In Arizona, the people are waging a war on two fronts against lawmakers eager to stomp out medical marijuana; constituency and Constitution be damned. Last year, citizens passed proposition 203 and thus directed the state to create a medical marijuana program. The program was moving along, with over 6,500 patients receiving cards and numerous dispensaries awaiting licensing, when Governor Jan Brewer abruptly put the program on hold in late May. Brewer claimed that she was worried that state employees involved in the program may be targeted by federal authorities and then instructed her Attorney general to file suit in federal court in pursuit of a “clarification” about the status of the state’s medical marijuana law. More specifically, the lawsuit asks whether compliance with state law will protect officials from federal action or is federal law invalidates medical marijuana altogether.
The only problem with this is that what the Governor is asking for here is undoubtedly an advisory opinion. Advisory opinions happen to be prohibited in the United States, and this is not some recent legal nuance either, John Jay, the first US Chief Supreme Court Justice, established this prohibition when President George Washington asked for a legal opinion. Later decisions have made it clear that a case requires an actual controversy and dispute between two parties to have standing. None of these requirements are met by the Brewer lawsuit; the case should be thrown out.
The actions of the Governor are being challenged by a growing coalition of activists and legal professionals who refuse to let lawmakers play games with the will of the people. Just last week the ACLU joined the efforts of the Arizona Medical Marijuana Association which is both suing the state to force implementation of the medical marijuana law and working to get the federal lawsuit dismissed for the reasons above. The ACLU brief argues that the “various novelties of Arizona’s lawsuit doom it to fail” and breaks the issue down to three points:
“Regarding jurisdiction, first, Arizona’s refusal to take a concrete position supporting either of the two requested, diametrically opposed declarations deprives this lawsuit of a genuine controversy between plaintiffs and defendants. Without a view of its own, Arizona is merely asking this Court to resolve “uncertainty” in the law – in other words, to issue an impermissible advisory opinion. Second, even if there were a case or controversy, state officials cannot use the federal courts as a vehicle either to validate, or to attack, their own laws. Third, since no state official faces a genuine threat of prosecution, the lawsuit is unripe.”
“On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine,” said Scott Michelman, staff attorney with the ACLU Criminal Law Reform Project. “People should have the freedom to choose the medicine their doctors believe will be most effective for them.”
The situation in Arizona is rapidly evolving as the state becomes a key player in the national battle to save medical marijuana. For an insider’s take, check out this exclusive intervie with attorney Ryan Hurley, who is involved in both lawsuits on behalf of the Arizona Medical Marijuana Assciation.