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June 1, 2011

Host: Ted Simons

Medical Marijuana Lawsuit

  |   Video
  • Arizona’s Governor and Attorney General have filed a federal lawsuit to find out if the State’s medical marijuana law is constitutional and to determine if State workers who administer the program could face criminal prosecution. Attorney Scot Claus, a partner in the Phoenix law firm Mariscal-Weeks, gives his take on the lawsuit and the constitutionality of Arizona’s medical marijuana law.
  • Scot Claus - Phoenix law firm Mariscal-Weeks
Category: Medical/Health   |   Keywords: marijuana, law,

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Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. The state health department today was to begin accepting applications for medical marijuana dispensaries, instead the department started turning away applicants. The program has been put on hold while the courts sort out a federal lawsuit filed by Arizona's governor and attorney general. They're suing to find out if the medical marijuana program violates federal law and if state employees who administer the program could face prosecution. Those concerns stem from a recent letter by Dennis Burke, the U.S. attorney for the district of Arizona. In the letter Burke warned of potential legal risks. He talked about those risks on a recent "Horizon" broadcast.

Dennis Burke: We had been given guidance some time ago from the Justice Dpartment about this, a memo came out by David Ogden, the deputy attorney general, and said two U.S -- to U.S. attorneys, guidance to us. Look, this is not a priority for the Department. People who follow the state medical marijuana laws, because there's a proliferation of these across country, but that said, it is still against federal law. And what my letter said last week is follow that guidance, which is, we're telling individuals who are involved in this system, we're telling the state of Arizona at the end of the day, you can decriminalize what you want at the state level, but you can't legalize it federally. You can't provide a safe haven by changing state law for what is in violation of federal law. And it's still a violation of federal law.

Ted Simons: What is the message? If I want to set up a distribution center, what is your message to me?

Dennis Burke: It's a risk you always take. It's a risk that you're still in violation of federal law. We're not going to give you immunity. We're not going to give you immunity, we’re not going to give you a safe haven. You're taking a risk. Just because the state of law passed a law that said we believe the state level this should be legal, that doesn't take away the federal law.

Ted Simons: And here now to give us his legal take on Arizona's medical marijuana law is Scot Claus, a partner in the Phoenix law firm of Mariscal-Weeks. We just heard the US Attorney here, saying basically, it sounds like this is pretty much the crux of what the confusion is, attorney general and governor -- they're looking for a declaratory judgment. What does that mean?

Scot Claus: It gets back to the Constitution. The Constitution says federal courts can only make decisions in cases or controversies. So there's a statute, 28 United States Code 2201 that says that a court can declare the rights of interested individuals in a case or controversy. It's different than a lawsuit that you might bring for breach of contract, or for getting in a car accident. It's -- the Arizona state government saying, court, we need you to declare the rights of the state of Arizona, the rights of the workers for the state of Arizona who are going to be implementing, maybe, the Arizona medical marijuana laws, and we need to you declare the rights of the interested citizens, the participants, the dispensaries, the potential users. Because it appears to us, federal court, that the rights that are declared by the Arizona medical marijuana law and the Controlled Substances Act, the federal statute that controls the use, acquisition, and distribution of controlled substances, are in conflict.

Ted Simons: From where you sit, from how you see this, are they in conflict?

Scot Claus: Well, yes. You have to start with, again, get back to the Constitution, you have to get to Article 6. It's the forgotten article of the United States constitution. Article 6, it contains the Supremacy Clause. I brought my constitution with me. It says, this constitution and the laws of the United States which shall be made in pursuance thereof shall be the authority of the United States and shall be the supreme law of the land, and the judges in every state shall be bound thereby anything in the constitution or laws that any state to the contrary notwithstanding. So the framers of the United States Constitution said that the -- this constitution, the United States constitution and the laws created by Congress pursuant to the constitution, are the laws of land. And states can't make laws that contradict that law.

Ted Simons: And we've seen this now, we just saw a decision with employer sanctions, we're waiting a decision regarding to 1070, to see where that goes regarding – regarding supremacy, this clause has been all over the news lately. And yet we've had the U.S. attorney on this program, as we just saw, saying that it's not -- no safe haven. You can decriminalize, no safe haven, but he also said, we're not going after sick people. We're not going after folks that are following the law. We're going after the big guys. What's a state to do?

