Yourwestvalley.com: “Hoping for a speedy conclusion to the Sun City medical marijuana dispensary case, Maricopa County Attorney Bill Montgomery has asked the Arizona Supreme Court to immediately take up his challenge to a state law. In legal papers filed with the high court, Montgomery told the justices that his bid to overturn a lower court ruling upholding the law is proceeding at the Court of Appeals at a very slow pace. Montgomery filed his formal brief Friday; now the other side gets time to respond, with Montgomery then getting a chance to reply to that.”
Los Angeles Times: “Entrepreneurs ramp up after the state’s voters approved a constitutional amendment legalizing recreational use of marijuana. . . . The state [Colorado] has become a nucleus of the rapidly evolving marijuana industry, offering a glimpse at what life might be like if weed is legalized nationwide, with companies, entrepreneurs and investors maneuvering for a piece of the expected boom. Dispensaries are handing out glossy prospectuses to lure investors. Luxury cannabis leisure magazines in the vein of Cigar Aficionado are promoting the industry and cannabis tourism. Companies are jostling for various sectors of the market, from grow lights to point-of-sale systems. And marijuana growers are shedding the pothead vibe to sell their services to MBAs, who may have the capital to get started but not the arcane knowledge required to produce good weed.”
The Huffington Post has an in depth review of the federal government’s war on medical marijuana under former Choom Gang member Barack Obama. Excerpts from the story are below.
In August 2011, Justice officials told their local government leaders in the town of Chico, Calif., that they could personally be jailed if they went forward with legislation to regulate medical cannabis. Under criminal conspiracy laws, “all parties involved would be considered, including city officials,” city manager David Burkland wrote in a report on their meeting with U.S. Attorney Benjamin Wagner. . . .
“Staff and Council’s involvement in implementing the marijuana ordinance could be interpreted as facilitating illegal activity associated with marijuana,” Burkland wrote. “U.S Attorney Wagner also stated that although the DOJ may lack the resources to prosecute every case, it intends to prosecute more significant cases to deter the activity of marijuana cultivation and unlawful distribution. In those cases, staff or elected officials will not be immune from prosecution under conspiracy or money laundering laws.”
The prosecutor’s pursuit of fairness also took her to Mendocino County, where local officials had established an effective “zip tie program” to regulate its medical marijuana trade. Growers, after paying a licensing fee and submitting to police inspection, were given zip ties by the sheriff. Police officers who found bags of pot cinched by those ties then had reason to believe the product had been grown legally.
Just before the county board of supervisors planned to vote on making the program official and permanent, Haag traveled to the county and, in a meeting with county counsel Jeanine Nadel, threatened the supervisors with legal action if they moved forward, according to a report by California Watch.
The board decided to squash the program, but Haag’s pursuit continued. She empaneled a grand jury and subpoenaed information from the county about its program, looking for the names of people who had registered as growers, as well as all financial information related to it.
Holder highlighted the contrast in 2010 as California voters prepared to vote on a ballot measure, Proposition 19, legalizing marijuana for recreational use. Just weeks before the election, Holder wrote a letter stating that the feds would “vigorously enforce” federal law “against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law.”
Jenny Durkan, the U.S. attorney for the District of Washington, warned residents the day before her state’s law went into effect in early December that marijuana remains illegal under federal law.
“Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law,” she warned.
Phoenix New Times: “A group of medical-marijuana dispensary owners at the State Capital yesterday afternoon urged authorities to shut down unregulated cannabis clubs. Meanwhile, up the road in a small, west Valley strip mall, medical-marijuana patients toked up openly in a ‘lounge’ that has the look, feel, and scent of a Dutch coffeeshop. . . . The entrepreneur behind the Arizona Vapor Lounge, Bill Hayes, says his business is a budding franchise: He expects 14 similar lounges across the state to open in the next two months. . . . Hayes credits Maricopa County Attorney Bill Montgomery for giving him the idea for the lounge’s business model.”
For more on the legalities of cannabis clubs read Richard Keyt’s article called “Are Arizona Cannabis Clubs Legal Under Arizona’s Medical Marijuana Laws?“
Arizona Republic: “Maricopa County Attorney Bill Montgomery is petitioning the Arizona Supreme Court to bypass the appellate court and hear his arguments on a high-profile medical-marijuana case. The case centers on whether the Arizona Medical Marijuana Act is pre-empted by federal law. A Maricopa County Superior Court in December ruled that federal drug laws do not pre-empt the state’s medical-marijuana program and that public officials must implement the voter-mandated law.”
