Gov. Jan Brewer

Gov. Jan Brewer explains why she has directed Attorney General Tom Horne to ask a federal court to decide if Arizona can enforce its new medical marijuana law despite federal statutes making possession, sale and transportation of the drug illegal.

By Howard Fischer, Capitol Media Services

Saying she fears people could wind up in legal trouble, Gov. Jan Brewer on Tuesday ordered the state attorney general to get a federal court to rule whether Arizona can implement its medical marijuana law.

Brewer said it was always known there was a conflict between the law, which lets Arizonans with a doctor's recommendation get a state-issued card letting them purchase and use marijuana, and the federal statutes which make possession, sale and transportation a felony.

But she said a letter from Dennis Burke, the U.S. Attorney for Arizona, to her state health chief appeared to be a warning that anyone involved -- from patients and dispensary operators to landlords and even state health officials -- could wind up being prosecuted by his office.

"I believe in the will of the people,'' Brewer said, even though she personally opposed the initiative. "Unfortunately, with this piece of legislation, there are some pretty serious consequences if we don't get them resolved,'' she continued. "And I, as governor, am not willing to put those people at risk.''

Despite that, the state will continue issuing "qualified patient'' cards to anyone who produces the required doctor's certification that they have a medical condition which can be treated with marijuana.

Gubernatorial press aide Matthew Benson said the state really has no choice: The initiative approved in November says if the state does not accept applications, then anyone who has the doctor's recommendation is automatically considered to have been issued a card.

About 4,000 Arizonans already are certified under state law to be able to purchase up to 2 1/2 ounces of marijuana every two weeks.

But Benson said it remains unclear whether the state will start issuing licenses for dispensaries to sell the drug commercially while the lawsuit progresses. The first applications can be submitted this coming week.

The move drew fire from Ryan Hurley, an attorney who represents dispensary owners.

Hurley said he understands why the governor and Attorney General Tom Horne would want a federal judge to clarify whether Arizonans can be prosecuted under federal law even if they are following the state law.

But Hurley pointed out that Horne admitted he will not be asking the court to uphold the law or rule that it trumps federal statutes. Instead, the state is not taking a position.

He said Horne and Brewer should be defending the right of Arizonans to pass their own laws and decide what medicines should be available in the state.

Brewer sidestepped repeated questions of why the state is not mounting a vigorous defense of the law.

Horne said there are issues of states' rights involved.

But he said that, unlike the fight he is waging with the federal government over Arizona's immigration laws, there is a clear conflict between the goals of the state and federal statutes. That, he said, makes it inappropriate for him to demand that a federal judge rule that federal prosecutors cannot enforce federal laws in Arizona.

In his letter to Will Humble, the state health director, Burke said he intends to follow "guidance'' from superiors in Washington not to focus his limited resources on seriously ill patients who use marijuana as part of a doctor's treatment program.

"The public should understand, however, that even clear and unambiguous compliance with the Arizona Medical Marijuana Act does not render possession or distribution of marijuana lawful under federal statute,'' Burke wrote.

Potentially more significant, Burke had special words of caution to those who are in the business of growing marijuana even if they have a cultivation license from the state. And he said even those on the periphery, including property owners, landlords and organizations that finance dispensaries, risk not just federal criminal prosecution but also having the assets seized.

"This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution,'' Burke wrote.

The governor said that conflict needs to be resolved.

"What we have here is a failure to communicate,'' said Brewer, quoting from the movie "Cool Hand Luke.'' She said that leaves a bunch of questions unanswered beyond the basic one of whether the Arizona law is legal.

She wants to know whether state officials who issue dispensary licenses can be prosecuted because they are "facilitating'' the distribution of marijuana. And Brewer said she fears that the state Department of Public Safety could lose federal grants by refusing as a matter of policy to arrest those caught with the drug simply because they are complying with state law.

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