Medical Marijuana and Arizona Hypocrisy

By Fernando Anzaldua

The Arizona Medical Marijuana Act[i] (“AMMA”) protects terminally/seriously ill patients from state prosecution for using small amounts of marijuana at the recommendation of their doctor. The AMMA was passed in November 2010, when Arizona voters passed Proposition 203. It took effect in April of 2011. The AMMA allows authorized medical marijuana patients with a debilitating medical condition to obtain identification cards that allow them to obtain medical marijuana, possess a usable amount of marijuana (up to 2.5 ounces), and in some cases cultivate their own marijuana plants. The law was subsequently challenged in Federal court by Governor Brewer and Arizona Attorney General Tom Horne in late May. Horne seeks a declaratory judgment on whether state employees or citizens who manufacture or distribute medical marijuana are subject to Federal prosecution for violating the Controlled Substances Act. This suit was filed despite the US Attorney for Arizona Dennis Burke, stating that, “We have no intention of targeting or going after people who are implementing… state law.” Deputy US Attorney Scott Risner has asked the court to throw out the suit because a ruling would be a hypothetical opinion since no state employees currently face federal prosecution under Federal law. The ACLU has also asked the court to dismiss the suit arguing that there is no basis for federal prosecution of state dispensary regulators because that activity does not conflict with the Controlled Substances Act, nor does it prevent its enforcement. The issues raised in the suit are not ripe for litigation, the state has no standing to raise them, and there is no true case or controversy for a court to rule on.

Attorney General Horne has also asked the Maricopa County Superior Court to shut down three Phoenix area medical marijuana clubs. Under the AMMA, patients can legally grow marijuana and give it to other medical marijuana patients so long as there are no medical marijuana dispensaries nearby and nothing of value is exchanged. Legal challenges have precluded dispensary applications from being processed, leading to the influx of medical marijuana clubs and home cultivation. Horne is not seeking to protect state employees from Federal prosecution this time around, but instead the allegation is that these clubs illegally distribute marijuana to fee-paying members and that the new law does not protect marijuana clubs and cooperatives. The complaint names three valley clubs: 2811 Club, Arizona Compassion Club, and Yoki Mana. The complaint also names Michael Miller, who is associated with the Arizona Compassion Club.

Al Sobol, founder of 2811 Club, stated that he does not run an unlicensed medical marijuana dispensary, but rather the club is a “venue” that allows medical marijuana patients to exchange marijuana in a “safe, dignified way.” The 2811 Club charges patients an initial $25 application fee and a $75 entry fee for each visit, which includes classes and a free sample. The club offers medical marijuana through the Arizona Compassion Club (a co-op of patients and caregivers). Mr. Sobol believes that he is in total compliance with the new law. A judge’s ruling on the legality of these clubs would affect other clubs in the valley as well.

Recently, DEA agents arrested a medical marijuana clinic owner and his girlfriend in Tempe. The agent stated that, “Essentially what we discovered is that they were illegally distributing marijuana for a fee.” The agent added that this violated federal law and charges are pending. The DEA was acting on information that a dispensary was illegally operating in the area. As noted above, dispensary applications are on hold pending the outcome of legal challenges. It is unclear whether the DEA would have pursued these arrests if the marijuana club were not charging a fee and were otherwise in accordance with state law.

The State’s challenge to these medical marijuana clubs shows that the previous request for a declaratory judgment on whether state employees would be subject to federal prosecution is just a guise for trying to undermine the will of Arizona’s voters. Horne has said, “We will not take a substantive position, either to thwart the will of voters … nor to try to impose our own policy views.” However, the Republican Governor and Attorney General have clearly demonstrated their disapproval of the AMMA through these court challenges. Governor Brewer’s actions are especially surprising given her strong belief in state autonomy in areas such as health care and immigration. She has challenged federally mandated insurance and has endeavored to pick up the slack in federal immigration enforcement. Yet, Brewer seeks federal permission to implement a law that was passed by a majority of the state’s voters and has sought to disrupt its responsible and orderly implementation.

Our elected officials should not stifle the voters’ intentions, which were expressed through the passage of Prop. 203. Rather they should help facilitate the transition toward a more compassionate and responsible implementation of the Arizona Medical Marijuana Act. Our Governor and Attorney General have shown that the needs of these patients will not be satisfied through their leadership. Patients should be free to choose the medication that their doctors determine will be most beneficial for them. The bottom up growth of these clubs showsthat the needs of the patients will be met, despite attempts to undermine implementation, through the compassion and cooperation of the people.