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ACLU Asks Federal Judge to Throw Out Arizona Governor’s Lawsuit Challenging State’s M

  1. Terrapinzflyer
    PHOENIX--(ENEWSPF)--July 7, 2011. The American Civil Liberties Union today asked a federal judge to throw out a lawsuit filed in May by Arizona Gov. Jan Brewer that seeks to have her state’s medical marijuana law struck down.

    In a motion filed today in the U.S. District Court for the District of Arizona, the ACLU charges that the lawsuit should be dismissed because, among other reasons, there has been no threat that state employees charged with carrying out the state’s law would be prosecuted by federal authorities.

    “On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine,” said Scott Michelman, staff attorney with the ACLU Criminal Law Reform Project. “People should have the freedom to choose the medicine their doctors believe will be most effective for them.”

    In May, Brewer filed a lawsuit against the Department of Justice, U.S. Attorney General Eric Holder, U.S. Attorney Dennis Burke and potential dispensary applicants seeking a ruling from a federal court that the law is preempted by federal law and should be struck down. The ACLU, along with the Phoenix law firm Gammage & Burnham, represents the Arizona Medical Marijuana Association (AzMMA), a non-profit, membership-based professional association that seeks to advance the interests of Arizona’s medical marijuana profession and the patients it serves, and that is a named defendant in Brewer’s lawsuit.

    Brewer’s lawsuit claims that Arizona officials fear federal prosecution for implementing the law, even though Burke said in the days leading up to Brewer filing the lawsuit that the federal government has “no intention of targeting or going after people who are implementing or who are in compliance with state law.”

    Brewer’s lawsuit also claims that Arizona’s medical marijuana law is in conflict with the federal Controlled Substances Act. But three appellate court decisions in California have previously rejected claims that California’s medical marijuana law is preempted by federal law. And the Oregon Supreme Court in May backed away from its previous ruling that a part of Oregon’s medical marijuana law is preempted by federal law.

    A majority of Arizona voters in 2010 passed Proposition 203, which allows terminally and seriously ill patients in Arizona who find relief from marijuana to use it with a doctor’s recommendation. The law allows marijuana to be distributed by tightly regulated clinics to patients with state-issued registry cards and creates penalties for false statements and fraudulent cards.

    “Gov. Brewer’s efforts to derail Prop 203 are bad for patients and bad for public safety,” said Alessandra Soler Meetze, executive director of the ACLU of Arizona. “This law received broad public support because it was thoughtfully written to give patients access to vital medicine, while at the same time creating a well-regulated system of distribution. By preventing state health officials from doing their jobs, Brewer is actually doing more harm than good and creating chaos in a system sanctioned by Arizona voters.”

    Along with Michelman, attorneys on the case are Daniel J. Pochoda of the ACLU of Arizona, Lisa T. Hauser and Cameron C. Artigue of Gammage & Burnham, Flagstaff, Ariz. attorney Thomas W. Deene, who represents the Arizona Association of Dispensary Professionals, Inc. and attorneys from the Scottsdale, Ariz.-based Rose Law Group PC, who represent the remainder of the named non-federal defendants in Brewer’s lawsuit.

    THURSDAY, 07 JULY 2011


    Copy of motion attached.


  1. Terrapinzflyer
    Re: ACLU Asks Federal Judge to Throw Out Arizona Governor’s Lawsuit Challenging State

    In Arizona, a Battle Over Medical Marijuana
    A lawsuit tests whether legal pot violates federal antidrug statutes

    When entrepreneur Ian Christensen looks around the white-walled office he hopes to lease in Paradise Valley, Ariz., he sees opportunity. Now all he needs is some pot. Like hundreds of others here, Christensen has sunk tens of thousands of dollars into his plans to sell medical marijuana legally, which voters approved by referendum in November.

    He’s starting to wonder if he’ll ever open up shop. Governor Jan Brewer, a Republican who opposed the initiative, has found a new way to try to keep it from going into effect: She brought a suit in federal court in Phoenix asking a judge to decide whether the Arizona statute should be struck down because it violates federal antidrug laws. Brewer has said she is concerned that people who operate marijuana dispensaries and state workers who oversee the pot trade may be subject to federal prosecution. The ruling could also affect California and 14 other states that allow marijuana for medicinal use. “They put the dispensaries out of business before we ever started,” says Christensen. Brewer maintains the lawsuit has nothing to do with her own feelings about legalizing medical pot. She has taken no position in the case, says her spokesman, Matthew Benson—she’s just looking out for Arizonans. Whatever her motivation, Brewer has delved into a murky area in the relationship between the states and the federal government. Selling and possessing pot is illegal under federal law, even for medical use. State medical marijuana laws have existed on questionable legal ground since California became the first to authorize it in 1996.

    The U.S. Justice Dept. has sent mixed signals. A 2009 Justice memo to U.S. attorneys said federal resources shouldn’t be spent prosecuting people complying with state medical marijuana laws. Late last month, however, after more states began implementing or considering commercial licensing programs for medical marijuana, Deputy U.S. Attorney General James M. Cole wrote in a memo to federal prosecutors that those who grow, sell, or distribute marijuana or “facilitate” those activities risk prosecution. Brewer accused the Justice Dept. of “continued confusion and doublespeak.”

    She isn’t the only governor seeking clarity. In April, Washington Governor Christine Gregoire, a Democrat, asked the federal government for guidance when she was weighing whether to approve a licensing system in the state, which legalized medical marijuana in 1998. Washington’s U.S. attorneys responded that those who grew and distributed marijuana risked prosecution—as would anyone who facilitated those operations, including state employees. Gregoire vetoed the measure. Two weeks after Brewer filed her suit on May 27, New Jersey’s Republican governor, Chris Christie, announced he would delay his state’s medical marijuana program until U.S. authorities clarify their position.

    The American Civil Liberties Union has asked the court to dismiss Brewer’s lawsuit. Among other arguments, the ACLU says states shouldn’t be able to challenge the legality of their own laws in federal court. “It will be a significant ruling that will affect how medical marijuana laws are implemented and how they may or may not be challenged in the future,” says Scott Michelman, an ACLU staff attorney. Would-be dispensary owners are suing in state court to force the governor to license their businesses.

    Meanwhile, a more casual medicinal marijuana market is taking hold in Arizona. Absent licensed dispensaries, the law lets approved patients grow or designate “caregivers” to grow up to 12 marijuana plants. Caregivers aren’t subject to the stringent state regulations that would govern dispensaries. More than 6,500 patients have received medical marijuana cards since the program began in April, according to state health department statistics, with 75 percent indicating they planned to grow their own.

    Ingrid Joiya, who says her company has invested nearly $250,000 to develop a chain of dispensaries with cashless vending machines, is working to revamp her plan using marijuana from caregivers. “We financially committed to these things, to put money in an economy in a state that desperately needs it,” she says. “It is a nightmare. … Voters voted on this, and the governor is trying to stop it under a ruse.”

    The bottom line: As more states move to regulate medical marijuana, the federal government must decide how stringently to enforce federal drug laws.

    By Amanda J. Crawford
    STATES’ RIGHTS July 14, 2011
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