The Oakland Press: “A 31-year old Keego Harbor man was jailed after members of the Oakland County Sheriff’s Office Narcotics Enforcement Team (NET) raided Holly’s sole medical marijuana dispensary, Well Greens, on Thursday afternoon, seizing marijuana, cash, guns and other drug paraphernalia in two separate raids. The suspect is believed to be the owner of Well Greens.”
The United States Court of Appeals for the D.C. Circuit ruled on January 22, 2013, in the case of Americans for Safe Access vs. DEA to agree with lower courts that “adequate and well-controlled studies” do not exist to support the legitimacy of medical marijuana. The Court’s opinion begins with:
There is a serious debate in the United States over the efficacy of marijuana for medicinal uses. Although marijuana has been legalized in a number of states, it is classified as a “Schedule I” drug by the Drug Enforcement Administration (“DEA”), pursuant to its authority under the Controlled Substances Act of 1970 (“CSA” or “Act”). The DEA has maintained this listing because it has determined that marijuana “has no currently accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1)(B). Because Schedule I is the most restricted drug classification under the CSA, the production, sale, and use of marijuana are largely banned by federal law. Petitioners in this case – Americans for Safe Access, the Coalition to Reschedule Cannabis, Patients Out of Time, and several individuals – challenge DEA’s denial of its petition to initiate proceedings to reschedule marijuana.
The CSA permits the DEA to reclassify drugs to less restrictive schedules according to various statutory criteria, and interested parties can petition the DEA for such action. See 21 U.S.C. §§ 811, 812. In October 2002, the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. See Denial of Petition to Initiate Proceedings to Reschedule Marijuana (“Denial”), 76 Fed. Reg. 40,552, 40,552 (July 8, 2011). The DEA denied the petition on July 8, 2011, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.” Id. at 40,552, 40,567. On July 22, 2011, Petitioners filed a timely petition for review of the DEA action.
Petitioners claim that “[n]umerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions, but the DEA simply ignores them to conclude that marijuana should remain in Schedule I.” Pet’rs’ Br. at 20. Petitioners thus contend that the DEA’s denial of their petition was arbitrary and capricious and ask this court to remand the case to the agency for further consideration.
The Government, in turn, argues that we should dismiss the petition for review on jurisdictional grounds because Petitioners and Intervenor lack Article III standing. The Government also asserts that, even if the court determines that Petitioners or Intervenor have standing, the petition for review should be denied on the merits. According to the Government, in the record reviewed by the DEA, “there was no available evidence of adequate, well-controlled studies demonstrating marijuana’s safety and effectiveness as a medicine and no consensus among experts as to these issues. The enactment of state laws allowing the use of marijuana for medical purposes did not constitute the required science-based evidence.” Br. for Resp’t at 23.
We deny the Government’s jurisdictional challenge because we find that at least one of the named Petitioners, Michael Krawitz, has standing to challenge the agency’s action. Krawitz, who is a disabled veteran, is entitled to medical care through the U.S. Department of Veterans Affairs (“VA”). Krawitz has suffered injury-in-fact because he must shoulder a financial cost for services he could otherwise obtain free of charge from the VA. There is a causal connection between the DEA’s continuing decision to classify marijuana as a Schedule I drug and the VA’s policy of refusing to provide referrals for state medical marijuana programs. And a favorable decision from this court would likely redress Krawitz’s injury because, if the DEA rescheduled marijuana, the VA could no longer use the CSA to justify its policy of refusing to complete medical marijuana referral forms. Krawitz thus satisfies the requirements of Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
On the merits, the question before the court is not whether marijuana could have some medical benefits. Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious. These questions are not coterminous. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a “currently accepted medical use.” The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define “currently accepted medical use” to require, inter alia, “adequate and well-controlled studies proving efficacy.” Id. at 1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.
The chief counsel for plaintiff Americans for Safe Access, Joe Elford, said:
To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise. The Court has unfortunately agreed with the Obama Administration’s unreasonably raised bar on what qualifies as an ‘adequate and well-controlled’ study, thereby continuing their game of ‘Gotcha.’
Arizona Republic: “Dispensary owners, patients and advocates of medical marijuana are asking state lawmakers to reconsider an attempt to repeal the 2010 law that legalized the drug to treat certain medical conditions. Instead of taking the medical marijuana issue back to voters, they urged the Legislature Thursday to clamp down on unregulated marijuana clubs — often called ‘compassion clubs,’ — to ensure patients receive their recommended drugs within the guidelines of the new law.”
