PHOENIX — A federal judge on Wednesday refused to tell Gov. Jan Brewer whether she can legally implement Arizona’s voter-approved medical marijuana law.
Judge Susan Bolton rejected the governor’s argument that she wanted to know if state employees who process applications for marijuana dispensaries could be at risk of prosecution under federal laws which make possession and distribution of the drug illegal. Bolton said the letter to state health officials from Dennis Burke when he was the chief federal prosecutor in Arizona contained no such threat.
The judge said the only way she might be able to intervene is if some Arizona employee actually were charged with violating the federal Controlled Substances Act. But Bolton said not only has that not occurred in Arizona, but that no workers in any state that have similar laws have ever been arrested.
Gubernatorial press aide Matthew Benson said despite the ruling, Brewer remains concerned about the potential liability of state health workers.
More immediately, Benson said that Brewer has not decided whether to lift her order which currently bars state Health Director Will Humble from processing dispensary permits.
“The governor is studying her options at this point,’ he said. “Obviously, we’ve just received the ruling.’
Brewer, however, may not get to make that decision.
A separate lawsuit in Maricopa County Superior Court is asking for an order directing Brewer to comply with the provisions of last year’s voter-approved law. That specifically includes licensing about 125 state-regulated dispensaries where medical marijuana users can legally purchase the drug.
As of late Wednesday, Judge Richard Gama had not yet issued a ruling.
The law requires the health department to issue a marijuana use permit to anyone with a doctor’s recommendation that they have a medical condition which would benefit from the drug. Nearly 18,000 such applications already have been approved.
But Brewer blocked Humble from even accepting applications for the dispensaries. That came after then- U.S. Attorney for Arizona Dennis Burke, responding to an inquiry from Humble about the liability of state workers for facilitating the sale of marijuana, wrote back that he could not promise immunity from prosecution for anyone.
“We have thousands of state employees ( who ) come to work every day just to do their job,’ Benson said. “It’s unfortunate that any single one of them could be at risk for federal prosecution for doing exactly that.’
In her ruling, though, Bolton said that assertion is speculative at best.
“The action of federal officials in relation to other states do not substantiate a credible, specific warning or threat to initiative criminal proceedings against state employees in Arizona if they were to enforce the Arizona Medical Marijuana Act,’ the judge wrote. “Plaintiffs have not shown that any action against state employees in this state is imminent or even threatened.’
And Bolton said Brewer, in her lawsuit, never spelled out anything that state workers would be doing that appears to be in violation of federal drug laws.
The refusal of the state to license dispensaries has not stopped medical marijuana users from getting the drug legally.
A provision in the initiative says anyone who lives at least 25 miles from a dispensary is entitled to grow his or her own drugs. With no dispensaries, that applies to everyone.
This is actually the second time Bolton has swatted away Brewer’s efforts to get a court ruling.
In her initial lawsuit last year, the governor simply asked whether the state’s medical marijuana law conflicts with federal statutes. Bolton said there is no legal authority to ask her for an opinion and told them they needed to pick a side.
Brewer responded by directing attorneys to assert the position that federal law trumps the voter-approved law.
But Bolton said Wednesday even that new position does not give the state the right to ask her for what still amounts to a ruling on a purely speculative problem that has not arisen and may never arise.