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ACLU asks judge to dismiss state’s medical marijuana lawsuit

The American Civil Liberties Union of Arizona asked a federal judge Thursday to dismiss a lawsuit the state filed against the federal government over medical marijuana.

The civil-rights organization contends there is no controversy to bring a suit.

The suit, filed May 27 in U.S. District Court, is seeking a determination of whether state employees who facilitate Arizona’s new medical marijuana program will be prosecuted under federal laws prohibiting the use, sale or cultivation of the drug. The state also asks in the alternative whether the federal Controlled Substance Act supersedes state law.

The ACLU is representing the Arizona Medical Marijuana Association, an organization consisting of people who advocated for the passage Proposition 203, the Arizona Medical Marijuana Act.

“On the pretext of protecting her state employees, Gov. (Jan) Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine,” ACLU staff attorney Scott Michelman said in a press release.

The ACLU motion to dismiss states that Arizona fails to take a position in the lawsuit, effectively asking the court to issue an advisory opinion, which the U.S. Supreme Court has held to be impermissible.

In memos to U.S. Attorneys, DOJ has said prosecuting ill people who are in compliance with state medical marijuana laws is not a priority, but the federal government will go after large-scale cultivation sites and dispensaries. The memos were silent on whether state employees regulating the laws would be prosecuted.

Upon filing the lawsuit, Brewer and state Attorney General Tom Horne said it was prompted by a May 2 letter from U.S. Attorney Dennis Burke in which he said that marijuana remains illegal under federal law and that it is possible for traffickers and others to be prosecuted.

The letter didn’t mention state employees, but Burke said on the same day of the lawsuit filing that prosecuting state employees was not a priority and won’t be.

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