On July 1, 2001, Arizona Governor Jan Brewer and Attorney General Tom Horne issued the following joint press release:
“I‟m disappointed in this latest memorandum from the U.S. Department of Justice, which offers little more than continued confusion and doublespeak regarding the legality of locally-authorized medical marijuana programs in Arizona and other states,” said Governor Jan Brewer. “If this memo was an attempt at clarity, it failed.”
“Serious questions remain,” Governor Brewer continued. “Might state-licensed medical marijuana dispensaries be targeted for federal prosecution? Are state employees at risk if they license dispensaries according to state law? In light of these and other questions, the proper course of action was the one taken by the state: to place the dispensary process on-hold while we seek court guidance regarding the legality of the overall program.”
The Arizona Department of Health Services had been implementing provisions of the Arizona Medical Marijuana Act up until the agency received a letter, dated May 2, 2011, from U.S. Attorney Dennis Burke. That letter cast serious doubt on the legality of Arizona’s medical marijuana program and the potential culpability of state employees who administer the program. Governor Brewer and Attorney General Horne responded by calling a “time out” on the state‟s issuance of licenses to marijuana dispensaries, and filed a declaratory judgment asking a federal court to rule on the legality of the overall program.
That legality remains very much in question. This latest memo from Deputy U.S. Attorney General James Cole, dated June 29, 2011, notes that “persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.” The memo never addresses the potential legal culpability of state employees who administer medical marijuana programs according to state law.
“The federal government knew there was broad concern about whether ‘facilitate’ sale was a term that could endanger state employees, and they chose to remain silent,” said Attorney General Horne. “This letter represents a 180-degree turn from the Ogden memo, which said there should be low priority for those in clear and unambiguous compliance with state law, and ‘low priority’ was interpreted to mean they would not prosecute. Now they say they will prosecute those involved in distributing or ‘facilitating’ distribution, regardless of whether or not they are in compliance with state law. A federal court needs to resolve this conflict between federal and state law, as is traditionally one of the roles of the federal judiciary.”