Backers of medical marijuana charge that a federal lawsuit filed late Friday is designed let the governor and the attorney general do in court what they could not convince voters to do: keep the use of the drug illegal in Arizona.
Richard Keyt, an attorney who helps companies set up dispensaries, said the lawsuit is worded in a way that the judge can reach only one conclusion: the federal Controlled Substances Act trumps the Arizona Medical Marijuana Act. And Keyt said states cannot change federal law.
Ryan Hurley, who also represents would-be dispensary owners, said if a federal judge agrees to hear the case - something that is far from a certainty - there is really no way he or she can rule that Arizonans are free to ignore the federal statutes making possession, sale and transportation of marijuana a felony.
"The best case scenario we get out of the lawsuit is status quo," he said. "We're never going to get a decision that says federal law cannot be enforced in Arizona. That will never happen."
And Paula Pennypacker, one of the individuals whom Attorney General Tom Horne named in the lawsuit as interested in defending the state law, called it an attempt by "the far right" to ignore the will of the voters. "And I'm a Republican," she added, like Horne and Gov. Jan Brewer who directed the lawsuit to be filed.
What makes the litigation significant for the future of medical marijuana is the way Horne phrased the question for the court.
He has given the judge two choices: declare that the Arizona law complies with federal law and should be implemented, or rule that "should be declared preempted in whole or in part because of an irreconcilable conflict with federal law." A finding of the latter would give Brewer the justification to stop the Department of Health Services from implementing the law.
That means no more state-issued cards for those who have a doctor's recommendation to use marijuana beyond the approximately 4,000 that have been issued. It also means no state-regulated cultivation sites to grow the drugs or dispensaries to sell them.
Brewer already has ordered Will Humble, her health director, not to license either the growers or the sellers while the lawsuit is pending.
But the governor is continuing to let state workers issue cards to "qualified patients." Press aide Matthew Benson said the alternative is to trigger a provision of the law which says the failure of the state to process a completed application within 45 days means it is presumed to have been approved.
Horne denied that the wording of the lawsuit is designed to get a pre-determined result of a federal judge ruling that federal law supersedes state statute. But he said it doesn't matter, even if his legal papers are worded that way.
He pointed out the state is suing not only officials at the U.S. Department of Justice but also several groups and individuals who have an interest in preserving the Arizona law as voters approved in November.
"They will file cross-claims against each other," Horne said, pitting the defenders of the law against the federal government. "When they do that, the people who support the initiative will put it in language they think is best designed to have the court declare that we can proceed with the initiative without being arrested by the federal government."
But Horne said that, at the governor's direction, he will not be defending what voters approved.
"The governor decided, and I agree, we should take a neutral position," he said. Horne said all the state wants is a clear ruling on whether it can proceed to implement the law.
That presumes, though, a federal judge will opt to weigh in.
"I think that there's a significant potential that the lawsuit will be dismissed," said Hurley. He said courts generally do not like to rule on what are essentially academic issues.
It would be different, Hurley said, if someone charged with violating the federal law claimed immunity because of the state statute. At that point, he said, a judge would have to rule whether that claim is legitimate.
If calls and e-mails to the governor's office are any indication, Arizonans are decidedly against the decision by Brewer and Horne to go to court: In less than two days since announcing the action, there were 12 message in support and 208 opposed.
Horne acknowledged that both he and the governor opposed Proposition 203 which allows those who have a doctor's recommendation to purchase up to 2 1/2 ounces of marijuana every two weeks from a state-regulated dispensary. But he said the decision to force the issue in federal court despite the lack of anyone being prosecuted in Arizona has nothing to do with that.
"I also have a very strong record of defending the idea that we should respect the will of the voters," he said.
Horne was a legislator in 1997, the year after voters first approved a law allowing doctors to prescribe marijuana. Prosecutors asked lawmakers to amend the law, adding a provision to allow it to take effect only if the Drug Enforcement Administration decided marijuana had a legitimate medical use.
"Even though I opposed the (1996) initiative, I also opposed the conditional enactment effort to thwart it on the grounds that we should respect the will of the voters," he said.
Horne also said the state was pursuing plans to implement the law, at least until earlier this month when Dennis Burke, the U.S. Attorney for Arizona, sent a letter to Humble outlining the position of his office on the issue of the state law.
Burke said federal prosecutors have no interest in spending time going after those who use marijuana in accordance with state laws. But he also said that "even clear and unambiguous compliance with the Arizona Medical Marijuana Act does not render possession or distribution of marijuana lawful under federal statute."
Horne said this is a change in stance from a 2009 memo issued by David Ogden, a deputy U.S. attorney general.
Burke, however, said there is nothing different about what he wrote earlier this month. In fact, Ogden, in spelling out he was not saying anyone can use state law as a shield against prosecution, wrote, "nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act."