Lawsuit Filed in Court of Appeals to Force Arizona Department of Health to Implement Medical Marijuana Dispensaries

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First challenge to state's decision to delay implementation of Arizona Medical Marijuana Act filed in state Court of Appeals

The petitioners are seeking an order to direct the Arizona Department of Health Services to simply "do its job!"

Will Humble, the Executive Director of the Arizona Department of Health Services (ADHS) was served last Tuesday with a copy of a Special Action filed in the Arizona Court of Appeals (No. 1 CA-SA 11-016). The lawsuit was the first of two actions filed against ADHS seeking judicial relief. The second action (LC2011-000410) was filed in Maricopa County Superior Court. Both lawsuits are seeking a court order directing Will Humble and the ADHS to fully implement the licensing of the Medical Marijuana Dispensaries.

David Dow of the Law Offices of David Dow, PLLC. filed the Special Action in Division One of the Arizona Court of Appeals early last Tuesday morning seeking an appellate court order, which will direct ADHS to “do its job”. Dow represents several prospective dispensary owner Petitioners and business entities that have expended a significant amount of resources in preparation to submit dispensary licenses. Two of the Petitioners are qualifying patients who suffer from debilitating illnesses and are anxiously waiting for the dispensaries to open.

Protect Arizona Patients, Inc. - http://www.protectarizonapatients.org - a patient advocacy group is a named Petitioner representing the interest of all qualifying Arizona patients whose illnesses would benefit from the dispensaries being open and readily accessible.

According to Dow, an experienced litigator, “Unlike the case filed in Superior Court, we believe that the Court of Appeals is the proper forum for this special action seeking a Writ of Mandamus to be heard. Full implementation of the AMMA involves state employees confronted with an issue of statewide importance. Moreover, Dow filed the action seeking expedited resolution, because without it, the state could easily be inundated with tens of thousands of caregivers. Dow argues, “the parties don’t have an equally plain, speedy and adequate remedy to obtain their requested relief” other than the expedited relief available through the appellate court.

On November 2, 2010, Arizona voters passed Proposition 203, an initiative measure that was codified in the Arizona Medical Marijuana Act (AMMA). The AMMA was envisioned as a means to decriminalize medical marijuana use by people with certain chronic and debilitating medical conditions. Humble and his staff have expended several months developing a highly regulated dispensary program that would have resulted in a maximum of 125 dispensaries in the state.

ADHS was to begin accepting applications for medical marijuana dispensaries on June 1, 2011. Seven (7) days prior to acceptance of the dispensary applications, Governor Jan Brewer filed an action in Federal Court seeking a Declaratory Judgment. The action, which halted the implementation of the dispensaries, was allegedly filed in direct response to a May 2nd letter written by U.S. Attorney Dennis Burke clarifying the Federal Government’s position that marijuana is still illegal under Federal law.

According to interviews given by Attorney General Tom Horne and Governor Brewer, the declaratory action was only contemplated in good faith after Burke’s May 2nd letter was sent to Humble. Conversely, Burke has contended that he has no intention of prosecuting state officials for implementation of the AMMA.

Contrary to the allegations publicly made by Horne and Brewer, the Petitioners allege that there is credible evidence that Horne, in concert with the vocal anti-Prop 203 advocate, Carolyn Short and former U.S. Attorney General Paul Charlton privately conspired and colluded for months to develop a scheme to delay implementation of the AMMA, which included filing for a Declaratory Judgment. The Petitioners contend that Horne and Brewer are intentionally misinterpreting Burke's letter for the sole purpose of indefinitely delaying implementation of the state’s medical marijuana law. Internal communications suggest that Will Humble refused to agree to any unjustifiable delay until, apparently, a few days before the dispensary program would have been implemented.

Despite apparent overwhelming internal pressure, Will Humble continued to work diligently on the AMMA until his efforts were finally thwarted by Governor Brewer and Tom Horne, under the pretext that the state needed to seek a Declaratory Judgment because it was concerned about the safety of state employees based upon Dennis Burke’s May 2nd letter.

Although the 125 highly regulated dispensary licenses aren’t being processed, almost 5,000 individual cultivators and patients have been certified, entitling them to grow marijuana with virtually no regulation or inventory control. The lack of caregiver regulation has already resulted in one fatal shooting of a patient, and Petitioners contend additional incidences of violence are inevitable.

The Petitioners are asking for the Court of Appeals to direct Will Humble and the Arizona Department of Health Services to begin licensing the dispensaries within thirty (30) days of issuance of the writ. The state has until June 24th to file an answer and a hearing is scheduled before the three judge appellate court panel the morning of July 12th.

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