Denver Post: “As a candidate in 2008, Barack Obama emphatically stated that medical marijuana use was an issue best left to the states. One of the first promises he made as the newly elected president was that he was ‘not going to be using Justice Department resources to try to circumvent state laws.’ . . . So what is the lesson here? Smoke marijuana illegally, and you can become president. Try to provide a safe, consistent product that keeps the trade out of domestic and foreign drug cartels and brings in tax revenue, and face 15 years jail time.”
Toke of the Town: “This month will see a number of patients sentenced, sent to prison despite compliance with state medical marijuana laws. Fallout from the Obama Administration’s aggressive federal enforcement in medical marijuana states has reached a fever pitch this month with three people being sentenced, two others due to surrender to federal authorities to serve out sentences of up to five years in prison, and one federal trial in Montana currently scheduled for January 14. . . . ‘The Obama Administration is lying to the American people when it says it’s not targeting individual patients and these cases are clear evidence of that‘,”
Huffington Post: “A federal magistrate on Monday ruled that the Harborside Health Center located in Oakland and San Jose, Calif., can continue to operate, despite a bid by federal prosecutors to shut it down. Harborside is widely considered the world’s largest medical cannabis dispensary. . . . Harborside’s landlords have called on the court to order an immediate halt of cannabis sales at their properties in Oakland and San Jose on the grounds that the activity is illegal under federal law. Meanwhile, the city of Oakland, which last year received more than $1 million in tax revenue from Harborside, has filed suit against the federal prosecutors to challenge the forfeiture action.”
San Diego, California, Mayor Bob Filner ordered San Diego authorities to stop code enforcement and prosecution of medical marijuana dispensaries located in San Diego.
Arizona Republic: “A majority of Arizonans support the state’s medical marijuana law and would support any future initiative to regulate marijuana in a similar way to alcohol, according to a poll commissioned by a marijuana advocacy group. The poll, a copy of which was obtained by The Arizona Republic, was commissioned by the National Cannabis Industry Association, which represents businesses that make up the emerging medical marijuana industry.”
Arizona Court Rules Yuma County Sheriff Must Return Marijuana Seized from Medical Marijuana Cardholder
The Arizona Court of Appeals ruled that the Yuma County Sheriff must return to Valerie Okun, a California resident, the marijuana that law enforcement seized from her inside Arizona because she held a valid California medical marijuana card.
“Authorities stopped Valerie Okun entering Arizona near Yuma and seized marijuana and other contraband from her car. The State filed drug charges against Okun, but dismissed them after she produced proof she is permitted to possess marijuana for medical purposes under the Arizona Medical Marijuana Act. After the charges were dropped, the superior court granted Okun’s request for the return of the marijuana. In this appeal from that order, the State argues Arizona law requires forfeiture of any marijuana seized by law enforcement and also contends the Yuma County Sheriff cannot return the marijuana to Okun without risk of violating the federal Controlled Substances Act. We affirm the superior court’s order requiring the Sheriff to return the marijuana to Okun. Because Arizona law allows Okun to possess the marijuana, it is not subject to forfeiture under state law. Moreover, the Sheriff is immune from prosecution under the federal law for acts taken in compliance with a court order.”
The State argued that the court should not order the return of the marijuana because it would subject the Sheriff to prosecution as a transferor of marijuana under the federal Controlled Substances Act. See 21 U.S.C. § 841(a)(1). The case was not a complete loss for prosecutors Jon R. Smith, the Yuma County Attorney, and his two Deputy County Attorneys Edward P. Feheley and Theresa W. Fox because the court did educate them on federal law when it wrote:
“As Okun points out, however, federal law immunizes a law enforcement official from liability under circumstances such as these. Title 21, section 885(d) of the United States Code is titled “Immunity of Federal, State, local and other officials” and provides that, with exceptions not relevant here, “no civil or criminal liability shall be imposed by virtue of this subchapter . . . upon any duly authorized officer of any State, territory, political subdivision thereof . . . who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” 21 U.S.C. § 885(d). This provision immunizes law enforcement officers such as the Sheriff from any would-be federal prosecution for complying with a court order to return Okun’s marijuana to her.”
Don’t you wonder why the prosecutors made a stupid argument to the Arizona Court of Appeals in light of relevant federal law directly contrary to their argument?
See the legal opinion in State of Arizona v. Valerie Ann Okun.
