Arizona Republic: “An applicant for a medical-marijuana dispensary and cultivation site has sued Maricopa County, accusing the county of purposely stalling action on its application to prevent it from seeking a state operating license. The lawsuit by White Mountain Health Center Inc. alleges the county would not certify or reject its registration certificate, one of the Arizona Department of Health Services’ first requirements for obtaining a dispensary license. . . . Based on his analysis, [Arizona County Attorney Bill] Montgomery said, other local jurisdictions that allow medical-marijuana dispensaries should be subject to federal prosecution.”
Arizona Republic: “Two Arizonans lent a medical-marijuana company in Colorado $500,000, but the company didn’t pay them back. So, what did they do? They sued, of course. But instead of forcing the company to pay back the loan, a Maricopa County Superior Court judge told the two Valley business partners they were out of luck as far as he was concerned.”
This story mentions KEYTLaw attorney Richard Keyt, the creator of this website, and says “Keyt wrote that the ruling could mean ‘that people who enter into contracts that relate in any way to Arizona medical marijuana will have to hope the other side to the contract satisfies his/her/its obligations because it may not be possible to sue for breach of contract and get a judgment against the party who defaults’.” Keyt broke this story with his May 7, 2012, article called “Maricopa County Superior Court Ruling May be Last Nail in the Coffin of the Unborn Arizona Medical Marijuana Dispensary Industry.”
Arizona Republic: “Medical-marjiuana dispensaries will have to employ a medical director at their operations, as state health officials require, a Maricopa County Superior Court judge has ruled. The non-profits could begin opening this summer. Judge Richard Gama’s May 1 decision is an important one because it could prevent abuse of medical marijuana, said Will Humble, director of the Arizona Department of Health Services.”
The following is what Will Humble said about the court’s decision in this case:
“One of the outstanding legal uncertainties regarding our implementation of AZ Medical Marijuana Act has been the Compassion First v. Brewer lawsuit that challenged our authority to require future dispensaries to have a Medical Director. We’ve always thought dispensary medical direction was a key component to making sure that future dispensaries act in the best interest of patients and prevent recreational diversion. After a judge’s ruling today, it looks like we’ll be OK.
Today a Maricopa Superior Court judge denied the Plaintiffs’ “Motion for Leave” to Amend their previous Complaint (which the court invalidated some of our dispensary selection criteria). The Compassion First were attempting to re-open the case to challenge our requirement that dispensaries have a medical director.
In his opinion (that largely tracks our argument), the judge denied their Motion, finding that the Plaintiffs failed to provide an adequate basis for declining to bring the medical director challenge in their initial complaint and that we (and the public) would be unduly prejudiced if the Court were to grant their Motion. Of course, the Compassion First plaintiffs could always appeal- but (for now) the upshot is that we can require future dispensaries to have medical direction.”
Maricopa County Superior Court Ruling May be Last Nail in the Coffin of the Unborn Arizona Medical Marijuana Dispensary Industry
On April 17, 2012, Maricopa County, Arizona, Superior Court Judge Michael R. McVey signed a Judgment of Dismissal that could be the death blow to Arizona’s fledgling medical marijuana dispensary industry. The case is Michele Rene Hammer v. Today’s Health Care II, a Colorado corporation (“THC”). Although the judge’s decision has not yet been appealed and may not be appealed, the legal significance of the case cannot be ignored by anybody who is considering becoming involved in a prospective or actual Arizona medical marijuana dispensary or anybody who is a party to or may become a party to a contract that involves the growing, transporting, storing, infusing, processing, selling or dealing in any way with marijuana in Arizona.
Hammer v. Today’s Health Care II involves a very common situation. Michele Hammer and Mark Haile each loaned $250,000 to Today’s Health Care II, a Colorado corporation. Each lender and borrower signed a loan agreement that stated:
“Borrower shall use the loan proceeds for a retail medical marijuana sales and grow center.”
THC defaulted on both loans. Although the loan proceeds were to be used only in Colorado, a state where medical marijuana is legal, each lender sued in Maricopa County Superior Court to collect the amounts owed under the promissory notes signed by THC. The two cases (Hammer v. THC and Mark W. Haile v. Todays Health Care II) were consolidated. The plaintiffs and defendant filed motions for summary judgment. On April 17, 2012, the judge signed the Judgment of Dismissal in which he ruled that THC is not obligated to repay all or any part of either loan. Judge McVey stated:
“The explicitly stated purpose of these loan agreements was to finance the sale and distribution of marijuana. This was in clear violation of the laws of the United States. As such, this contract is void and unenforceable. This Court recognizes the harsh result of this ruling. Although Plaintiffs did not plead any equitable right to recovery such as unjust enrichment, or restitution, this Court considered whether such relief may be available to these Plaintiffs. Equitable relief is not available when recovery at law is forbidden because the contract is void as against public policy.”
Result: The borrower can keep the $500,000 and it has no legal obligation to repay the loans. The borrower does not get to keep all of the money, however, because it will be required to report $500,000 as taxable income on its 2012 federal income tax return. Forgiveness of a debt causes “discharge of indebtedness income” that must be reported to the IRS and taxed at the taxpayer’s marginal tax rate.
There is an equitable concept in the law called unjust enrichment. There are many cases where a court has ruled that even though the plaintiff could not prove a legal basis on which the plaintiff should be paid damages, a court of equity looking at all of the facts gave the plaintiff a judgment for money because the actions of the plaintiff caused the defendant to be unjustly enriched and it would not be fair for the defendant to keep the economic benefit bestowed on the defendant. Judge McVey wrote that he considered ruling in favor of the lenders on the basis of unjust enrichment, but that remedy is also denied when the contract involved is void as against public policy.
