A funny thing happened on Monday. The Department of Justice filed a brief regarding state medical marijuana laws in Arizona . . . and it was a good thing, and was met with appreciation from the medical marijuana movement! Seriously. After the disappointments of the vague, not very helpful Cole memo, and the expected but still disappointing DEA denial of marijuana’s medical value, it was great to see the Department of Justice (DoJ) doing the right thing regarding medical marijuana, even if it was only in a limited way.
As you may know, Arizona Governor Jan Brewer, last seen promoting states’ rights and vowing to fight on when it comes to illegal immigration, and her Attorney General, Tom Horne, had filed a suit as plaintiffs against the federal government, requesting permission to move ahead with Arizona’s medical marijuana program implementation. This was ridiculous, since no other governor has needed federal permission to move ahead with medical marijuana implementation, even though some others have also tried to use the red herring threat of federal action to slow implementation. Apparently, the DoJ also thinks Brewer’s claims are ridiculous, and it said as much in its withering Motion to Dismiss brief, in which it took apart each of the state of Arizona’s arguments, urging the court to dismiss the case. If the court dismisses the case, Brewer’s logical course of action would be to fully implement Arizona’s medical marijuana law, including licensing more than 100 dispensaries, though given her intransigence, that course of action is sadly not a given.
Throughout its brief, the DoJ basically said that the state of Arizona has no case and that plaintiffs Gov. Brewer and AG Horne have invented a controversy where none exists. Further, the brief notes that a state is not allowed to bring a case asking two sides to fight it out, without taking a position on the law in question, belying Gov. Brewer’s claims upon the suit’s filing of being a neutral party seeking “clarity.” The American judicial process simply does not work that way. In its brief, the DoJ’s criticism of the plaintiffs’ complaint was often direct and sometimes even slightly mocking, which was definitely appreciated by this reader.
The brief attacks the premise of Arizona’s suit in several ways. It says that the suit does not raise a substantial federal question (which it must in order to be heard first in federal court) because it asks for a declaratory judgment on the validity of a state law. It is amusing to watch the federal government explain Constitutional Law 101 to Gov. Brewer, noting that, “there is no federal jurisdiction of a suit by a state to declare the validity of its regulations despite possibly conflicting federal law” (p. 6). The brief also states directly that Arizona has not asserted any “actual, concrete controversy” in its complaint. The brief criticizes the plaintiffs for not identifying a controversy between the parties in the suit and notes the plaintiffs’ failure to take a side as a fatal flaw in the lawsuit, accusing the state of Arizona of “attempt[ing] to manufacture disputes among other parties” (p. 9). The brief criticizes Arizona’s decision to create twenty fictitious defendants, ten on one side of the law and ten on the other, states its doubts about the existence of the hypothetical defendants, and notes definitively that “parties cannot have ‘adverse legal interests’ necessary to establish a live controversy, when one party (particularly the plaintiff) professes to take neither side of the dispute” (p. 10). Finally, the brief denies that Arizona even has standing to raise such a claim, as it has not suffered any “injury in fact.” Basing standing on the idea that some Arizonans disagree about federal law’s effect on Arizona’s medical marijuana law will not work, nor will an unspecific suggestion about a “supposed risk that Arizona citizens will lose revenue or property” (pp. 11-12).
More importantly on a national level, this DoJ brief appears to affirm the following interpretation of the Ogden and Cole Memorandums, along with other relevant case law and actual enforcement: that there has been no demonstration that the federal government is interested in prosecuting state employees for implementing state medical marijuana programs and issuing dispensary licenses. The DoJ cites the lack of any “genuine threat that any state employee will face imminent prosecution under federal law” (p. 2) and notes that “plaintiffs can point to no threat of enforcement against the State’s employees” (p. 10). The brief notes that Arizona has no “concrete plan to act in violation of the Controlled Substances Act,” as it has refused to accept dispensary applications and issue licenses (an act that MPP believes, based on relevant court precedent, would clearly not be such a violation). The brief notes that Arizona was not able to produce any threat, generalized or specific, directed towards its state employees, and it points to the omission of any state employee threats in Arizona U.S. Attorney Dennis Burke’s letter on the issue (p. 14). The brief dismisses Arizona’s suggestion that Arizona state employees are subject to federal prosecution as “mere speculation” (p. 15). It sums up this argument when it says:
Plaintiffs identify no prior instances in which the federal government has sought to prosecute state employees for the conduct vaguely described in Plaintiffs’ complaint. Without evidence of such prior prosecutions, Plaintiffs cannot credibly show a genuine threat of imminent prosecution in this case. (p. 15)
This message from the DoJ is heartening, along with U.S. Attorney Burke’s clear statement that going after state employees “is not a priority for us, and will not be." This brief also comes on the heels of the statement of former U.S. Attorney and New Jersey Gov. Chris Christie, who said definitively about his decision to implement the state’s medical marijuana program:
I don’t believe the United States Attorney’s Office in New Jersey, given the narrow and medically based nature of our program, will expend what are significantly lessening federal law enforcement resources in the context of the federal budget, on going after dispensaries in New Jersey, our Department of Health or other state workers who are helping to implement this program.
These recent events all suggest that the Department of Justice is interpreting its guidance to mean that state employees can fully implement medical marijuana programs, like those in Arizona and Rhode Island, with no fear of prosecution. So let’s get it done, Governors Brewer and Chaffee! Time is wasting, and people are hurting and need their medicine now.
Arizona Governor Jan Brewer announced yesterday that she is directing state Attorney General Tom Horne to go to federal court to question the validity of Arizona’s voter-enacted medical marijuana law. The suit will be filed this week. Brewer said the state attorney general will not defend the law.
Brewer initially indicated the state would be putting both patient ID cards and dispensary registrations on hold. Since then, her spokesperson announced they will continue issuing patient ID cards, after the administration apparently realized that the MPP-drafted law includes a safety valve so that a doctor’s certification and a notarized statement would function as an ID card if the state stopped issuing cards. The state was scheduled to begin accepting dispensary applications next week, but whether they will do so is now in question. If dispensary registrations are not granted, patients would have to cultivate for themselves, designate caregivers to do so, or turn to the criminal market.
“We are deeply frustrated by this announcement,” said MPP executive director Rob Kampia. “The law Governor Brewer wants enjoined established an extremely well thought-out and conservative medical marijuana system. The law was drafted so that a very limited number of non-profit dispensaries would serve the needs of patients who would be registered with the state. Governor Brewer is trying to disrupt this orderly system and replace it with relative chaos. We cannot think of a single individual -- aside from possibly illegal drug dealers -- who would benefit from Governor Brewer's actions. She has done a disservice to her state and its citizens."
Gov. Brewer's lawsuit is not the first time elected officials have sought to spend taxpayer money to try to overturn a state medical marijuana law. In 2005, San Diego County sought to enjoin most provisions of California's medical marijuana law. Ultimately, every court ruled against the county or refused to hear the case, all the way up to the U.S. Supreme Court. The only decision on whether the licensing of dispensaries would be federally preempted found that it would not be.
Perhaps Gov. Brewer is having a contest with San Diego County to see who can waste more of voters’ money in a futile challenge of the people’s will.