Phoenix Business Journal: “An anti-drug group financed by the Arizona Cardinals is backing a new ballot measure that would rescind Arizona’s new medical marijuana law and outlaw new dispensaries that have started opening. Keep AZ Drug Free has endorsed a bill put forward in the Arizona Legislature asking voters to repeal the medical marijuana legalization measure they narrowly passed in 2010.”
The Daily Chronic: “A medical marijuana grower who was acquitted on drug cultivation charges in December wants the Colorado Springs police department to return the plants they seized in a March 2012 raid, or reimburse her over $3.3 million in damages. Alvida Hillery, the founder of of the Rocky Mountain Miracles medical marijuana dispensary, filed a motion demanding the return of 36 pounds of medical marijuana and 304 plants seized by Colorado Springs police and the state Medical Marijuana Enforcement Division. Hillery’s attorney, Sean McAllister of Denver, says that if her property is not returned, or is damaged, moldy or unusable, Hillery is entitled to $3,327,460 in damages.”
The Daily Chronic: “The operator of three state-compliant California medical marijuana dispensaries was sentenced to 10 years in federal prison Monday [January 7, 2013] for running what federal prosecutors claimed was an illegal drug business that only pretended to be legitimate under the state’s medical marijuana law. Aaron Sandusky, 43, of Rancho Cucamonga, was sentenced for conspiracy and possession with intent to distribute marijuana. Sandusky is the former president of G3 Holistics Inc.”
Arizona Republic: “Medical-marijuana patients and advocates are decrying state health officials’ interpretation of a rule that bans growth of the plant within 25miles of an operating dispensary. Authors of the state’s medical-marijuana law intended to limit home growers by forcing people to buy at dispensaries. But amid prolonged legal battles over the law, no dispensaries opened and home-growing flourished. But the opening of four medical-marijuana dispensaries in Phoenix, Tucson and Cochise County have brought the 25-mile rule to the forefront. Over time, the vast majority of patients who live within 25 miles of dispensaries will not be permitted to legally cultivate pot”
Mark B. Evans wrote in the Tucson Citizen.com: “No one likes an I Told You So but every now and then it’s necessary to say, ‘I told you so.’ . . . In October 2010, I argued that voters should reject the proposition because the law as it was written was a sham, simply a backdoor way for dope smokers to legally get high. The law didn’t require a prescription from a board-certified physician, just a ‘recommendation’ and it allowed homeopaths and naturopaths to also make ‘recommendations,’ even though they are merely government-sanctioned quacks.”
Inside Business: “what does implementation of the medical marijuana act mean for Arizona businesses? As a business owner, are your personnel policies up to date and in compliance? Before the passage of the act, there was concern that employers would be forced to allow medical marijuana cardholders to come to work under the influence, or even use marijuana on company premises. Fortunately, most of those fears were over-blown, but there are still steps to take to ensure your policies reflect the current state of Arizona law, while protecting your business interests and minimizing potential liability.”
The Herald: ” A University of Arizona physician has taken the first political steps in her bid to do medical marijuana research at state-run schools. Sue Sisley, a specialist in internal medicine and psychiatry, has formed Americans for Scientific Freedom, which she will chair.”
Arizona Republic: “A state lawmaker wants to repeal Arizona’s controversial medical marijuana law, which allows people with certain medical conditions to legally grow, sell and use the drug. Rep. John Kavanagh, R-Fountain Hills, on Thursday filed a bill that would refer the Arizona Medical Marijuana Act back to the ballot in November 2014. . . . Kavanagh told The Arizona Republic that voters deserve the right to rethink whether the law, approved by voters in 2010, should have passed in the first place.”
NBC News.com: “If a California company has its way, recreational marijuana users in Colorado and Washington state will one day be able to get their pot out of vending machines. Such machines are already in use in some states where medical marijuana is legal, but now the maker’s founder says the company is working to adapt the machines to comply with new laws in Colorado and Washington, where adults can legally use marijuana for recreation. . . . Hollywood-based Medbox, a public company, is offering up its expertise in convenient delivery systems.”
Denver Post: “The first recreational pot den to open in Colorado has already closed its doors, after a dispute with its landlord. The White Horse Inn, in the tiny southern Colorado town of Del Norte, opened Monday as the first business in the state to offer patrons a chance to have a joint with their cup of joe. But owner Paul Lovato said Tuesday morning it was that early open date that caused problems.”
Arizona Republic: “Teens are obtaining pot from medical marijuana cardholders, according to a biennial study by the Arizona Criminal Justice Commission. Nearly one out of every nine high schoolers who said they used the drug within the past 30 days said they got it from a cardholder, the 2012 Youth Study shows.”