Judge McVey based his decision on the fact the purpose of the loan was for a purpose that is illegal under federal law. He did not examine whether the loans should be enforced because they were legal under state law. After all, collection of a loan arises from legal obligations and rights created under state law, not federal criminal law. It seems logical and lawful to me that the judge could have ruled in favor of the plaintiffs had he considered the legality of the loans under state law.
This case does not have the legal precedent of a written opinion from the Arizona Court of Appeals or the Arizona Supreme Court. Nevertheless Hammer v. Today’s Health Care II stands for a very important principle that everybody who is contemplating becoming involved with the Arizona medical marijuana industry cannot ignore, i.e.:
Unless and until an Arizona appellate court rules that contracts involving Arizona medical marijuana are enforceable under Arizona law (as opposed to unenforceable under federal law), any contract that has a purpose related to Arizona medical marijuana may be unenforceable and not worth the paper it is written on!
What Does the Case Mean to People Considering Becoming Involved in Arizona Medical Marijuana Dispensaries?
Until an Arizona appellate court reverses the result in this case it means that people who enter into contracts that relate in any way to Arizona medical marijuana will have to hope the other side to the contract satisfies his/her/its obligations because it may not be possible to sue for breach of contract and get a judgment against the party who defaults. This case should cause the following people to think twice or three times before getting involved:
- Landlords who lease to dispensaries. The lease may not be enforced. If a dispensary tenant defaults on the rent would a court evict the tenant or give the landlord a money judgment for damages for breach of the lease?
- Investors in dispensaries. Would the investment be treated the same as a loan with no legal way to force the dispensary to repay the investment or profits?
- Lenders who loan to dispensaries. This is the same facts as Hammer v. Today’s Health Care II. Why would any person or entity make a loan to a dispensary when there is a good chance a court would refuse to enforce the loan?
- Medical directors of dispensaries. What if the dispensary doesn’t pay for the doctor’s services?
- High paid employees or independent contractors. Are you willing to work and have the dispensary refuse to pay and dare you to sue?
The above list is not complete. If you are contemplating entering into any type of contract (oral or written) with a prospective or actual Arizona medical marijuana dispensary you are taking a risk that an Arizona court may rule that the contract is unenforceable.
You might think that the ultimate winner as a result of Hammer v. Today’s Health Care II is the Arizona medical marijuana dispensary. Perhaps, but I submit that dispensaries are actually the ultimate losers because this case stands for the proposition that it will be very difficult if not impossible for Arizona medical marijuana dispensaries to operate because prudent people and businesses will not want to contract with dispensaries until an Arizona appellate court rules that the contracts are enforceable under Arizona law.
Update: Richard Keyt and Judge McVey’s ruling are discussed in the following stories:
- ABC News: “$500,000 Medical Marijuana Loan Up In Smoke” quotes “Richard Keyt, a business attorney in Phoenix who runs a medical marijuana law web site.”
- Phoenix New Times reporter Ray Stern’s article called “Marijuana Dispensary Loan for $500,000 Doesn’t Need to be Paid Back, Judge Rules, Because Pot is Illegal Under Federal Law” in which he gives me credit for breaking this story.
- Arizona Republic story called “Arizona Medical-pot Ruling may Reverberate.”
- Fox News Chicago story called “Contracts with medical marijuana companies unenforceable, Arizona court rules.”
KPHO 5: “Strong allegations have been made against Gov. Jan Brewer, the Phoenix Police Department and other elected officials, who may have played a role in the raid of a medical marijuana club. The 2811 Club in Phoenix was raided on Oct. 12, 2011. . . . Five months later, the club is fighting back by filing a $5 million notice of claim that accuses elected officials of abusing their authority. Allan Sobol is the developer and promoter of Club 2811 and the man behind the potential lawsuit.”
Arizona Medical Marijuana Act’s 25-Mile Ban on Growing Pot Challenged in Lawsuit; Another Suit Seeks Different Rule Change
Phoenix New Times: “A new lawsuit over Arizona’s Medical Marijuana Act targets the provision that bans patients and caregivers from growing pot within 25 miles of an open dispensary. Bill Hayes, a marijuana activist and qualified patient who lives in Surprise, argues in a federal complaint filed yesterday that the provision violates the equal protection clause of the state constitution. . . . Hayes, who was a volunteer for the Arizona Compassion Club when we met him back in June, now runs the Arizona Cannabis Society, . . . In the other lawsuit we mentioned, philanthropist Gerald Gaines wants the court to throw out a DHS rule — the one that requires a licensed physician to be a medical director.”
Lawsuit Claims Prop 203 Provision Preventing Growing of Medical Marijuana within 25 Miles of a Dispensary is Unconstitutional
AZMMPS: “a ‘motion for a preliminary injunction and memorandum of law in support thereof’ was filed in the United States District Court for the district of Arizona which will send the Arizona Medical Marijuana Act back to Federal Court. The lawsuit, HAYES vs ARIZONA has Governor Brewer named along side the Director of the Arizona Department of Health Services Will Humble and Robert Halliday who is the director of the Arizona Department of Public Safety as well as Tom Horne the Arizona Attorney General. The Plaintiff is listed as Billy Hayes, the Co-Founder and former CEO of Arizona Cannabis Society, local medical marijuana advocate and also a well known medical marijuana cultivation consultant. The case itself is claiming a small portion of the Arizona Medical Marijuana Act (AMMA) is unconstitutional, the section in question is being referred to as the ’25 Mile Rule’ and Hayes is looking to have it removed from the Law.”
