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.