Scot Claus: Well, a state is to do what Arizona did. A state is to ask the federal court to declare the rights of the state to declare the rights of the state employees, because you heard -- you heard U.S. Attorney Burke. He said anybody who wants to follow the state law is in his words, at risk. And it's not fair to ask inhabitants of the state, it's not fair to ask director Will Humble when he's administering the laws passed by Arizona governors and signed into law by Governor Brewer, it's not fair to ask those people to imperil themselves and perhaps be at risk of violating a federal law that has felony sanctions because they're complying with a state law. And so I think Arizona has done the right thing in saying, court, please declare who's right. Declare whether or not our law can withstand the supremacy clause of the constitution.

Ted Simons: You mentioned inhabitants of the state. A lot of attention focused on workers, state workers and such cause the Governor kinda emphasized that. But we got a lot of patients in the state as well who could be at risk. And yet we talked about this earlier, there's a whole aspect of privacy, with health concerns and these sorts of things, that becomes very interesting in all this.

Scot Claus: It is very interesting. I used the phrase constitutional stew. I think that there are a lot of constitutional issues implicated by this lawsuit, a lot of constitutional issues that are implicated by the medical marijuana act, and its seeming conflict with federal law, because as is pled in the complaint, under Arizona's medical marijuana law, the identity of patients or subscribers must be kept confidential. Their rights must be kept private. It recognizes the individual's rights of privacy. The complaint also points out, however, that under Title 18 of the United States Code Section 2, and other subsections of the United States code, if you know, if you are a state worker and you know that somebody is committing a federal offense, a federal drug felony, you must report that activity. So there is a potential tension between a duty -- if I'm a state worker there's a potential tension between the duty of the state employee under state law to keep the rights private of the subscriber, and the duty under federal law to report that user. And this is interesting because it really raises what has been recognized as a fundamental constitutional right. It's been called a penumbral right -- it's not an enumerated right, but it's recognized as a penumbral right. An essential right of privacy. So you have this right of privacy that has been recognized by the United States Supreme Court over and over again, and that essential right may be in conflict, it may be the ping-pong ball that is being played between the application of the state law and the proscriptions of the federal law.

Ted Simons: Let's use another metaphor. It could be the card that you pull and the whole house of cards regarding what is legal and illegal as far as drugs are concerned in this country,that could be a house of cards here, couldn't it?

Scot Claus: It depends upon how the issues are framed in the lawsuit, it depends upon how the issues are framed by the United States. I don't even know if the lawsuit has been served and I don't know what the response of the United States is going to be to the lawsuit. But the fact that this fundamental right of privacy is implicated and is intentioned because of the coexistence of the Arizona law and the federal law, that's an issue that we haven't seen played out in the courts before. There's a 2005 case, Gonzalez versus Raich, which dealt with California's drug -- marijuana legalization program. And the attack in that case was on the ability of Congress to regulate local activity. And the Supreme Court said, no, under the commerce clause, another section of the constitution, article 1, section 8 of the constitution, under the commerce clause, Congress can regulate even local activity if that local activity affects or potentially affects interstate commerce. And so -- and that's where the court left it. The court didn't address the substantive privacy issues because the privacy issue it may implicate a due process right. And those are rights that everyone recognizes. Those are enumerated rights in the constitution, those are rights that are subject to being protected unless the government can show a compelling reason to upset them.

Ted Simons: Last question -- does this case have the potential to be even more substantial just in terms of legal issues, than the SB 1070 case? What we just saw with employer sanctions?

Scot Claus: I -- again, it's that constitutional stew. This case implicates article 6 of the constitution, article one section 8; article 1, section 8, clause 19; It implicates the 9th amendment, the 10th amendment. It really puts into play some -- for my perspective, it's fascinating, and it is also important because it really does implicate fundamental rights. So it has the potential of being a real sounding board on how fundamental rights are treated by the courts.

Ted Simons: Great stuff, Scot. Thank you so much for joining us on "Horizon."

Scot Claus: Thank you. Appreciate it.

Sustainability: Transit Oriented Development

  |   Video
  • We’ll take a look at a new initiative to guide, and economically incentivize, future commercial and residential development around the Valley’s light rail system.
Category: Sustainability   |   Keywords: sustainability,

