AZ Attorney General takes beating in court over marijuana

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 her legal enforcer in the case, state Attorney General Tom Horne, campaigned against Prop 203 before voters passed it and later targeted it with a lawsuit. Brewer also ordered the state to reject applications for medical-marijuana dispensaries, a situation that has left about 16,000 state-qualified pot patients with no convenient source of “medicine.”

Brewer and Horne, however, don’t have the chutzpah to actually argue against the voter-approved law — something that could be politically dangerous. When they turned to federal court in May for a declaratory judgment on whether the new law was legal, they argued that the “controversy” was a no-brainer because marijuana is illegal under federal law.

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.

The courtroom’s viewing benches, ironically, were crowded with real opponents. Carolyn Short was there — she’s the marijuana prohibitionist who suggested to Horne in January that he ought to file for declaratory judgment. So were medical marijuana entrepreneur Al Sobol, Prop 203′s PR man Joe Yuhas and several supporters of the dispensary industry.

Bolton was highly skeptical of the state’s argument. In a nutshell, the Brewer and Horne are arguing that the state officials who would regulate dispensaries risk getting busted by the feds. Lawyers for the U.S.

Justice Department, in yet another irony (considering Obama’s  crackdown on medical weed in California), take the position that Arizona’s law doesn’t necessarily threaten state workers. They want Brewer’s case tossed out.

Davis, echoing motions the state has filed in the case over the last few months, noted that U.S. Attorneys in other states have sent letters that imply state workers are at risk.

“You haven’t gotten any such letter from a U.S. Attorney in Arizona, have you?” Bolton asked. Davis told the judge that former Arizona U.S. Attorney Dennis Burke previously said he couldn’t grant immunity or give “state harbor” to state workers. (She left out the part in which he also said he didn’t intend to prosecute state workers.)

“At the minimum,” Bolton told her, “Don’t I have to force you to amend which side you’re on? Because you have to take a side… You’re going to have to pick at some point.” After the hearing, Davis tells New Times that the state will have to decide whether it wants to do what Bolton asks. Yuhas, spokesman for the Arizona Medical Marijuana Association, whose principles put Prop 203 on the ballot, says he’s optimistic that today’s hearing “will lead to a decision that will allow us to move forward.”

He means moving forward on the opening of dozens of dispensaries in Arizona, as approved under the law. Now, the “piecemeal” approach to rolling out the law has led, among other things, to 16,000 patients who have the legal ability to grow their own — a situation that Yuhas sees as potentially out of control.

Arizona’s medical pot law gives state-qualified patients the right to grow up to 12 plants each unless a dispensary is open within 25 miles. For now, there are no dispensaries.

Yuhas acknowledged that even if Brewer’s lawsuit is stopped in its tracks, the dispensary applications still wouldn’t be accepted without Brewer’s okay.

By Ray Stern