“That’s Not How Lawsuits Work:” Read Transcript of Federal Medical Marijuana Hearing That Smoked Jan Brewer’s Lawsuit
Phoenix New Times: “Followers of the highs and lows of Arizona’s Medical Marijuana Act should enjoy the newly released transcript of the federal court hearing that ended Governor Jan Brewer’s anti-pot lawsuit. The January 4 dismissal of Brewer’s lawsuit, which was clearly intended to thwart a new medical marijuana law, came after a December 12 hearing that didn’t go well for one of Arizona Attorney General Tom Horne’s lawyers. . . . [The Judge told Tom Horne’s lawyer] ‘That’s not how lawsuits work . . . . The plaintiff takes a position and doesn’t take two diametrically opposed positions. You have to advocate your position’.”
AZ Journal: “Governor Jan Brewer has asked the Arizona Department of Health Services (ADHS) to begin processing medical marijuana dispensary applications. ‘We’re working on those rules right now. The process is complicated by the fact that a lawsuit called Compassion v. Arizona is challenging the scope and constitutionality of our medical marijuana rules,’ said [Director of Arizona Health Services Will] Humble. ‘If that lawsuit is withdrawn or settled quickly, we could begin accepting dispensary applications this summer’.”
The judge ruled on January 16, 2012, that Compassion First, LLC, won its lawsuit against Arizona, but the Governor who is now 0 for 2 in medical marijuana litigation has 30 days to appeal the ruling.
Yuma Sun: “A state judge has ordered Gov. Jan Brewer to finally fully implement the 2010 voter-approved Medical Marijuana Act, saying she acted illegally in holding it up. Maricopa County Superior Court Judge Richard Gama rejected the governor’s argument that she has the discretion to delay enactment of parts of the law while she sought a ruling from another court about the liability of state workers under federal drug laws. ‘Defendants cite no authority for this proposition, and the court has found none,’ Gama wrote in his ruling made public Wednesday.”
Arizona Superior Court Nixes Some Stupid Department of Health Services Medical Marijuana Dispensary Requirements
Phoenix New Times: “Arizona needs to start up the 2010 Medical Marijuana Act as voters intended, but without several of the rules designed to restrict dispensary applicants, a judge has ordered. Maricopa County Superior Court Judge Richard Gama ruled on the Compassion First, LLC, lawsuit yesterday . . . .Gama nixed the rules that require dispensary applicants to:
* Have been an Arizona resident for three years
* Have filed personal income taxes in Arizona for the previous three years
* Have never before filed for personal or corporate bankruptcy
* Not be delinquent on child support, taxes, parking tickets, student loans or other unpaid debts to the government.
Those rules are ‘onerous and substantively alter the requirements of the Act,’ Gama wrote in his minute entry. ‘DHS cannot bootstrap substantive regulations of who may apply’…”
The following statements are taken from Judge Gamma’s Minute Entry dated January 17, 2012:
“DHS cannot bootstrap substantive regulations of who may apply onto its mandate that it consider such applications in a manner as to protect against diversion and theft. . . . The Court finds that DHS exceeded its statutory authority in promulgating these challenged regulations, and therefore they are invalid. . . .
IT IS ORDERED declaring the following regulations to be ultra vires and invalid:
R9-17-322(A)(2) (requiring applicant to have been an Arizona resident for three years);
R9-17-302(A)(4) (setting criteria that applicant have never filed personal or corporate bankruptcy);
R9-17-302(A)(1) (setting criteria that applicant has submitted Arizona personal income tax returns for previous three years);
R9-17-302(A)(2) (setting criteria that applicant is current on courtordered child support; is not delinquent in paying taxes, interest or penalties to the government; does not have an unpaid judgment to the government; and is not in default on a government issued student loan).
IT IS FURTHER ORDERED directing Defendants to implement the lawful provisions of the AMMA and, if necessary, to promulgate regulations that conform thereto.”
Results of Governor Brewer vs. the People of Arizona & Proposition 203 Lawsuits
People 2 – Brewer 0
Maybe the Gov needs to get a better lawyer.
Phoenix Business Journal: “Dispensary lawsuit presents hurdle for Arizona medical marijuana law. Arizona’s medical marijuana industry received a reprieve when Gov. Jan Brewer announced on Friday she would not continue to challenge the voter-approved medical marijuana law, but another lawsuit has put a kink in the process. A lawsuit filed in July by Compassion First LLC, a dispensary company, against the state and government officials in Arizona Superior Court is the next hurdle. Gerald Gaines, founder of Compassion First said he will not drop the lawsuit.”
The lawsuit is Compassion First, LLC vs. Arizona filed in Arizona Superior Court.
For more on Arizona Governor Jan Brewer’s decision to drop her lawsuit against the U.S. read “Arizona’s Brewer to Abandon Marijuana Lawsuit, Allow Dispensaries to Open,” “Gov. Brewer won’t refile lawsuit against US over implementation of Ariz. medical marijuana law,” “Brewer lifts hold on medical pot dispensaries process,” “AZ plans to begin issuing licenses for pot dispensaries.”
The following is the text of Arizona Governor Jan Brewer’s January 13, 2012, press release announcing she instructed the Arizona Department of Health Services to move forward with implementing Arizona’s medical marijuana dispensaries:
“The State of Arizona will not re-file in federal court a lawsuit that sought clarification that State employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical Marijuana Act (AMMA). Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a pending legal challenge to the Department‟s medical marijuana rules is resolved.
