Last week Arizona Governor Jan Brewer’s response to a letter from 13 Arizona County Attorneys that the Arizona Medical Marijuana Act was preempted by federal law was to say you legal types don’t know what you are talking about and “I am duty-bound to implement the AMMA.”  Now her lawyer says oops-e-dazey, not so fast.  In a press release issued today Arizona Attorney General Tom Horne said:

Arizona Attorney General Tom Horne issued the following statement in connection with an Opinion being issued today regarding the Arizona Medical Marijuana Act (AMMA) stating the law is pre-empted in part:

“I have received formal requests from State Representative John Kavanagh and Yavapai County Attorney Sheila Polk, as to whether the Arizona medical marijuana initiative is preempted by federal law. This past Friday, August 3rd, I received the same request from 13 of Arizona’s 15 county attorneys, including county attorneys of both political parties. The request from the 13 county attorneys stated: ‘your immediate action is requested in light of the pending licensing of dispensaries beginning on August 7th.’

The 13 county attorneys have clearly communicated their view that the AMMA is preempted by federal law.

I have taken seriously the request of the 13 county attorneys that immediate action is needed, and the Opinion is attached. The Opinion was prepared by professional attorneys entirely on the basis of legal precedent, without regard to policy considerations as to medical marijuana as an issue, and without regard to my views. This is a purely legal analysis, as is the duty of this office.

Two recent cases, one from California, and one from Oregon, hold that the state cannot ‘authorize’ actions that are forbidden under federal law. A state can, however, decriminalize marijuana under its own laws. These cases compel the Opinion being issued today.

The AMMA ‘authorizes’ dispensaries, and the growing of marijuana. Under the California and Oregon court decisions, those provisions would be preempted by federal law. However, the provisions of the AMMA that relate to patient and caregiver identification cards would not be preempted because they merely identify those individuals who are exempt from prosecution under state law for the possession or use of marijuana for medical purposes. The use of the cards for that purpose would not be preempted.

This is an Attorney General’s opinion, not a court order, and a court may or may not agree with this opinion. We expect that there will be a motion for accelerated resolution of this issue in a pending court case.

Accordingly, I have advised the Department of Health Services that the law does not prevent them from proceeding with the planned lottery on Tuesday, August 7, and the issuance of registration certificates. The receipt of a registration certificate does not give a certificate holder permission to open or operate a dispensary. Certificate holders must subsequently apply for approval to operate after having completed a number of additional requirements. Dispensary certificate holders are advised that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court, which I expect will be resolved in an accelerated manner.

Emphasis added.

Note to Prospective Arizona Medical Marijuana Dispensary Owners:  Read the last sentence of the above press release twice because it appears to me that the Arizona Attorney General is giving prospective Arizona medical marijuana dispensary owners legal advice.  Mr. Horne won’t stop the Arizona Department of Health Services from issuing dispensary registration certificates and moving forward with its rules that implement the parts of the AMMA that are preempted by federal  law, but he seems to suggest that a future court case will have more to say on the subject of the life or death of Arizona medical marijuana dispensaries.

Read the Attorney General’s August 6, 2012, Opinion, which states:

Is the Arizona Medical Marijuana Act (“the AMMA”) preempted by the federal Controlled Substances Act (“the CSA”)? . . . Yes, in part. . . . Because of federal prohibitions, those AMMA provisions and related rules that authorize any cultivating, selling, and dispensing of marijuana are preempted.

Emphasis added.

The following is the text of Will Humble’s blog post of today.  Mr. Humble is the Director of the Arizona Department of Health Services.

The AZ Attorney General issued an Opinion and a media release this afternoon about the Arizona Medical Marijuana Act.  The Opinion states, in part, that the voter approved Act is pre-empted by Federal Law – specifically the part that allows the cultivation, selling or distribution of marijuana.  It references 2 recent court cases that states cannot ‘authorize’ actions that are forbidden under federal law.

Today’s Opinion is just that, an Attorney General Opinion…  not a court order, and a court (or courts) may or may not agree.  Attorney General Horne has said in his media release today that he expects that there will be a motion for accelerated resolution of this issue in a pending court case.

The AGs Office also advised us this afternoon that today’s Opinion doesn’t prevent us from proceeding with tomorrow’s planned lottery on Tuesday, August 7, and the issuance of Registration Certificates- so we’ll be proceeding tomorrow as planned at 9 a.m.  I’m not sure how or whether today’s Opinion will impact the issuance of subsequent Operating Licenses for the folks that are allocated a Registration Certificate tomorrow morning.

 So, at least for now, we’ll take it one day at a time.

Player Update

For those who are keeping score at home, here’s the latest stats in the game of Arizona’s wack-a-mole medical marijuana dispensary industry:

  • Arizona Governor Jan Brewer:  Opposes the AMMA, but will  allow it to be implemented because “though the Department of Justice has prosecuted a select number of large medical-marijuana operations in California and other states, the federal government’s position remains unclear with regard to the AMMA and participation in this law by Arizona State employees.”
  • Arizona Attorney General Tom  Horne:  “AMMA provisions and related rules that authorize any cultivating, selling, and dispensing of marijuana are preempted,” but go for it prospective dispensary owners and Arizona Department of Health Services.
  • Will Humble, Director of the Arizona Department of Health Services:  “The AGs Office also advised us this afternoon that today’s Opinion doesn’t prevent us from proceeding with tomorrow’s planned lottery on Tuesday, August 7, and the issuance of Registration Certificates- so we’ll be proceeding”
  • Gila County Attorney Daisy Flores:  “Arizona voters determined that dispensaries should be permitted if in compliance with our Arizona law, as county attorney, I must respect the will of the people.”
  • Arizona Attorney Ryan Hurley:  “even in California, where there is a lot of uncertainty, these notions that the sky is going to fall just don’t hold up.”
  • Arizona Republic columnist E. J. Montini:  “federal authorities, who have expressed no interest in prosecuting medical-marijuana cases”
  • 13 Arizona County Attorneys:  The AMMA is preempted by federal law.
  • Former U.S. Attorney for the District of Arizona Ann Birmingham Sheel:  “compliance with the AMMA and Arizona regulations will not provide a safe harbor or immunity from federal prosecution for anyone involved in the cultivation and distribution of marijuana. . . . state employees who conduct activities authorized by the AMMA are not immune from liability under the CSA.”
  • Former U.S. Attorney for Arizona Dennis Burke:  “The United States Attorney’s Office for the District of Arizona (“the USAO”) will continue to 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. . . . The public should understand, however, that even clear and unambiguous compliance with AMMA does not render possession or distribution of marijuana lawful under federal statute.”
  • U.S. Department of Justice:  “The federal government will ‘vigorously enforce’ federal laws against those who ‘operate and facilitate large marijuana production facilities and marijuana production facilities involved in the cultivation, sale and distribution of marijuana, even if purportedly for medical purposes’.”

Half Time Score

AMMA Dispensaries Good Team: 5.5
(1 each for Gov. Brewer, Will Humble, Daisy Flores, Ryan Hurley & EJ Montini + .5 for AG Horne)
vs.
AMMA Dispensaries Bad Team:  115.5
(.5 for AG Horne + 13 county attorneys + 2 former U.S. attorneys + 100 because the DOJ is the DOJ).