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>>> Tonight "Horizon's" continuing coverage of sustainability issues focuses on transit oriented development. It's a priority for the nonprofit sustainable communities working group. Earlier today the public-private partnership launch add multimillion dollar fund to guide residential and commercial development along the valley's light rail line. More on that in a moment, but first, here's part after video presentation shown at today's launch.
Video: The only way you play any meaningful way in a society is if you have an automobile.
How do you create a sustainable community? A city that actually will be here in 150 years? There are limits. $5 a gallon gas certainly enforces this limit. We can't continue to do what we're doing. There's a whole team of people who would say people move to Arizona for a single-family home, and I would say that's all we've offered them. We want to be like any other neighborhood. We want the same amenities. We want recreation. Restaurants are closed, programs are cutbacks, arts are being affected, independent businesses have been struggling. There aren't the people down here to support these businesses. Once the nation's fastest growing urban area, the region's population growth has slumped to a stagnant 1%. Over 40,000 people have walk audit way from their homes and unemployment is the second worst in the nation. Trends are clearly changing. And local leadership is taking another look at assumptions made in past decades that currently define our quality of life today. To try to build farther and farther out in bigger and bigger cities has a huge cost to it. Fuel costs are now driving some people out of their homes. It's not that they can't afford their home payment, they can't afford their home payment, and the cost of the transportation it takes to get to their jobs. It's a huge cost to an individual, their lifestyle and their family. A major strategy on how to address these challenges involves utilizing the region's new light rail system along with TOD model, or transit oriented development. Which suggests that instead of building a city for automobiles, urban centers should be built on the human scale. What we have constructed initially are the opportunity for people to have a real urban experience. You could live in Mesa, take a class in downtown Tempe, and have dinner and go to a sporting event in downtown Phoenix and never get in a car. Light rail provides the opportunity now to make sure that not only does it supply transportation for wealthy people who happen to live in condos in a very urbanized variety, but it also gives us the opportunity to provide services to our community members who otherwise can't afford an automobile or transportation.

Ted Simons: Joining me to talk about transit oriented development is Mesa Mayor Scott Smith and Teresa Bryce, CEO of the Local Initiatives Support Corporation, a major contributor to the $20 million sustainable communities fund. Thank you for joining us. Mayor, we'll start with you. Transit oriented development. What are we talking about here?

Scott Smith: We're not talking about anything new. We've done development that surrounds transportation for a long time. There's a reason why when you look at our freeways you see commercial development, high density Development that's near freeway interchanges. What we're doing is something more focused on transit. Light rail. That development that is specifically geared toward what goes on around a light rail station.

Ted Simons: How does that development differ from general development? How does city planners look at this and say, it's a little different than what we usually do.

Teresa Brice: I think the most important thing is that it's not auto dependent. That's the whole point of transit oriented communities. The fact that you can live and work and get your kids to school and pick up the groceries without having to get in your car because all those service are five minutes from your home.

Ted Simons: Transit oriented development has been around a while. Are there aspects that are growing as we speak? Is TOD already an outdated term?

Teresa Brice: We like to talk about transit oriented communities. Because what we’ve learned, it's not a single project or a single development that actually creates the kind of sustainability that we're looking for and that we're looking to transit to reinforce.

Ted Simons: As far as this fund is concerned, how much money are we talking about? How much is needed, how many is procured?

Scott Smith: We need as much as we can get. We have $20 million that's been committed, that is sort of like seed money or priming the pump. Development along the light rail is a new concept for Phoenix. Because we only have a brand-new light rail. It's not new in other areas, but it's a new concept. We've got to find out exactly how best to do it here. So to have this seed money by two organizations that are widely recognized and that are renowned, hopefully will serve as somewhat of a call for others to take a look at this, become involved, bring your money to the table and we can create something pretty exciting.

Ted Simons: the seed money, your organization very much a part of this $20 million. I was heard it was described as a bridge loan. Is that accurate?

Teresa Brice: The funds that we've made available both through LISC and the Raza Development fund are flexible money, but it's not long-term permanent financing. That's where you may have heard the term bridge financing. But our funds can be used as acquisition funds, as short-term construction money, it can be used for predevelopment activities. The idea is that the funds are really in play for a short period of time, and intended to be taken out by permanent financing when the project is underway.

Ted Simons: Talk about your company and why this company decided to invest here now.

Teresa Brice Local Initiatives Support Corporation is a 30-year-old national nonprofit lending institution. And our goal is to revitalize communities. Now, that takes a very different form on the East Coast where LISC was started, but the Phoenix office that actually has been here for 20 years is really based in our marketplace. What we understand is that the housing crisis has hit our community very, very hard. That's not news. What LISC’s approach is trying to build sustainable communities by knitting together housing and jobs, transportation, economic development, and taking a comprehensive revitalization approach to rebuilding neighborhoods.

Ted Simons: If that's the goal, and now the communities get the money, where does the money go? What do we see coming out of this right now, $20 million, which could be more?