“I also have sent a letter to Ann Birmingham Scheel, Acting U.S. Attorney for Arizona, notifying her of the State‟s action at this time and – once again – seeking assurance and clarification as to the federal government’s position regarding State employee participation in the licensing or regulation of medical marijuana dispensaries.
“It is well-known that I did not support passage of Proposition 203, and I remain concerned about potential abuses of the law. But the State’s legal challenge was based on my legitimate concern that state employees may find themselves at risk of federal prosecution for their role in administering dispensary licenses under this law. Last week, to my great disappointment, the U.S. District Court of Arizona dismissed the State‟s lawsuit on procedural grounds and refused to provide clarity on the likely conflict between Proposition 203 and federal drug law.
“Remember how we got to this point. The State of Arizona was fully implementing the provisions of Proposition 203 last spring. That’s when Arizona was among a host of states that received letters from the U.S. Department of Justice threatening potential legal ramifications for any individual participating in a medical marijuana program, even in states where it had been legally approved. Specifically, the Arizona letter – dated May 2, 2011 – warned that growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities.”
“Would state employees at the Department of Health Services, charged with administering and licensing marijuana dispensaries face federal prosecution? This was the basis for calling a ‘time out’ in order for the State to seek a straightforward answer from the court. With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.
“Know this: I won‟t hesitate to halt State involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law.”
For Prospective Arizona Medical Marijuana Dispensary Owners
Stay tuned. I will be watching the ADHS for the new dispensary application process and deadlines. If you have not yet formed your nonprofit entity to seek a license to operate an Arizona medical marijuana dispensary, I want to form it for you. Call me at 602-906-4953, ext. 1 if you have questions.
Sobol Files Motion to Enjoin Governor From Using State Funds to Impede Arizona Medical Marijuana Act
The following is the text of Alan Sobol’s January 10, 202 press release:
Allan Sobol the aggressive marketer of the Arizona Medical Marijuana Industry, filed a motion in Maricopa County Superior Court today asking Judge Dean Fink, to impose a preliminary and permanent injunction against Arizona Governor, Jan Brewer and Will Humble, Director of the Arizona Health Department . If granted by the Court the Injunction would enjoin the Governor and Humble from expending any public funds to impede, delay or in any way whatsoever, prevent the full implementation of the of the Arizona Medical Marijuana Act.(AMMA). Sobol says, “It is an outrageous abuse of the public’s trust, and violation of her constitutional obligations for the Governor to abuse public funds to overturn the will of the voters. This malfeasance must be stopped! Public policy and legal precedent, mandates that the Governors actions be brought into check with the will of the voters. This motion seeks to enjoin the Governor from using public funds to impede, or delay the AMMA.
Filed in May, Brewer’s federal complaint was one of three cases she filed to limit the AMMA. Brewer argued that state officials fear federal prosecution for implementing the law, despite Arizona’s former top federal prosecutor saying publicly the federal government has “no intention of targeting or going after people who are implementing or who are in compliance with state law.” The U.S. Justice Department federal even filed a motion to dismiss the case. Brewer also filed two additional cases in State Superior Court attempting to limit access to patients.
The Arizona Voter Protection Act, enshrined in our state constitution, w as specifically meant to preclude the Gov ernor and her administration from stopping a voter initiativ e, passed by a majority of the voters in Arizona, from going int o effect. While the executive branch seeks to disgu ise its efforts as a civil complaint, if the cou rt granted the requested relief, the effect will be the same: Qualified patients would have been denied their rig ht to obtain voted approved medical marijuana.
In last weeks ruling, U.S. District Court Judge Susan R. Bolton said there is no genuine threat of imminent federal prosecution of state officials who carry out the law. While the Judge did grant the Governor thirty days in which to amend her compliant, Judge Bolton, nevertheless stated in her Order that she is “unconvinced” that the State could correct the defects in the case. The Judge did focus on the “ripeness issue”, a point driven home by ACLU attorney Ezekiel Edwards.
According to a spokesperson for the Governor, Brewer is intending to refile her case to Stop the Medical Marijuana Act.
The Arizona Association of Dispensary Professionals, llc (AADP) represented by attorney Thomas Dean, was the first defendant to challenge the Governors complaint. AADP is Arizona’s largest marijuana trade organization representing the interest of over 10,000 members. AADP believes the Governor’s complaint was disingenuous and frivolous and a concerted scheme with other government officials who conspired to thwart the will of the Arizona voters and intentionally delay, impede, and otherwise prevent the AMMA from being implemented. Allan Sobol, President of AADP, has repeatedly stated, “This is not about marijuana use, this is about government abuse. Whether you are pro or con marijuana you need to be alarmed with the Governors underhanded attempts to over ride the will of the Voters”.
As Governor, Brewer is vested with the supreme executive power of Arizona and is responsible for the faithful execution of all laws, including the Arizona Medical Marijuana Act. The mask has now come off the Governors face, Sobol says, any guise that the Governors legal efforts were truly intended to protect state employees few out the door when the Federal Court dismissed her case. The administration seeks to destroy any hope of a viable Medical Marijuana program, which reveals its underlying contempt for the will of the people and the rule of law.
Arizona voters in 2010 passed Proposition 203, which allows seriously ill patients in Arizona to use marijuana as medicine with a doctor’s recommendation. The law allows marijuana to be distributed by tightly regulated clinics to patients with state-issued registry cards and exempts from state prosecution not only seriously ill Arizonans but also their caregivers and a limited number of certified, non-profit medical marijuana dispensaries that will serve qualifying patients.
