When entrepreneur Ian Christensen looks around the white-walled office he hopes to lease in Paradise Valley, Ariz., he sees opportunity. Now all he needs is some pot. Like hundreds of others here, Christensen has sunk tens of thousands of dollars into his plans to sell medical marijuana legally, which voters approved by referendum in November.
He’s starting to wonder if he’ll ever open up shop. Governor Jan Brewer, a Republican who opposed the initiative, has found a new way to try to keep it from going into effect: She brought a suit in federal court in Phoenix asking a judge to decide whether the Arizona statute should be struck down because it violates federal antidrug laws. Brewer has said she is concerned that people who operate marijuana dispensaries and state workers who oversee the pot trade may be subject to federal prosecution. The ruling could also affect California and 14 other states that allow marijuana for medicinal use. “They put the dispensaries out of business before we ever started,” says Christensen. Brewer maintains the lawsuit has nothing to do with her own feelings about legalizing medical pot. She has taken no position in the case, says her spokesman, Matthew Benson—she’s just looking out for Arizonans. Whatever her motivation, Brewer has delved into a murky area in the relationship between the states and the federal government. Selling and possessing pot is illegal under federal law, even for medical use. State medical marijuana laws have existed on questionable legal ground since California became the first to authorize it in 1996.
The U.S. Justice Dept. has sent mixed signals. A 2009 Justice memo to U.S. attorneys said federal resources shouldn’t be spent prosecuting people complying with state medical marijuana laws. Late last month, however, after more states began implementing or considering commercial licensing programs for medical marijuana, Deputy U.S. Attorney General James M. Cole wrote in a memo to federal prosecutors that those who grow, sell, or distribute marijuana or “facilitate” those activities risk prosecution. Brewer accused the Justice Dept. of “continued confusion and doublespeak.”
She isn’t the only governor seeking clarity. In April, Washington Governor Christine Gregoire, a Democrat, asked the federal government for guidance when she was weighing whether to approve a licensing system in the state, which legalized medical marijuana in 1998. Washington’s U.S. attorneys responded that those who grew and distributed marijuana risked prosecution—as would anyone who facilitated those operations, including state employees. Gregoire vetoed the measure. Two weeks after Brewer filed her suit on May 27, New Jersey’s Republican governor, Chris Christie, announced he would delay his state’s medical marijuana program until U.S. authorities clarify their position.
The American Civil Liberties Union has asked the court to dismiss Brewer’s lawsuit. Among other arguments, the ACLU says states shouldn’t be able to challenge the legality of their own laws in federal court. “It will be a significant ruling that will affect how medical marijuana laws are implemented and how they may or may not be challenged in the future,” says Scott Michelman, an ACLU staff attorney. Would-be dispensary owners are suing in state court to force the governor to license their businesses.
Meanwhile, a more casual medicinal marijuana market is taking hold in Arizona. Absent licensed dispensaries, the law lets approved patients grow or designate “caregivers” to grow up to 12 marijuana plants. Caregivers aren’t subject to the stringent state regulations that would govern dispensaries. More than 6,500 patients have received medical marijuana cards since the program began in April, according to state health department statistics, with 75 percent indicating they planned to grow their own.
Ingrid Joiya, who says her company has invested nearly $250,000 to develop a chain of dispensaries with cashless vending machines, is working to revamp her plan using marijuana from caregivers. “We financially committed to these things, to put money in an economy in a state that desperately needs it,” she says. “It is a nightmare. … Voters voted on this, and the governor is trying to stop it under a ruse.”