"That's Not How Lawsuits Work": Read Transcript of Federal Medical Marijuana Hearing That Smoked Jan Brewer's Lawsuit
Photo Illustration: New Times
Followers of the highs and lows of Arizona's Medical Marijuana Act should enjoy the newly released transcript of the federal court hearing that ended Governor Jan Brewer's anti-pot lawsuit.
The January 4 dismissal of Brewer's lawsuit, which was clearly intended to thwart a new medical marijuana law, came after a December 12 hearing that didn't go well for one of Arizona Attorney General Tom Horne's lawyers.
Horne, who hasn't been averse to stepping into a courtroom on occasion since being elected in 2010, stayed away from this one and let assistant Attorney General Lori Davis take one for the team.
In the transcript, Davis, (who apparently works out of her Paradise Valley home now according to State Bar records), absorbs the flurry of legal blows from U.S. District Court Judge Susan Bolton, who takes a "you-gotta-be-kidding-me" approach to the state's ambiguous position.
The hearing turned into a checkmate for Brewer and Horne, who had claimed their lawsuit was "neutral" since filing it in May even as they begged the federal government to do something about the law. They didn't want to side with medical marijuana supporters and the voters who passed the law in November of 2010. But siding against it was politically dangerous and violated Arizona's Voter Protection Act.
So they didn't take a side. And Bolton called Davis on it.
"That's not how lawsuits work," she tells Davis on page 21. "The plaintiff takes a position and doesn't take two diametrically opposed positions. You have to advocate your position."
U.S. District Judge Susan Bolton
Davis gets it, but has to blunder on in the play with the bad lines her boss gave her.
Here's another sampling, this time from page 30:
THE COURT: At a minimum though, don't I have to force you to amend to decide which side of this you're on, because you have to take a side?
MS. DAVIS: Well, Your Honor, that certainly could be part of the Court's order and we would consider whatever the Court has -- if the Court --
THE COURT: You don't agree you have to take a side?
MS. DAVIS: I believe we have taken a side, Your Honor, and I'm going to point out --
THE COURT: Which side?
Davis stumbles some more, then Bolton lets her sense of humor show through as she describes what could conceivably happen next:
And once you decide which position to take, we're probably going to have to realign the defendants, because some will be with you and some will be against you. I don't know which ones. We could get the federal government with the State of Arizona, which would be refreshing, or we could get all of the medical marijuana people with the State of Arizona against the federal government, which would be more traditional, and go from here possibly.
We also liked this passage, perhaps because we imagined Davis saying "may I have another" after her response:
THE COURT: You're going to have to pick at some point. I won't make you do it today in front of this whole audience.
MS. DAVIS: Thank you, Your Honor.
Medical marijuana proponents may find some of Bolton's comments a tad sobering, however. The judge makes it clear that it's a "given" that Arizona's new law is in direct conflict with the federal Controlled Substances Act.