The state has issued approximately 19,000 medical marijuana cards to qualified patients collecting almost 3 million dollars in fees, but has fraudulently failed to provide a way, consistent with the AMMA, for patients to obtain their voter approved medication .
The entire text of Sobol’s Motion can be found at: Seed2success.com/enjoingovernor.html
Attorney Tom Dean can be reached at: 602-635-4990
For additional information or questions please contact:
Allan Sobol, President
One definition of insanity is doing the same thing over and over and expecting to get a different result. Well apparently here we go again.
Phoenix New Times: “Brahm Resnik of Channel 12 News (KPNX-TV) just tweeted that Governor Jan Brewer ‘indicates she will refile lawsuit to block medical marijuana law.’ . . . If Brewer does plan to refile the suit, perhaps she’ll finally take the position that she’s avoided taking since May — that she believes the medical-pot law is illegal and should be struck down. Of course, taking such a stance would only sink her finger deeper into the eye of voters . . . . Brewer and Horne, die-hard opponents of medical marijuana that they are, may have other tricks up their sleeve. They probably figure there’s more than one way to skin the voters.”
You would think that the Gov and her mouth piece would be embarrassed about their recent humiliation in federal court and stop trying to invent a lawsuit they can use as the basis for not enforcing and implementing Arizona’s medical marijuana laws that were approved by the Arizona voters when they passed Proposition 203 in November of 2010. Tom Horne is the top attorney for the State of Arizona. He has a large highly paid staff of attorneys who work for him and they have years of legal experience. Together Mr. Horne and his crackerjack staff researched the law and used all of their considerable legal brain power to draft the complaint and sue the U.S. because – this is where it gets murky – something the federal government has never done (i.e., prosecute state employees who implement medical marijuana laws in states that approved the use of medical marijuana) might happen maybe if perhaps possibly who knows when some time in the future. They didn’t even take a side for or against the lawsuit they filed.
Governor Brewer and Attorney General Horne took their best shot and the federal judge thumbed her nose at them and threw the lawsuit out at the first opportunity in response to a motion to dismiss filed by the ACLU. For non-lawyers a motion to dismiss is where a defendant in a lawsuit says to the judge even if EVERYTHING THE PLAINTIFF SAYS IS TRUE THE PLAINTIFF DOES NOT HAVE A CASE!!! Judge Bolton threw out the lawsuit because she said the State did not have a basis to file the lawsuit. Why didn’t the Attorney General and his attorneys know they were filing a lawsuit that should never have been filed? Perhaps some heads should roll in the AG’s office because if your job is to sue on behalf of Arizona and you are not smart enough to recognize a bogus lawsuit when you see one something is terribly wrong.
Consider the significance of losing the motion to dismiss. Judge Bolton in effect gave Attorney General Horne an F in filing lawsuits. Rather than being embarrassed by their incompetence and apologizing for wasting the State’s time and money and that of the defendants, the co-conspirators in not enforcing Arizona medical marijuana laws (Governor Brewer and Attorney General Horne) apparently will regroup and dream up another reason to not enforce Arizona law. Maybe their goal now is to show the people of Arizona they are not incompetent.
KPHO.com: “A medical marijuana dispensary may be coming to a neighborhood near you. After a federal judge’s ruling yesterday, card carriers said they are one step closer to getting what they want. ‘By the thousands, hundreds of thousands, we see people come in here every day,’ said We Grow Owner, Sunny Singh, ‘We are not a dispensary. We don’t have any marijuana here.’ . . . ‘Any person or business, who is dealing in medical marijuana, is trafficking in marijuana and that’s a class two felony,’ [Maricopa County Attorney Bill] Montgomery said.”
The County Attorney conveniently forgot to mention that he was talking about federal law, not Arizona law which is his job to enforce. He should have said “Any person or business, who is dealing in medical marijuana and compliance with Arizona’s medical marijuana laws is NOT trafficking in marijuana and DOES NOT COMMIT A CRIME UNDER ARIZONA LAW.
Phoenix New Times: “Governor Jan Brewer and her legal counsel will study today’s dismissal of her lawsuit against the medical marijuana law while keeping a ban on dispensaries, a spokesman says. . . . It was a thinly disguised attack on a state law that they didn’t like. It also exposed Brewer as a hypocrite on the issue of states’ rights. Her attack on medical marijuana took place even as she and Horne spent taxpayer dollars defending two state anti-illegal-immigrant laws that the federal government claims are unconstitutional. . . . Brewer’s position, then, assumes a truly silly idea: That Will Humble, director of the state DHS and his underlings will be prosecuted by the feds for following state law. This is a straw-man argument, though, apparently intended as a tactic in Brewer’s fight against the pot law.”
Arizona Governor & Attorney General Wiping Egg off Faces after Federal Judge Throws Out their Manufactured Lawsuit over Medical Marijuana
Arizona Republic: “A federal judge dismissed Arizona’s medical-marijuana lawsuit Wednesday, saying the state couldn’t show workers were at risk of prosecution for following the voter-approved state law. U.S. District Court Judge Susan Bolton’s ruling removes the obstacle that Gov. Jan Brewer and state health officials said prevented the state from issuing permits for medical-pot dispensaries. Brewer spokesman Matthew Benson said the governor would consult with Attorney General Tom Horne before deciding whether to appeal.”
Phoenix New Times: “Governor Brewer’s Lawsuit Against Medical Marijuana Law Dismissed by Federal Judge. . . . In her new ruling, Bolton notes that ‘no credible evidence’ exists that state workers are at imminent risk of prosecution by administering the pot program. . . . We’ll contact the Gov’s office to find out if their mission to thwart the will of voters has a Plan B.”
