Update: Conflict between state marijuana initiative and federal law

Gov. Jan Brewer explains why she has directed Attorney General Tom Horne to ask a federal court to decide if Arizona can enforce its new medical marijuana law despite federal statutes making possession, sale and transportation of the drug illegal.  (Capitol Media Services photo by Howard Fischer)

Gov. Jan Brewer explains why she has directed Attorney General Tom Horne to ask a federal court to decide if Arizona can enforce its new medical marijuana law despite federal statutes making possession, sale and transportation of the drug illegal. (Capitol Media Services photo by Howard Fischer)

PHOENIX -- Saying she fears people could wind up in legal trouble, Gov. Jan Brewer on Tuesday ordered the state attorney general to get a federal court to rule whether Arizona can implement its medical marijuana law.

Brewer said it was always known there was a conflict between the law, which lets Arizonans with a doctor's recommendation get a state-issued card letting them purchase and use marijuana, and the federal statutes which make possession, sale and transportation a felony.

But she said a letter earlier this month from Dennis Burke, the U.S. Attorney for Arizona, to her state health chief appeared to be a warning that anyone involved -- from patients and dispensary operators to landlords and even state health officials -- could wind up being prosecuted by his office.

"I believe in the will of the people,' Brewer said, even though she personally opposed the initiative.

"Unfortunately, with this piece of legislation, there are some pretty serious consequences if we don't get them resolved,' she continued. "And I, as governor, am not willing to put those people at risk.'

Despite that, the state health department will continue issuing "qualified patient' cards to anyone who produces the required doctor's certification that he or she has a medical condition which can be treated with marijuana.

Gubernatorial press aide Matthew Benson said the state really has no choice: The initiative approved in November says if the health department does not issue a card within 45 days of a valid application, the card is considered automatically issue. That language was inserted to keep the state from thwarting the law.

About 4,000 Arizonans already have been certified by the health department to be able to purchase up to 2 1/2 ounces of marijuana every two weeks.

But Benson said it remains unclear whether the state will start issuing licenses for dispensaries to sell the drug commercially while the lawsuit, set to be filed Friday, progresses. The first applications can be submitted this coming week.

The decision to sue drew fire from Ryan Hurley, an attorney who represents dispensary owners.

Hurley said he understands why the governor and Attorney General Tom Horne would want a federal judge to clarify whether Arizonans can be prosecuted under federal law even if they are following the state law.

But Hurley pointed out that Horne admitted he will not be asking the court to uphold the law or rule that it trumps federal statutes. Instead, the state is taking no position on the validity of the Arizona law.

He said Horne and Brewer should be defending the right of Arizonans to pass their own laws and decide what medicines should be available in the state.

Brewer sidestepped repeated questions of why the state is not mounting a vigorous defense of the law.

Horne said there are issues of states' rights involved in the dispute.

But he said that, unlike the lawsuit he and Brewer are waging with the federal government over Arizona's immigration laws, there is a clear conflict between the goals of the state and federal drug laws. That, he said, makes it inappropriate for him to demand that a federal judge rule that federal prosecutors cannot enforce federal laws in Arizona.

Joe Yuhas, spokesman for the Arizona Medical Marijuana Association, which helped get the initiative enacted, blasted the lawsuit as "a waste of state taxpayer money.' He said that the federal government has never moved to shut down operations in 16 other states that have medical marijuana laws.

But Brewer said she saw something in Burke's message that made her believe he would be more aggressive.

"I found it interesting the letter was so straightforward, so direct,' she said. "I did not take it lightly.'

In his May 2 letter to Will Humble, the state health director, Burke said he intends to follow "guidance' from superiors in Washington not to focus his limited resources on seriously ill patients who use marijuana as part of a doctor's treatment program. But Burke said even those who comply with the state law remain subject to prosecution by his office.

Potentially more significant, Burke had special words of caution to those who are in the business of growing marijuana even if they have a cultivation license from the state. And he said even those on the periphery, including property owners, landlords and organizations which finance dispensaries, risk not just federal criminal prosecution but also having the assets seized.

"This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution,' Burke wrote.

Brewer said Burke's warnings leave a bunch of questions unanswered beyond the basic one of whether Arizona's law is trumped by federal statutes.

For example, the governor specifically wants to know if state officials who issue dispensary licenses can be prosecuted because they are "facilitating' in the distribution of marijuana.

But Yuhas said no employees in any state with medical marijuana laws have ever been charged.

Brewer also said she fears that the state Department of Public Safety could lose federal grants by refusing as a matter of policy to arrest those caught with the drug simply because they are complying with state law.

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