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.
But Davis told Gama the governor has a good reason.
She said the Department of Justice has sent various memos to officials in Arizona and elsewhere warning that marijuana remains illegal under the federal Controlled Substances Act. More to the point, Davis said, those memos make it clear that there is no shield from federal prosecution for state employees who are administering local marijuana laws.
That, she said, could include going after state employees who help issue licenses to marijuana retailers under federal laws making it a crime to facilitate violation of federal laws. Davis said part of Brewer's job is to protect state workers from possible federal prosecution.
"It's no laughing matter for the employees that are having to put themselves on the line just to do their jobs, pay their bills, when there are no other jobs out there for them to get even if they wanted to," Davis said.
Davis said those concerns were exactly why Brewer, after directing that no dispensaries be licensed, filed a separate lawsuit in federal court asking for a declaration of whether state workers can, in fact, be prosecuted for just doing their jobs. The first hearing on that case is set for Monday.
But Taber told Gama that is irrelevant to the central question of whether Brewer has any authority in the first place to ignore a legally adopted statute.
"The governor needs to be told, by you, to do her job, just as it's for you to do your job in telling her what her responsibilities are if she will not live up to them," he said.
The law allows those with a doctor's recommendation to get a permit from the state to obtain up to 2 1/2 ounces of marijuana every two weeks. Davis told Gama state health officials already have issued nearly 16,400 such permits since the law took effect earlier this year and continue to process new applications.
But Brewer directed state Health Director Will Humble not to implement the rest of the law which sets up a system of non-profit dispensaries for people to get their drugs.
Davis told Gama if he does not throw out the challenge, the least he should do is wait to see what U.S. District Court Judge Susan Bolton rules in the state's own lawsuit seeking a declaration of immunity for its workers. Gama, however, appeared not too receptive to that idea.
First, Gama questioned whether Bolton will even allow the case to proceed. He said it appears the state wants an "advisory opinion" on the scope of the Controlled Substances Act, something federal judges are loath to provide.
And Gama said even if Bolton agrees to consider the matter, she really has little choice but to say that the federal law is valid.
But Davis said the state did not go to federal court to find an excuse to ignore the medical marijuana law. Instead, she said, it wants a determination of whether what state workers would be doing in issuing licenses is exempt.
One section of the federal laws says that officers of the state are not subject for liability if they are "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances."
Davis conceded what Congress probably had in mind is ensuring that undercover cops could not be busted for having drugs and that state court personnel who handle the evidence would not be arrested for possessing illegal drugs. But she said an argument could be made that the exemption is wide enough to cover the activities of state health department employees.
Gama seemed unconvinced any of that matters. He said he doubts the opinion of a single federal judge could block federal prosecutors from pursuing charges.
Anyway, he said, whichever side loses is likely to appeal. And Gama appeared uninterested in waiting for years while that process unwinds before he can rule on the question in his own court: Does Brewer have the power to unilaterally refuse to implement a legally approved law.
Brewer's refusal to license any dispensaries has not entirely thwarted the law.
One provision of the act says that certified marijuana users who live at least 25 miles from a dispensary can grow their own marijuana. With no dispensaries, that applies to everyone.
Several "cannabis clubs" also have sprung up around the state where medical cardholders can get free samples of the drug which have been grown or donated by other legal marijuana users. The law does allow such transfers if no money is exchange.
But the state, in a separate lawsuit, is trying to shut those down, saying the fact someone has to pay to be a member of the club or enter the premises amounts to the illegal sale of the drug.