The Legal Nexus

A blog of the Maricopa County Bar Association

Governor, Attorney General To File Suit Regarding the Legality of the Arizona Medical Marijuana Act

Brewer says Court Action Needed to Determine Whether AMMA Violates Federal Law 

On Tuesday, May 24, Gov. Jan Brewer said she has directed Arizona Attorney General Tom Horne to file suit by the end of the week seeking a declaratory judgment from a federal court regarding the legality of the Arizona Medical Marijuana Act (AMMA).

“For the state employees charged with administering the medical marijuana program or the Arizonans who intend to participate as consumers, it’s important that we receive court guidance as to whether they are at risk for federal prosecution,” said Brewer. “As explained in a recent letter from the U.S. Attorney for Arizona, the federal government considers marijuana a controlled substance. Arizonans deserve clarity on an issue with such dire legal implications.”

The Arizona Department of Health Services had been implementing voter-approved AMMA provisions until it received a letter, dated May 2, 2011, from U.S. Attorney Dennis Burke. Burke’s letter warned that marijuana remains a Schedule I Controlled Substance, meaning that “growing, distributing and possessing marijuana, in any capacity, other than as a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities.” Burke said that his office would “vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law.”

In his letter, Burke raises questions about the legality of both the AMMA and related Arizona Administrative Code provisions. Brewer said she is concerned about the vulnerability of state employees charged with administering the AMMA, including, but not limited to, the issuance of dispensary licenses and qualified-patient registration cards. If a federal prosecutor were to decide that such activities are contrary to federal law, state employees may be subject to federal prosecution, she said.

Burke’s letter also expresses concern that medical marijuana creates uncertainty for state law enforcement. In the letter, he calls into question the ability of the Arizona Department of Public Safety (DPS) to maintain federal grant monies, the department’s enforcement activities and federal task force actions, and the employment status of DPS employees who could be in violation of federal law while participating as consumers in the AMMA.

For these reasons and others, Brewer said she has decided to file a declaratory judgment action regarding medical marijuana in Arizona to determine whether AMMA violates federal law and, therefore, is void.

“The state of Arizona has worked to follow the wishes of voters,” said Brewer. “But I won’t stand aside while state employees and average Arizonans acting in good faith are unwittingly put at risk. In light of the explicit warnings on this issue offered by Arizona’s U.S. Attorney, as well as many other federal prosecutors, clarity and judicial direction are in order.”

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May 25, 2011 - Posted by | About Us

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