PHOENIX – On Friday, Arizona Attorney General Tom Horne will file a federal lawsuit on behalf of the state of Arizona asking for a declaratory judgment on the legality of its new voter-approved medical marijuana initiative.
The lawsuit stems from a letter written by U.S. Attorney Dennis Burke last month. In that letter, Burke warned that growing, distributing and possessing marijuana is against federal law. He also said individuals and businesses engaged in those activities could face federal charges.
"The CSA [Controlled Substances Act] may be vigorously enforced against large marijuana-production facilities," Burke wrote to Will Humble, director of the state Department of Health Services.
"Individuals and organizations – including property owners, landlords, and financiers – that knowingly facilitate the actions of traffickers also should know that compliance with AMMA will not protect them from federal criminal prosecution, asset forfeiture and other civil penalties."
"This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution."
It’s that phrase in particular that has Gov. Jan Brewer and Horne concerned.
“You can’t have people subject to two competing sovereignties – the state sovereignty that says it’s OK [and] the federal sovereignty that says it’s not OK, we’ll prosecute it,” Horne said. “In that kind of a situation, you need to go to a federal judge and say, ‘OK, who prevails and what’s going to happen?’”
While Burke said in his letter that growers and sellers could face federal charges, he also said he had no plans to go after “seriously ill individuals who use marijuana as part of a medically recommended treatment regimen and are in clear and unambiguous compliance” with Arizona’s law.
At the time, the Arizona Department of Health said it’s possible -- even probable -- that Burke’s promise to prosecute those who grow and sell marijuana might reduce the number of applications for dispensary licenses.
The application process for potential dispensaries was set to begin on June 1. Now, however, the entire program, which was approved by voters, is on hold while courts decide on its legality.
One of Brewer’s primary concerns is the state employees who are involved in medical marijuana program.
“The state employees are participating in preparing regulations, issuing permits,” Horne explained. “This is true of county and local employees, as well. If it’s found that this whole activity is illegal, then they’re subject to arrest the same as other people participating in the process. You simply can’t have that.”
Proponents of the initiative say the federal government has never sued to keep a state medical marijuana from being implemented, nor has it arrested state employees involved in such a program.
“The Justice Department did a 180-degree turn,” Horne said. Early on a memo stated that cases in which people who were doing things that were legal under state law would not be prosecuted. Those cases would be a given a low priority. Recently, however, U.S. attorneys for several districts, including Arizona, have issued letters stating the opposite.
“We have to listen to what they’re saying because they put people in jeopardy,” Horne said.
According to Horne, some states have halted their medical marijuana programs completely in view of those threats of prosecution.
“We took a neutral position,” he said. “We have not sought to undo the will of the voters, nor have we sought to give implementation to our own views of the merits of the situation. … We’ll let those with an interest in the subject actually do the arguing for one side or the other on the merits of it. We simply think a court has to rule on it.”
It’s not clear how long the program will be delayed.