Governor pressed to order halt to marijuana cultivation cards
PHOENIX -- One of the major foes of the state's medical marijuana law wants Gov. Jan Brewer to order the state health department to stop issuing cards allowing patients to obtain and grow the drug.
Carolyn Short noted that Brewer has blocked the agency from processing applications from those who want to run the dispensaries that the 2010 voter approved initiative requires to be set up to sell the drug. Brewer said she feared that state workers could be charged under federal law with being involved, even peripherally, with distributing marijuana.
Yet the governor has allowed state Health Director Will Humble to continue to certify certain individuals as legally able under Arizona law to possess the drug. So far, more than 13,000 such cards have been issued.
Short, who chairs Keep AZ Drug Free, said she fails to see the difference.
In both cases, she said, state workers are involved in helping people obtain marijuana. And Short, who is an attorney, pointed out that the possession, sale and distribution of the drug remains illegal under federal law.
"We have our state employees violating federal law,' she said.
Gubernatorial press aide Matthew Benson did not dispute Short's legal analysis of federal drug statutes.
But he said Brewer has a good reason to keep issuing those cards: It would not have made a difference had she ordered a halt to the practice.
The voter-approved measure spells out that those who get a doctor's recommendation are entitled to state-issued ID cards which permit them to obtain up to 2 1/2 ounces of marijuana every two weeks. It is those cards that Short wants halted.
Benson said that would do no good.
"The patient cards are self-executing,' he said. Benson pointed to a provision in Proposition 203 which says the failure of the health department to issue a card within 45 days of a valid application means it is presumed to be approved.
Complicating matters is that the law says that patients can grow their own marijuana if they are not within 25 miles of a state-regulated dispensary. And with the health department refusing to even accept applications, there are no dispensaries, essentially meaning all users can become marijuana cultivators.
"In essence, we would have the same number of individuals out there
self growing' as now, Benson said. But the difference would be that, absent state-issued ID cards, giving the health department information on each user, there would be "no means for the state to keep track of who is legitimate and who is not.'
Anyway, Benson said, the risk of state employees being prosecuted for processing cards for individual users appears to be minimal. He said the U.S. Department of Justice has indicated it is more interested in going after those who distribute marijuana than patients who use it.
Attorney General Tom Horne, who is asking a federal judge to determine if state workers have liability, said the distinction Brewer is making is justified.
"The letter from the U.S. Attorney said they would vigorously prosecute anyone involved in the distribution of marijuana and that compliance with state (medical marijuana) law would be no excuse,' he said. Horne said that means the state has to be "very wary' in anything expediting the ability to set up dispensaries which, by definition, are involved in distributing marijuana.
Issuing cards to individuals permitting them to use marijuana for medical reasons, Horne said, has nothing to do with distribution.
Short agreed that individual users are not being given permission to distribute marijuana. And she even acknowledged that just because marijuana possession is a federal crime does not preclude Arizona from deciding the medical use of it cannot be prosecuted in state courts.
"But our state employees still can't issue licenses to smoke it,' she said.
Short brushed aside the self-executing feature of the ID cards.
She believes that a federal judge eventually will rule in Horne's lawsuit that the Arizona law having the state license dispensaries conflicts with federal statutes. And while the lawsuit does not ask for a ruling on those patient ID cards, Short said the court will have no choice but to void the entire Proposition 203.
"The judge is not going to piecemeal this law that was approved by voters,' she argued.
Short said voiding the part allowing licensing of dispensaries would leave the state with a system where thousands of marijuana users are entitled to grow their own drugs, in their own homes, in the middle of residential neighborhoods. She said that's a far cry from the plan that voters approved which included a system of well-regulated dispensaries.
Horne's marijuana lawsuit heads back to federal court in December when Judge Susan Bolton considers a motion by the American Civil Liberties Union and others to throw it out.