Federal Judge Won't Give State Guidance on AMMA

The federal lawsuit that Governor Jan Brewer filed in May 2011 at the same time she stopped full implementation of the Arizona Medical Marijuana Act (AMMA) was tossed out yesterday.  But don’t expect the state to start licensing medical marijuana dispensaries any time soon.

Arizoneout has reported from time to time on the political and legal maneuvers that have created a worst-case scenario in which thousands of Arizonans have a state permit to use marijuana for medical purposes, but no legal way to obtain it other than growing their own.

At the same time she sued, Governor Brewer halted the dispensary licensing process.  The gist of the State’s claim was that state workers implementing the dispensaries could be in jeopardy of federal prosecution, because marijuana is illegal for all purposes under federal law.  Governor Brewer tried to stay neutral, asking the federal court to decide whether the AMMA and federal law could co-exist.

In an ironic twist, the AMMA case landed before U.S. District Judge Susan Bolton, the same judge who struck down provisions of S.B. 1070, Arizona’s controversial immigration law, ruling that it was pre-empted by federal law.  The S.B. 1070 case is now before the U.S. Supreme Court.

At a hearing last month, Judge Bolton told the State that it could not sit on the fence but would have to take a position in the lawsuit on whether federal law trumped the AMMA.  A few days later, the State filed a notice that it would be amending the suit by January 9, 2012, and asked Judge Bolton to wait until then to rule on the various pending motions to throw out the case.

The State’s court papers did not indicate what position Governor Brewer would be taking, but her spokesman reportedly said that Arizona would argue that federal law trumped the dispensary provisions of the AMMA.

Many commentators have skewered Governor Brewer for what they perceive as hypocrisy in the different positions she has taken on the two laws.  A good recent example is E.J. Montini’s New Year’s Day column in the Arizona Republic.

Judge Bolton did not wait for the State’s promised filing, finding that the “scant detail” in the State’s notice was insufficient.  She gave the State until February 3, 2012 to file an amended lawsuit, but signaled that she doubted there was any basis to “substantiate a credible, specific warning or threat to initiate criminal proceedings against state employees in Arizona if they were to enforce the AMMA.”

Governor Brewer’s spokesman told the Republic yesterday that she was consulting with Arizona Attorney General Tom Horne on whether to appeal.  Arizoneout is predicting the state officials will decide to appeal, and that the AMMA’s dispensary licensing program will remain in limbo for many more months.