizona Law. The legislature isn't allowed to remove or change directly, or even indirectly any legislation, that may change a VOTER ENACTED LEGISLATION.... unless they have 3/4 of the legislature and it furthers the purpose, or intent of the original law. And recently the gov, and the legislature haven't been doing to well with following the law, and things connected to voter enacted legislation. I have seen the show on Discovery.. Weed Wars.. what I've been told is that their prices are way to high, and it turns into someone making a lot of money. So really these non profits business's become a very profitable entities. So if you take a "non profit" in a state that allows people to grow their of medicine, and use a dispensary system... And they still make a huge amounts of money.  People should have a choice to use  a dispensary or grow. And I thought anytime you force  anyone to use a particular business.. it was considered racketeering?? And another thing, didn't' we pass another law along with prop. 203 saying that we were not going to be forced into healthcare, or buying health care insurance.. so that seems that the voters don't want to be forced into any health care related items. And of course, the Feds... they are coming down and after all states dispensaries, so why even try to get into a field, or into the position of losing everything you own? This president has said no to dispensaries, and that probably won't change, and if anyone else gets in it would just get even worse as far a "commerce issue". 

RA Monti
RA Monti

Brewer also voiced no concerns about state employees who processed applications from patients and sent out permits to approved patients. Prop 203 allows patients to grow their own if they live more than 25 miles from a dispensary. Since there are no dispensaries as yet...these  supposedly vulnerable state employees are giving de facto approval to grow small amounts for personal use.

James
James

Just wait till those 18000 patients find out that their little garden becomes a crime again the minute a dispensary opens up 25 MILES from their home.  There will be WAY more lawsuits and injunctions to stop dispensaries, coming from the PATIENTS who have a right that they don't want taken away.  The implication is, if you want to keep cultivating your medicine as you do now, you will have to move (where?  It's not specified) or kill your plants and destroy your equipment.  Not ok.

Seedy Ward
Seedy Ward

My impression is that the state issues these cards (licenses) with cultivation rights for a specified period -- one year. The cultivation rights don't end when a dispensary opens nearby. The card just won't be renewed with cultivation rights the following year.

That reminds me -- I need to file for another card.

teknik1200
teknik1200

Spending $200-400 a week for medicine is insane.

Rob
Rob

HOLY Cow, Ray....what decade is that picture of Brewer from?

Ray Stern
Ray Stern

I don't know, but I'm pretty sure it's not her high-school photo...

Gerry_C
Gerry_C

1870's?

Rob
Rob

I think you're right Gerry.
I'd read she'd had some experience in her earlier years that introduced her to the prison industry and was crucial to her beliefs today.

This must have been snapped during her years at Yuma Territorial Prison.

Seedy Ward
Seedy Ward

Dispensaries or no dispensaries, Brewer et al. are stuck with the AzMMA. The DHS released the latest stats today. here are almost 18,000 card carrying patients and over 1000 caregiver (cultivator) licenses issued so far. 

Have a big headache, Brewer! You deserve one. No, you deserve many, many headaches.

shadeaux14
shadeaux14

If this is causing her headaches, she should apply for a card ; )

teknik1200
teknik1200

You do not need to be a caregiver to have cultivation rights, anyone with a card can apply for cultivation rights.

If you are a caregiver you can have up to five patients and grow cannabis for them. While a card holder can grow 12 plants (which would typically be 4 flowering plans) a caregiver may be able to have as many as 72.

James
James

If dispensaries start being licensed NOW, there are going to be suits from those 1000 caregivers and a few thousand of those 18000 patients who don't want their rights to cultivate taken away NOW by dispensary agents!  The exclusion zone rule has to end.  There's an equal protection problem.

Ceo Azcs
Ceo Azcs

In her order Bolton said the state could file an amended complaint, but would have to
satisfy two key problems: Federal prosecutors have not threatened to
prosecute state or municipal employees for following the law; and the
state can't show that any harm will come absent a court ruling."

"No harm" isn't the first rule of medicine "do no harm"

isn't "harm" a required element of corpus delicti, something required in every prosecution of a "crime"?

This statement would seem to suggest that judge Bolton perceives Arizona's medical marijuana act harmless "absent a court ruling".
Which is the truth, there is NO corpus delicti in a marijuana case at any level of the courts, from municipal to the SCOTUS the rules remain the same.

“In every prosecution for crime it is necessary to establish the “corpus delecti”, i.e., the body or elements of the crime.” People v. Lopez, 62 Ca.Rptr. 47, 254 C.A.2d 185

Guest
Guest

Read the opinion, which is posted in the other article. It is very well written and clear. The "harm" is an element of the standing doctrine, which is to say that (among other things) if the state suffers no harm from the court refusing to hear the case, then the court should refuse to hear the case.  I'm oversimplifying, so I urge you to read the whole thing.

Albert
Albert

The harm would come in the form of patients having to spend even more money to get their medicine, or not even enough to purchase any medicine from a dispensary.  

Royalphoenix2
Royalphoenix2

Jan has a problem with the law, unless she is getting off on DUI. peace

James
James

That 25-mile thing is a problem.  Once a patient starts her garden, why does a right being given to a dispensary agent 25 miles away take away her existing right?  There's an equal protection issue here.  The patient's garden should exclude the dispensary and force them to locate 25+miles away from the nearest patient or caregiver's garden!

Albert
Albert

Yeah, the 25 mile halo prohibition needs to end.  There hasn't been any "real" crime associated with people growing, and no house fires... all the things that Humble said would happen because of home grows... All lies to incite more fear.

mike
mike

exactley james,why pay for something that you can grow in your own garden?
the only thing a dispensory is good for is,finding high quality,professionaly grown bud,at premium prices.

Leaf Star
Leaf Star

I agree with you, but the people who can't afford to grow and wait several months for their medicine may be able to afford "read to buy" medicine, that is why the provision for dispensaries was implemented in the AMMA (AZ Med Marijuana Act)...

Leaf Star
Leaf Star

I meant to type "ready to buy"

teknik1200
teknik1200

The one thing dispensaries should be good for is mold free product for cancer patients.  this aspect is hard for the closet grower.

But I agree, I hope they don't open any up.

James
James

It's not "paying" that I object to. It's being given a right, and then having that right taken away because it is given to someone else who gets a 25 mile exclusion zone, where YOU have to MOVE if you want to keep your rights.  This is a very serious problem.

Joyfully1
Joyfully1

Easy...Become a caregiver and find a patient who lives outside the 25 mile rule.

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