Scott Smith: We're hoping that it goes to the kind of development that creates additional opportunities. The important thing about this transit oriented development, it's not a novelty. It not something that we do just because it feels good. This is real life, a real type of -- an additional option that we're providing to our citizens that comes when you have a mature multimodal transportation system. And what we're hoping with the seed money is that we create the communities that once again people of all demographics, income levels, can enjoy, create a true urban living opportunity that doesn't exist in Phoenix right now.

Ted Simons: Are we talking grocery stores, are we talking health care services? Apartment buildings?

Scott Smith: What does it take to create a community, a neighborhood? It's the same thing. It's just packaged differently. It's packaged to take advantage of what a light rail, what that type of transportation provides. That's why -- one of the differences between this and freeway building, where you draw lines and then you do development piecemeal and fill in the gaps. This will happen organically, like neighborhoods grow. You'll have mixed housing, housing requires services. Services will develop in that area and once again, since it is not auto centric, but it's about walking and using transit, those will develop within walking distance.

Ted Simons: I hear radar going up from some folks, when they hear creating communities, they think, mentioned organic, but some folks are saying, you know, is the need there? Is it going -- if it hasn't happened already, does that suggest maybe the need is not there?

Teresa Brice: Well, as mayor mentioned, our light rail line is brand-new. It is a public infrastructure investment that our entire region voted on when we passed proposition 400. And that new amenity has the opportunity to reshape how our valley grows. Our valley has been unbounded, and we've been able to spread out further and further and be the old adage about drive until you qualify hits home. But what we're seeing is, in addition to a change of demographics, high prices for gas. People need another option. And we are now able to offer that option because we're tying the development to transit.

Ted Simons: So again, the seed money goes to help a developer who wants to build a grocery store, to help a developer who wants to build maybe affordable housing, is that where the money goes?

Teresa Brice: Exactly. Let me give you an example. There's a project that was just approved for the low-income housing tax credit program. It's called Gracie’s Village. It's in Tempe. It's actually turning an existing thrift store into a new development by transforming the existing building, it's going to have a new thrift store, 60 units of affordable housing, it's going to have before school and after school care, and it's going to have a medical center. So we're combining all of these into mixed income, mixed use development that can meet the needs of people by just walking out their door.

Ted Simons: That's happening in Tempe, I know a lot of folks who right light rail can see that stretch down Washington and think, something's got to happen here, because it's waiting for some kind of development. You're the mayor of Mesa. How does the mayor of Mesa, Phoenix, Tempe, how do you guys all get together and the planners get together and make sure that everyone gets along?

Scott Smith: Well, here's the important thing. A light rail is not a local system. It's a regional system. Any rail system is regional. And so we have to work together in order to maximize the opportunity. That's the important thing. We don't have to have this kind of development for our light rail to be successful. It's already proven that people will drive to the park and ride, they'll get on light rail, they'll use it. But we would be passing up an incredible opportunity to create this option to create this great investment if we didn't take advantage of the opportunities of transit oriented development in this region along all three cities provides. And we all have abundant opportunities to make for some great development along the light rail.

Ted Simons: Is that collaboration there? Are you seeing that with this particular project?

>> We're seeing that because we all have the same goal. We want to create a high quality, diverse lifestyle where people do have options. Not everyone likes urban living. Living along the light rail is not for everyone. People still will like the suburban or rural living. But there's a significant part of our community especially younger generation, that wants, seeks, needs this type of opportunity and it's a great public-private partnership. The public has made a huge investment in light rail. Hundreds of millions of dollars. There's ample opportunity for private investors to come in, develop the property along the light rail, take advantage of that public investment, and to create something great. It creates jobs, it is sustainable and it adds another dimension that defines a mature metropolis. There's not a mature metropolis in this entire world that does haven't a multimodal system of transportation, that does haven't a variety of opportunities. That's something that Phoenix as a young metropolitan area is going to grow into and this is a great opportunity.

Ted Simons: You both mentioned whether it's living far out and you can talk about gas prices, you can talk about the whole nine yards, and yet, there are folks who do like to live far out, and homes -- when the economy comes up again, we know home building will continue on some of the outskirts of town. Is this the kind of project that looks good now, but once the economy rebounds or gas prices fall, everyone is going to start running out to the exURBS again?

Teresa Brice: What we've seen across the country is the places that have held their values the most, are places that are adjacent to transit. When we begin to see the market rebound, we see those areas that are close to transit begin to rise significantly. That's why having this fund now is so important. Because we need to secure those properties, those lots. So that we can plan to have a variety of housing options available for all incomes.
Ted Simons: All right. Very good. Thank you both for joining us on "Horizon."