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.

The top federal prosecutor in Arizona said Gov. Jan Brewer and Attorney General Tom Horne are distorting the facts on the issue of medical marijuana and risks of federal prosecution.

The pair, in announcing earlier this week they will file suit, said they are concerned that a letter from Dennis Burke, the U.S. Attorney for Arizona, suggests that state employees who process permits under the voter-approved law could wind up being charged with violating the federal Controlled Substances Act. The governor in particular said a letter that Burke sent to state Health Director Will Humble earlier this month warned that compliance with Arizona’s new medical marijuana law does not immunize anyone from federal prosecution.

The lawsuit, expected to be filed Friday against Burke and his boss, Attorney General Eric Holder, asks a federal judge to determine what legal protections, if any, Arizona’s voter-approved law provides.

But Burke, in an interview with Capitol Media Services, said his letter simply spelled out the priorities his office has in going after those who sell, transport or use marijuana. More to the point, he said that letter never mentioned state workers.

“It’s fair to read into my letter what I included and what I didn’t,’’ he said. “And if I didn’t include state employees, I think that’s telling in itself.’’

And Burke said there was a simple way of dealing with the question.

“You would think that a letter back from Attorney General Horne, as opposed to ‘I’m going to file a lawsuit and have a press conference,’ might have been a better course of action,’’ he said.

Gubernatorial press aide Matthew Benson conceded that Burke’s letter never mentions state workers.

Benson then produced a letter that the two U.S. attorneys in the state of Washington wrote to the governor there. It says state employees who act in accordance with that state’s medical marijuana laws could end up being prosecuted under federal law.

But Michael Ormsby, the U.S. Attorney for the Eastern District of Washington, told Capitol Media Services on Thursday there is a specific reason for that: The laws in his state are different.

“The Washington law had state employees involved in a number of different inspections and grading functions,’’ Ormsby said, with workers actually handling the drug. And Ormsby pointed out that the letter sent by Gov. Christine Gregoire to him and Jenny Durkan, the other U.S. attorney in that state, specifically asked how those provisions of the law would put state workers at risk.

Horne responded that the failure of Burke to specifically mention state employees did not mean they are not at risk.

“His logic leads to that danger,’’ Horne said. “His logic is that compliance with state (marijuana) law is not a defense’’ against being prosecuted under federal laws, he continued. And Horne said state employees are involved, by issuing permits, in “facilitating’’ the distribution of marijuana.

Burke said there appear to be elements of political grandstanding in both the press conference by Brewer and Horne earlier this week as well as the decision to sue.

He said nothing changed in federal law between the time Arizona voters approved the medical marijuana law in November and now.

More significant, Burke said that Humble, after reading that May 2 letter, was not alarmed about it or even worried about how it would affect his staffers who are processing the permits for those who want to use marijuana as well as those who want to operate dispensaries or even cultivate the drug.

“Humble blogged about it and seemed to read through the lines in my letter and say, ‘We’re going to keep proceeding,’ ’’ Burke said.

In fact, Humble told Capitol Media Services at the time his agency intends to continue issuing I.D. cards allowing those with a doctor’s recommendation to possess and smoke marijuana. As of this week, about 4,000 applications had been processed.

And Humble said he intended to start taking applications this coming week from those who want to operate state-regulated dispensaries and cultivation facilities.

“And lo and behold, out of nowhere, Horne work up and said, ‘Oh my God, I’m the lawyer, I’m supposed to be giving legal advice and maybe I should do something,’ ’’ Burke said. “I don’t know what happened.’’

Despite Horne’s publicly expressed fears, Humble continues to have his employees issue permits for marijuana users.

Even if he were to stop, though, it would make no difference. A provision in the voter-approved law says that if the health department does not approve completed applications within 45 days, they are automatically considered approved.

No decision has been made, though, whether the state will start issuing permits for those who want to operate dispensaries or cultivation facilities. The original plan was to start accepting applications next week.

In a separate development Thursday, Maricopa County Attorney Bill Montgomery issued a formal legal opinion telling county supervisors to stop doing anything to implement the law until the conflict with federal laws is resolved. The county is involved because of its role in approving the zoning or use permits necessary to locate a dispensary or cultivation facility.

Montgomery said his opinion will “safeguard county employees from the potential for federal prosecution unless and until this tension between state and federal law with respect to Arizona’s Medical Marijuana Act is resolved.’’

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