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Horne: Anticipated fed stance could clear path for medical marijuana program

Attorney General Tom Horne (Photo by Evan Wyloge/Arizona Capitol Times)

Attorney General Tom Horne (Photo by Evan Wyloge/Arizona Capitol Times)

While the U.S. Department of Justice is imminently expected to release a statement clarifying their stance toward medical marijuana, Attorney General Tom Horne said Wednesday that if the federal government’s 2009 position is reiterated in the awaited clarification, the lawsuit he and Gov. Jan Brewer filed in federal court late last month challenging the legality of Arizona’s new medical marijuana program could be unnecessary.

That 2009 position, widely referred to as the “Ogden Memo,” states that individuals who are in clear and unambiguous compliance with state medical marijuana laws will not be a prosecutorial priority of the Justice Department. It has been largely responsible for the perceived legal protection states with medical marijuana programs have operated under in recent years.

But as confusion has percolated from the reading of letters reminding states that marijuana is still illegal from federal prosecutors in various medical marijuana states, the confidence in the Justice Department’s not-quite-promise not to prosecute has eroded.

Horne and Brewer cited one such letter from Arizona’s U.S. Attorney Dennis Burke in conjunction with similar letters from U.S. Attorneys in other states when they announced the lawsuit they filed on May 31 that put a halt to certain provisions of the state’s new program.

“If (U.S. Attorney General Eric Holder) said they weren’t going to prosecute people who are in clear and unambiguous compliance with state law – essentially a reiteration of Ogden – especially if they include an assurance that they would not prosecute, the (federal) suit could be stopped,” Horne said.

The attorney general would not elaborate on what mechanism could be used to stop the federal suit, saying that it would be determined if he found himself in that situation.

With regard to the lawsuit filed in state court by hopeful dispensary owners aimed at forcing the Arizona Department of Health Services to restart the marijuana dispensary application process, the part of Arizona’s new law that was derailed with the federal suit, Horne said he has staff attorneys preparing a response that would ask to allow the federal lawsuit to play out first.

“We need a ruling from the federal court, and we’re researching precedents for when an important ruling from a federal court would affect a suit like the one in state court,” Horne said.

Horne said his office’s response could include either a request for a stay on the state-level suit until the federal suit is settled, or a request to have it deemed as a part of the federal suit, as the case can be made that it argues the same larger issue.

A representative from the Justice Department said Wednesday there is not yet a timeline for when the agency will release their new medical marijuana stance. Allen St. Pierre, the director of the National Organization for the Reform of Marijuana Laws (NORML), said Justice Department officials told two of his attorneys on June 16 that the agency was trying to issue their stance by early this week.

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