BY LINDA BENTLEY | MAY 25, 2011
Governor Brewer directs AG to file suit to determine legality of AMMA
PHOENIX – As municipalities grapple with the rules, zoning ordinances and mandates of the Arizona Medical Marijuana Act (AMMA), Governor Jan Brewer announced Tuesday that she has directed Attorney General Tom Horne to file suit by the end of the week seeking a declaratory judgment from a federal court regarding the legality of the AMMA.
While the Arizona Department of Health Services (ADHS) has worked to issue rules to implement the voter-approved AMMA, a recent letter from U.S. Attorney Dennis Burke warning ADHS that marijuana remains a Schedule I Controlled Substance, meaning “growing, distributing and possessing marijuana, in any capacity, other than as a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities.”
Burke also declared that his office would “vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law.”
This has placed municipalities in a strange predicament of the state mandating they permit cultivation and/or dispensing of medical marijuana, which, in the eyes of the federal government, could be construed as aiding and abetting illegal activity.
Brewer said the U.S. Attorney’s letter raises significant questions about the legality of both the AMMA and related Arizona Administrative Code provisions. She was particularly concerned about state employees being vulnerable to charges while administering the AMMA, including the issuance of dispensary licenses and qualified patient registration cards.
Burkes’ letter also calls into question the ability of the Arizona Department of Public Safety to maintain or qualify for federal grant monies, the department’s enforcement activities, federal task force actions and the status of DPS employees who could be in violation of federal law while participating as consumers in the AMMA.
If it is determined the AMMA violates federal law, a declaratory judgment action will render the AMMA void.
Brewer said, “The state of Arizona has worked to follow the will of the voters. But I won’t stand aside while state employees and average Arizonans acting in good faith are unwittingly put at risk. In light of the explicit warnings on this issue offered by Arizona’s U.S. Attorney, as well as many other federal prosecutors, clarity and judicial direction are in order.”
