ACLU Says Arizona Is Blowing Smoke|With Lawsuit on Medical Marijuana Law

PHOENIX (CN) – The ACLU asked a federal judge to dismiss Gov. Jan Brewer’s lawsuit seeking declaratory judgment on whether the state’s voter-approved Medical Marijuana Act is pre-empted by federal law and should be struck down.

     The ACLU claims Arizona’s lawsuit should be dismissed for lack of jurisdiction or failure to state a claim because “state officials cannot use the federal courts as a vehicle either to validate, or to attack, their own laws.”
     The ACLU also claims Brewer’s lawsuit “is unripe” since “no state official faces a genuine threat of prosecution.”
     And the ACLU claims that while “state law cannot immunize federal criminal conduct,” neither can “the nullification of Arizona’s law on the basis of federal pre-emption be legally correct.”
     Voters approved Proposition 203, the Arizona Medical Marijuana Act, in November 2010, allowing people with chronic medical conditions to use doctor-prescribed medical marijuana.
     Brewer sued the federal government after the U.S. Attorney for Arizona, Dennis Burke, wrote to Arizona Department of Health Services Director Will Humble that “growing, distribution, and possession of marijuana ‘in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws that purport to legalize such activities.'”
     ACLU staff attorney Scott Michelman said in a statement: “On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine. People should have the freedom to choose the medicine their doctors believe will be most effective for them.”
     The ACLU claims Brewer has manufactured the dispute: “Tellingly, the state avers [in its lawsuit] that “(a) controversy has arisen and now exists between plaintiffs and defendants and, indeed among defendants, relating to their rights and duties.” Compl. ¶ 169 (emphasis added). Having named two sets of John Doe parties defined by their opposing interests – as defined by the state, Does I-X support the AMMA, and Does XI-XX oppose it, see Compl. ¶¶ 167-68 – the state can make the logical (if circular) claim that a conflict exists ‘among Defendants.’ But that is not the test of a case or controversy: a dispute must exist between defendants and plaintiffs. See, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 20 (1998) (“[C]ourts will not pass upon abstract, intellectual problems, but adjudicate concrete, living contests between adversaries.” (citations, internal quotation marks, and source’s alteration marks omitted, and emphasis added)). The state seems to hope that the court will allow some conflict among any subset of the parties to qualify. But it is impossible for the state to litigate with ‘concrete adverseness,’ Baker, 369 U.S. at 204, if it is indifferent to the outcome of its lawsuit.
“In fact, the only interest of its own the state has identified is to ‘ascertain [its] rights and duties,’ Compl. ¶ 171, or the resolution of legal ‘uncertainty.’ Compl. ¶ 165; see also id. ¶ 28 (demanding ‘reasonable certainty with respect to the application of both state and federal law’). This abstract interest in legal ‘certainty’ does not a case or controversy make. A suit seeking nothing but ‘certainty’ is by definition asking this Court to render an advisory opinion – a practice ‘disapproved by [the Supreme] Court from the beginning’ of the Republic. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998) (citing Muskrat v. United States, 219 U.S. 346 (1911), and Hayburn’s Case, 2 Dall. 409 (1792)).
     “In sum, the state has no position regarding how this Court should answer the question the state has asked; the state desires only that the question be answered. This posture reveals the absence of a genuine and concrete controversy between plaintiffs and defendants, and reduces this lawsuit to a plea for an impermissible advisory opinion.”
     The possibility that Arizona state employees may be prosecuted for following the Arizona Medical Marijuana Act “is purely speculative and not sufficiently concrete to generate a ‘case or controversy,'” the ACLU adds.
     The ACLU claims that the state’s either/or request for relief – either a declaration that the state law is void, or a declaration that “strict compliance and participation in the AMMA provide a safe harbor from federal prosecution” – presents “a false choice between two legally incorrect results.”
     The American Civil Liberties Union represents the Arizona Medical Marijuana Association, which describes itself on its website as a nonprofit membership association that “seeks to advance the interests of Arizona’s medical marijuana profession and the patients it serves.”
     The first sentence in the ACLU’s Introduction sums it up: “This is a peculiar case.”

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