Tucson Weekly: “Well, it seems Gov. Jan and her crew may have toppled their medical-marijuana man, and they might be out of the game. A federal judge seemingly ripped the state a new one on Dec. 12 in the first oral arguments in the governor’s lawsuit that stalled Arizona’s MMJ program.”
Following Federal Judge’s Advice that She Not Vote Present in Her Medical Marijuana Lawsuit Arizona Governor Brewer Choses to Oppose Voters
Yuma Sun: “Gov. Jan Brewer decided Wednesday to ask a federal judge to overturn a key portion of the state’s voter-approved medical marijuana law. The move comes two days after Bolton told attorneys for the state she would throw out Brewer’s original lawsuit which simply asked the judge to decide if state employees can be prosecuted under the federal Controlled Substances Act for processing permits. Bolton said the state has to pick a side: Either federal law trumps last year’s initiative, or the state can implement its law despite federal statutes. . . . Brewer has chosen the former position, even though that’s contrary to what voters mandated.”
Governor Brewer has taken the exact opposite position with respect to Arizona’s Proposition 1070, the anti-illegal immigration law that will be considered by the United States Supreme Court. In the SB 1070 case Governor Brewer is asking the Supreme Court to rule that Arizona can implement its law despite federal statutes. Isn’t it the job of the Governor to enforce the laws of Arizona rather than making a personal choice as to which laws she will enforce?
Arizona Republic: “U.S. District Court Judge Susan Bolton tore apart the state’s medical-marijuana lawsuit Monday, saying Arizona has to pick a side in the conflict over state and federal law. Bolton stopped short of dismissing the case, saying she would issue a ruling later. But she told Assistant Attorney General Lori Davis she would throw it out unless the state decides whether or not to support its own law. ‘That’s how lawsuits work,’ Bolton said. ‘The plaintiff takes a position’.”
Phoenix New Times: “Governor Jan Brewer’s lawsuit against Arizona’s medical marijuana law took a beating today in federal court, where a judge told the state’s lawyers to pick a side on the issue. . . . Brewer and Horne, however, don’t have the chutzpah to actually argue against the voter-approved law — something that could be politically dangerous. . . . Their lawsuit relies on the creation of 20 fictitious defendants — 10 who believe the new state law violates federal law, and 10 who don’t believe it — to bolster their position that a dispute exists. But Bolton said today that she planned to dismiss all of the fictitious defendants, adding that the tactic cannot ‘persist’ in federal court. Arizona would need to choose which side it’s on before the suit can proceed, Bolton told Lori Davis, an assistant attorney general.”
East Vally Tribune: “A federal judge chided Attorney General Tom Horne Monday, saying he was asking her to do his job: advising state agencies on the law. . . . ‘You don’t come to court and say, ‘Well, this our best advice, you give it a shot,” she told Assistant Attorney General Lori Davis. Davis protested that the state finds itself in ‘an impossible position,’ being told by voters to license dispensaries but fearing that the workers who process the applications can be charged with helping facilitate the distribution of marijuana. She said Bolton should tell the state – and the governor – whether it’s OK to proceed. ‘That’s what the AG is for, Bolton responded. ‘It’s not the courts that give (legal) advice’.”
East Valley Tribune: “Attorneys for would-be marijuana dispensaries asked a state judge Wednesday to order Gov. Jan Brewer to follow the law approved by voters and begin issuing licenses as the statute directs. ‘I don’t care whether she likes it or doesn’t like it,’ Ty Taber told Maricopa County Superior Court Judge Richard Gama. ‘Her sole job and responsibility is to implement that act.’ Assistant Attorney General Lori Davis did not dispute that last year’s voter-approved law requires the state Department of Health Services to license about 125 dispensaries where certified medical marijuana users can obtain the drug. And she conceded that Brewer has, in fact, directed the Department of Health Services not to issue any of those licenses.”
Sedona Red Rock News: “While medical marijuana possession and use was legalized by voters in November 2010, one local woman said she was fired earlier this year simply for being a cardholder. Now she is suing Verde Valley Community Hospice, a company located in Old Town Cottonwood, for wrongful termination and defamation.”
Probation Officer Fired for Statement in Support of Marijuana Legalization, Launches Lawsuit With ACLU’s Help
Phoenix New Times: “Maybe one reason marijuana prohibition is still in effect is this: Law officers face being fired merely for stating publicly their views on legalization. That was the case for Joe Miller, a former Mohave County probation officer whose supervisors terminated him after his name appeared on a letter — with 31 other law officers — in support of the 2010 California ballot proposal that would have made pot as legal as booze and cigarettes. Now Miller is suing for damages in a federal complaint with the help of the American Civil Liberties Union of Arizona.
East Valley Tribune: “The lawyer for one of the state’s medical marijuana clubs accused the governor and state attorney general on Friday of conspiring to undermine the voter-approved initiative making the drug legal for some ill people. ‘We believe that there’s a clear and blatant pattern that has transpired over the last few months,’ said Thomas Dean. He said that directly includes both Gov. Jan Brewer and Attorney General Tom Horne. ‘There’s plenty of evidence that was done in a way that was conspiratorial, fraudulent,’ Dean told Maricopa County Superior Court Judge Dean Fink.”
Azfamily.com: “In what could be a first-of-its-kind case here in Arizona, a nurse is planning to file a wrongful termination lawsuit, claiming she was fired for being a medical-marijuana card holder. Her former employer says that’s not exactly what happened. Esther Shapiro said she was fired two months ago after telling her bosses at the Verde Valley Community Hospital in Cottonwood that she held a medical-marijuana card as a result of Arizona’s recently passed and much-debated medical-marijuana law.”
