PHOENIX -- Saying there's no reason for legal intervention, the American Civil Liberties Union asked a federal judge on Thursday to throw out the lawsuit by Gov. Jan Brewer seeking a ruling on the state's medical marijuana law.
Attorney Dan Pachoda said the governor has no legal basis to try to get what amounts to an "advisory opinion' on whether Arizonans can sell, buy or use medical marijuana in accordance with state law without running afoul of federal anti-drug statutes. He said only when a medical marijuana user, seller or cultivator is charged with violating federal laws will the issue be "ripe' for a court ruling.
Pachoda also derided the claims of Brewer and Attorney General Tom Horne that they need a federal court ruling to ensure that state health department employees who process the applications of both patients and dispensaries would not be charged with "facilitating' the illegal possession of drugs under federal law.
"The courts have rightly understood that you need something more than the fact that one could be charged under a particular statute,' he said.
"You need some imminent threat of prosecution that's more than just speculation, that's more than just the possibility' that someone might be prosecuted. Pachoda said if federal judges were able to issue rulings any time someone feared he or she might be charged with violating federal law, "then everybody will be in court trying to get a declaration saying they're immune from future prosecutions.'
But Attorney General Tom Horne said there is a legal basis for asking the court to look at the state and federal laws. He also took a slap at the ACLU.
"I served 24 years on a school board,' he said. "I used to say if you don't get sued at least twice a year by the ACLU, you're not doing your job.'
The dispute surrounds the law approved by voters last November allowing anyone with a doctor's recommendation and a state-issued ID card to purchase up to 2 1/2 ounces of marijuana every two weeks from a state-licensed dispensary.
More than 6,500 individual use permits already have been issued.
But state Health Director Will Humble, in consultation with the governor, decided in May not to process or even accept applications for dispensaries while there is a question of criminal liability under federal drug laws. Brewer then got Horne to file suit in federal court asking if Arizona can implement its medical marijuana law despite the federal statutes.
In its pleadings, the ACLU said there is no legal basis for a state to ask a federal judge to validate -- or invalidate -- its laws. Anyway, the organization says, there is no basis for any fear that state workers would be prosecuted.
He pointed out that Humble had asked Dennis Burke, the U.S. Attorney for Arizona, for some guidance on whether state employees were at risk.
Burke responded by saying the Department of Justice has determined that going after those patients who use medical marijuana in accordance with state law is a low priority. Conversely, he said that anyone who sells marijuana commercially is subject to prosecution, even if the operation is licensed by the state.
But the ACLU pointed out that Burke never mentioned any possible prosecution of state workers whose sole role is processing permit requests. In fact, the legal papers cite an interview Burke did in May with Capitol Media Services.
"It's fair to read into my letter what I included and what I didn't,' Burke said at the time. "And if I didn't include state employees, I think that's telling in itself.'
Horne said even if there is no danger to state workers, there is still a legitimate reason to seek a federal court ruling.
"There's certainly an issue for distributors,' the attorney general said of Burke's memo. "He said they'll vigorously prosecute them.'
Horne said the state has a legitimate interest in knowing whether anyone who is operating under Arizona's medical marijuana law, state employee or not, could end up facing federal charges. He said what the state wants is not an advisory opinion from the court but a declaratory judgment, something courts are specifically authorized to do, even if no one is facing imminent prosecution.
"They could have said you can only sue when the damage happens,' Horne said.
"They didn't,' he continued. "They said you can bring a declaratory judgment action to get the court to declare the rights of the parties.'
Supporters of the medical marijuana laws are moving on other legal fronts to get the law fully implemented and have dispensaries operating. Various would-be dispensary owners are asking state judges to force Humble to start processing applications, saying he is required to do that under Arizona law unless or until that law is invalidated.