Sunday, May 29, 2011

Lawsuit stalls medical-pot dispensaries

Arizona's health director put medical-marijuana dispensaries on hold just days before he was to begin accepting applications, citing the lawsuit filed by the state in federal court Friday to determine whether the new law conflicts with federal drug statutes.

State Department of Health Services Director Will Humble is a plaintiff in the lawsuit, along with Gov. Jan Brewer and state Department of Public Safety Director Robert Halliday. The suit seeks a declaratory judgment regarding whether compliance with Arizona's voter-approved medical-marijuana law shields state employees, patients, dispensary owners and others from federal prosecution.

Brewer's office had said the governor would issue an executive order to halt the dispensary-permit process, set to begin Wednesday. But Humble said on his weekly blog and on Twitter that the state Attorney General's Office had advised him not to accept applications while the legal questions are pending.

"Whether we will accept and process dispensary applications at a later date will depend on the outcome of the legal action," Humble wrote.

The state will continue to issue medical-marijuana user-ID cards.

There likely will be more legal action, as attorneys for potential dispensary owners have indicated they will sue.

Proposition 203, approved by voters in November, allows for lawsuits in Superior Court if the state fails to implement the law.

"I don't know if it will happen Wednesday, but it will happen," said attorney Ryan Hurley, whose firm represents more than a dozen potential dispensary applicants.

The state's lawsuit, filed late Friday by Attorney General Tom Horne, names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants, along with voters who supported the ballot measure, patients and would-be dispensary owners.

It contends that letters sent over the past several months by federal prosecutors have cast doubt on the legality of Arizona's law and the liability of state employees and others who abide by it. Arizona is among 16 states with medical-marijuana laws, and all of them conflict with federal law, which outlaws the cultivation, sale and use of pot.

"Failure to faithfully implement the (Arizona Medical Marijuana Act) exposes plaintiffs to legal action," the lawsuit says. "The actions of these government defendants serve to undermine efforts of the plaintiffs to implement state law in accordance with the will of the people of the state of Arizona."

Burke has said there is no change in the long-held federal policy of not going after people who use medical marijuana in "clear and unambiguous compliance" with state laws. But he and other federal prosecutors also have reiterated that marijuana remains illegal under federal law.

The case puts Arizona in the spotlight, attorneys say, because every state that has a medical-pot law or is contemplating one struggles with the same state-federal conflict. The American Civil Liberties Union has signed on to represent one of the defendants, arguing that the Controlled Substances Act gives states flexibility to adopt their own drug laws. Three appellate cases in California back that argument.

by Mary K. Reinhart The Arizona Republic May. 28, 2011 12:00 AM

Lawsuit stalls medical-pot dispensaries

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