Pure Medical Marijuana & Wellness Center II Sues Fountain Hills Over Medical Marijuana Dispensary Zoning
Arizona Republic: “A non-profit corporation has filed a lawsuit against Fountain Hills, claiming the town’s medical-marijuana ordinance ‘unreasonably restricts’ potential locations for a dispensary. Pure Medical Marijuana & Wellness Center II filed the civil suit in Maricopa County Superior Court. The town and Town Council are named as defendants. . . . One medical-marijuana dispensary will be allowed within the town”
Query: Are Pure Medical Marijuana & Wellness Center II, Inc., and its attorney unaware that the medical marijuana industry in the United States is dead. See “Medical Marijuana Dispensaries are Dead in the United States.”
Los Angeles Times: “Appellate court voids Long Beach marijuana dispensary law. The panel rules that the city authorized distribution of pot in violation of federal law. The decision could force Los Angeles to rewrite its medical marijuana ordinance. In a decision that could upend the way California cities regulate medical marijuana, a state Court of Appeal has ruled that Long Beach’s ordinance regulating dispensaries violates federal law.”
Read the California Court of Appeals decision in Ryan Pack vs. City of Long Beach.
Nearly a year after being approved by voters, the Arizona Medical Marijuana Act has proven popular with patients, yet much of the Act remains on rocky legal ground.
Six active lawsuits confirm early predictions that such a significant social policy change would engender substantial court action. What wasn’t known was how patients, caregivers and the business community serving these individuals would respond when the State once again attempted to scuttle the will of the voters.
In January of this year Attorney General Tom Horne offered anti-Prop 203 leader Carolyn Short a gift: he could disembowel significant portions of the Act by pitting Arizona’s new law against the Department of Justice, the Drug Enforcement Administration, and last but not least, the Controlled Substance Act of 1970, Nixon’s reaction to the social unrest being fomented by the era’s youth – and still the underpinning of Federal law. Once Governor Jan Brewer finally browbeat Arizona Department of Health Services Director Will Humble into being the State’s Plaintiff, Horne petitioned the federal court for a “Declaratory Judgement” stating that the Act did or did not conflict with federal statutue – which of course it does, as it has in every state with a medical marijuana law.
Horne had to know his abuse of the judicial system wouldn’t yield a favorable ruling, but he also knew this: the suit would create confusion and doubt about the Act, weakening public support for a ballot initiative that won by only the slimmest of margins. This would buy opponents time to create a “sky is falling” narrative, dutifully reported by an obedient press: that “medical” marijuana is a sham, a cover for what in actuality is a recreational users program; that dispensaries would attract crime and blight to neighborhoods; that cartels would move in under the guise of being legal dispensaries; and, that medicating patients would cause trouble in the workplace, etc, etc ad nauseum.
This storyline failed during the 2010 election cycle, but could now have the effect sought by opponents. Why? Because due to the Act’s passage and the government’s failure to fully stop its implementation, there are patients legally using marijuana for medicinal purposes, patients and caregivers cultivating crops, and compassion clubs and collectives opening up across the State to provide patients with access to the medicine they voted for – all activities in which just a few wrong steps, misjudgements, foolish or criminal acts might be enough to turn the tide of public opinion towards the opponent’s desired goal – repeal of the Act.
Unsurprisingly, some regretable incidents have occurred. The press, rarely missing an opportunity to cast MMJ in a bad light, reports each incident with just enough objectivity to mask its underlying Reefer Madness bias, confirming the worst fears of opponents while stirring doubt among casual supporters of Prop 203 last November.
So,we have a hostile government (with the Legisature reconvening in January), media outlets continually sensationalizing the subject, and well-connected private citizens whose overriding life goal is re-criminalizing personal behaviors we’ve just determined should be legal.
What is IN our favor is significant, if utilized with direction and purpose. Raw assets include 13,000+ patients and caregivers, whose numbers grow daily; responsible business owners whose fledgling enterprises are starting to bear fruit; a nationwide network of supporting advocates who have been down this same rough road; and, the knowledge that a majority of Arizonans from across the political spectrum support the right of patients to have this medicine if they so choose.
Next: An actionable plan for advocates.
[Note] Although many know me as an insurance agent providing coverage for compassion clubs and grows, in a former life I worked ten years for an elected official. My political experience also includes advising local and state candidates and non-profit lobbying. From these experiences I learned that even underdogs can win – but only if they are in the game.
The following is a list of the six lawsuits now pending in Arizona courts that involve Arizona’s medical marijuana laws enacted as a result of Proposition 203.
