PHOENIX -- The state cannot try to shut down medical marijuana clubs because Gov. Jan Brewer is ignoring the will of voters, an attorney for one of the clubs is arguing.
Michael Walz said he is not conceding that the clubs, where dues-paying members can get free marijuana, are operating outside the scope of the medical marijuana law approved by voters last year. Walz and lawyers representing other clubs believe their operations fit within an exception.
But Walz said that the state has no right to go to court to try to shut the operations down.
"The voters passed Proposition 203 that required the state to set up a number of dispensaries, about 126,' he said Tuesday. Those dispensaries were supposed to be where individuals with certain medical conditions could legally obtain up to 2 1/2 ounces of the drug every two weeks.
But Brewer along with state Health Director Will Humble are refusing to even accept applications to run the dispensaries.
The governor said she feared that state employees who would process the forms could be subject to criminal prosecution under federal laws which make it a crime to even facilitate someone obtaining illegal drugs. And marijuana remains illegal under federal statutes.
Brewer also directed Attorney General Tom Horne to file suit, asking a federal judge if Arizona can implement its medical marijuana law -- including licensing dispensaries -- despite the federal laws. But in the meantime, no dispensaries are being licensed even though there already are close to 11,000 Arizonans who have state-issued permits to purchase and use marijuana for medicinal purposes.
"She's refusing to follow the law without any legal excuse,' said Walz who represents the Arizona Compassion Club. "That's just not tolerable.'
What it is, however, is a legal opening for Walz to try to have the state's lawsuit to shutter his client's club and others thrown out.
"The law recognizes that, in certain situations, that when the government acts improperly, that they can't get the relief that they are seeking,' he said.
Beyond that, Walz is arguing to Maricopa County Superior Court Judge Dean Fink that it's the state's own fault that the clubs have opened their doors.
He said that his client would never have opened up a club in the first place had the state and its officials followed the voter-approved law in the first place.
"If there were 126 registered medical marijuana dispensaries in Arizona, all the defendant (club) would have no reason to exist,' he said.
"Medical marijuana patients deserve to have their medicine,' he said. And Walz said members of the club he represents have a "sincere desire' to help those patients.
"This is really the only way to do it,' Walz said.
Assistant Attorney General Lori Davis called Walz' contention "factually and legally incorrect.'
"The state has implemented the (medical marijuana) law to the extent it can,' she said. And Davis said Brewer "acted responsibly' in refusing to allow state health officials to process applications for dispensaries.
"She really didn't have a choice,' Davis said, what with the possibility that state workers could be prosecuted for violating federal law.
Davis said that, with the exception of licensing dispensaries, Brewer and state officials have complied with every other aspects of the voter-approved law. That includes adopting rules and regulations as well as issuing medical marijuana cards to patients who have a doctor's recommendation saying that they have a condition which could be treated with the drug.
The argument by the marijuana clubs is that they are simply providing homes for non-profit organizations that accept the donation of marijuana and seeds by people who grow their own, which is legal under Arizona law. These organizations then give away what they collect.
The state's lawsuit to shutter the clubs is based on the premise that the marijuana clubs, by charging a membership fee to get inside -- where the organizations and their give-away drugs are located -- are effectively selling marijuana. Only licensed dispensary operators, of which there are none, can do that.
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