1. Arizona vs. United States – U.S. Federal District Court
Plaintiffs: STATE OF ARIZONA; JANICE K. BREWER, Governor of the State of Arizona, in her Official Capacity; WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; ROBERT C. HALLIDAY, Director of the Arizona Department of Public Safety, in his Official Capacity
Plaintiffs’ Attorneys: THOMAS C. HORNE, Attorney General, Firm Bar No. 14000; Kevin D. Ray, No. 007485; Lori S. Davis, No. 027875; Aubrey Joy Corcoran, No. 025423; Assistant Attorneys General; 1275 West Washington Street; Phoenix, Arizona 85007-2926; Telephone: (602) 542-8309; Facsimile: (602) 542-8308; Email: EducationHealth@azag.gov
Defendants: UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; ERIC H. HOLDER, JR., Attorney General of the United States of America, in his Official Capacity; DENNIS K. BURKE, United States Attorney for the District of Arizona, in his Official Capacity; ARIZONA ASSOCIATION OF DISPENSARY PROFESSIONALS, INC., an Arizona corporation; JOSHUA LEVINE; PAULA PENNYPACKER; DR. NICHOLAS FLORES; JANE CHRISTENSEN; PAULA POLLOCK; SERENITY ARIZONA, INC., an Arizona nonprofit corporation; HOLISTIC HEALTH MANAGEMENT, INC., an Arizona nonprofit corporation; JEFF SILVA; ARIZONA MEDICAL MARIJUANA ASSOCIATION
2. Arizona vs. The 2811 Club, LLC – Arizona Superior Court
Plaintiffs: STATE OF ARIZONA and WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity
Plaintiffs’ Attorneys: THOMAS C. HORNE, Attorney General, Firm Bar No. 14000, Michael Tryon (#003109); Evan Hiller (#028214); Assistant Attorneys General Office of Senior Litigation Counsel; Kevin D. Ray (#007485); Lori S. Davis (#027875); Aubrey Joy Corcoran (#025423); Assistant Attorneys General; Education and Health Section; 1275 West Washington Street, Phoenix, Arizona 85007-2926; Telephone: (602) 542-8328; Facsimile: (602) 364-0700; Email: EducationHealth@azag.gov
Defendants: THE 2811 CLUB, LLC, an Arizona limited liability company; THE ARIZONA COMPASSION ASSOCIATION, INC., a pending Arizona non-profit corporation; MICHAEL R. MILLER, Director of the Arizona Compassion Association, Inc.; YOKI, INC. d/b/a YOKI A MA CLUB, an Arizona non-profit corporation; ARIZONA COMPASSION CLUB, LLC, an Arizona limited liability company
3. Sobol vs. Arizona – Arizona Superior Court
Plaintiff: Alan Sobol
Plaintiff’s attorney: none
Defendants: State of Arizona; Janice K. Brewer, Governor of the State of Arizona; Will Humble, Director of the Arizona Department of Health Services in his official capacity.
4. Elements Therapeutic Dispensary vs. Humble – Arizona Superior Court
Plaintiffs: ELEMENTS THERAPEUTIC DISPENSARY, an Arizona Non-Profit Corporation; ARIZONA DISPENSARY SOLUTIONS, LLC, an Arizona Limited Liability Company; ARIZONA ALTERNATIVE RELIEF CENTERS, INC., an Arizona Non-Profit Corporation dba MEDICAL MARIJUANA DISPENSARIES; PROTECT ARIZONA PATIENTS, INC., an Arizona Non-Profit Corporation; CULTIVATION MANAGEMENT SERVICES, an Arizona Limited Liability Company; HEATHER TORGERSON, a married woman; STEPHEN JOHNSON, a single man; ROBERT LILES, a married man; GREGORY DELUCA; a single man, HEIGHTENED HEALING, LLC, an Arizona Limited Liability Company; ALAN J. CITRIN, M.D., P.C.
Plaintiffs’ Attorney: David W. Dow; Law Office of David Dow; 3104 E. Camelback Rd., #281; Phoenix, AZ 85016-0001; (602) 550-2951; AZ State Bar#: 007377; ddowhiw I @gmail.com
Defendants: WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; THE ARIZONA DEPARTMENT OF HEALTH SERVICES, a political subdivision of the State of Arizona
5. Serenity Arizona, Inc. vs. Arizona Department of Health Services – Arizona Superior Court
Plaintiffs: SERENITY ARIZONA, INC., an Arizona nonprofit corporation; and MEDZONA GROUP, INC., an Arizona nonprofit corporation; JANE CHRISTENSEN, a married woman.
Plaintiffs’ Attorney: Ken Frakes, #021776; Ryan Hurley, #02460; ROSE LAW GROUP PC, 6613 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85250, (480) 5o5-3931; (480) 951-6993; Fax: firstname.lastname@example.org; email@example.com.
Defendants: THE ARIZONA DEPARTMENT OF HEALTH SERVICES, an agency of the State of Arizona; WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity
6. Compassion First, LLC vs. Arizona – Arizona Superior Court
Plaintiffs: COMPASSION FIRST, L.L.C., dba Compassion First, an Arizona limited liability company; SCOTT TIDEMANN, a single man; KIMBERLY REARDON, a single woman, MARK BROOKMAN, a married man; KEITH LOWELL RABIN, a single man and DANIEL MEDINA, a single man.
Plaintiffs’ attorney: AIKEN SCHENK, HAWKINS & RICCIARDI P.C., 4742 North 24 Street, Suite 100, Phoenix, Arizona 85016-4859; Telephone: (602) 248-8203; Facsimile: (602) 248-8840; E-Mail: firstname.lastname@example.org; E-Mail: email@example.com; E-Mail: firstname.lastname@example.org; E-Mail: jc@ashrlaw .com; J. Tyrrel Taber; Alfred W. Ricciardi; James M. Cool; THE LAW OFFICES OF JEFFREY J. HERNANDEZ 7047 East Greenway Parkway, Suite 140, Scottsdale, Arizona 85254; Telephone: (480) 624-2765; Facsimile: (480) 607-2215; jjhernandez@az-law .net.
Defendants: STATE OF ARIZONA a governmental entity; JANET K. BREWER, Governor of the State of Arizona, in her official capacity; ARIZONA DEPARTMENT OF HEALTH SERVICES (ADHS), an Arizona administrative agency; and WILLIAM HUMBLE, Director of ADHS, in his official capacity.