AZ prop 203 to finally be implemented

[Madjag]

Hey Wave,

The filtered sun is fine for now, especially considering the hot air for helping growth.

Questions:
- What sized containers and what material? Do you have drain holes?
- The FFOF and soil mix sounds right. I think it's just the adaptation going on. I have seen 10 day plantlets taking their time and not until 2-3 weeks did they take off.
- If the pots are too large it will also make the takeoff a bit longer.
- You're watering them OK I suppose?

 

[kal el]

I am in the heat, I shade as much as possible from noon on once the plants are established.
Water daily.
They can handle the heat, it's the sun you have to watch out for, bleaches and fries them up really fast if the plants are not acclimated.

 

[waveguide]

chucked em in the shade today, where it's still plenty bright enough, so i'll reevaluate in a few days. could be that we're on a hill and get extra heat or something. there's a lot of flagstone baking out there too.

working in nurseries i'd never stop and think gee that weed is getting too much heat and sun, but i've never had a nursery right here either.

will play it on the safe side for a while, the point about afternoons noted. she'll be right.

an example of my fine craftsmanship.. auto kush, 10 weeks old. first half got screwed by gnats (rapacious) second half probably by the agsil i'm using to keep the gnats down..

you guys ordered the light entertainment, right??

 

[Madjag]

Sedonalithic

Sedonalithic

 

[kal el]

I see the suit got tossed by the judge.
Have to get it on the ballot and vote it away.

 

[Madjag]

Argument: I am likely to prevail on the Merits

Argument: I am likely to prevail on the Merits

Here's Billy Hayes' lawsuit and "PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION" for all of you that like to examine what's what:

02/16/2012
CV12-0322-PHX-SRB
Hayes v. Arizona, State of, et al
BILL B. HAYES, JR.
Pro Se

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

BILL B. HAYES, JR.
Plaintiff,
v.

STATE OF ARIZONA; JANICE K. BREWER, Governor of the State of Arizona, in her Official Capacity; WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; ROBERT C. HALLIDAY, Director of the Arizona Department of Public Safety, in his Official Capacity;

Defendants.


Case No.:


PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT THEREOF


ORAL ARGUMENT REQUESTED



Table of Contents


Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3


Parties………………………………………………………………………………….3



BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..4


LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….... 6


ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………....... . 7


I am likely to Prevail on the Merits .………………………………………............ 7


Severability/Facial Challenge of A.R.S. 36-2804.02(A)(3)(f), exclusively . . . . . . 8


Ripeness……………………………………………………………….……..…...12


C. A.R.S. 36-2804.02(A)(3)(f) is Unconstitutional under U.S. Const. amend. XIV……………………………………………………………………………......17



I Will Suffer Irreparable Harm Absent a Preliminary Injunction……………………….17



A Balancing of Equities Favors Me as the Plaintiff and Demonstrates that the Public Interest Would be Served by Granting Injunctive Relief………………………………. 18



CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……….. . 20
COMES NOW, The Plaintiff, Bill B. Hayes, Jr., Pro Se and hereby moves this Court to preliminarily enjoin enforcement of Arizona Revised Statute 36-2804.02(A)(3)(f), (hereafter “25-Mile Rule”) and to preserve the status quo with respect to that portion of the Arizona Medical marijuana Act (hereafter “AMMA”) that allows for cultivation of Medical marijuana under clearly delineated circumstances. At a minimum, the within request is advanced until such time as the matter can be litigated via Oral Argument, which is requested herein. The within challenge is specific to the 25-Mile Rule, exclusively and should not serve to forestall proceeding forward with the remainder of the Act. In support of the within, I state as follows:

Introduction

Although a state may adopt regulations that have an indirect or incidental effect on Medical marijuana, a state may not establish state laws in a manner that interferes with Federal Equal Protection under the 14th Amendment to the United States Constitution. See also: U.S. Const. amend X. The State of Arizona and Janice K. Brewer have crossed this constitutional line by adopting A.R.S. 36-2804.02(A)(3)(f).

A. Parties

I,Plaintiff Bill B. Hayes, Jr. am a resident of the City of El Mirage, in the State of Arizona. I am the former Chief Executive Officer (“CEO”) of Arizona Cannabis Society (“AZCS”), a non-profit organization.

Defendant State of Arizona is a sovereign state of the United States.
Defendant Janice K. Brewer is the Governor of the State of Arizona (hereafter “Governor Brewer”). In that capacity, Governor Brewer is vested with the supreme executive power of Arizona and is responsible for the execution of all laws, including the Arizona Medical marijuana Act (hereafter “AMMA”), as codified in A.R.S. 36-2801, et. seq.

Defendant Director Will Humble (hereafter “Director Humble”) is the Director of the Arizona Department of Human Services (hereafter “ADHS”). In that capacity Director Humble is responsible for the implementation of and overseeing of the AMMA.
Defendant Robert C. Halliday (hereafter “Director Halliday”) is the Director of the Arizona Department of Public Safety (hereafter “DPS”). The DPS employees, under the direction of Director Halliday, perform criminal background checks and use the web-based verification system of the AMMA to verify registry identification cards, issue criminal citations, arrest suspected offenders of violations of Arizona criminal laws, etc.

Background

The AMMA was passed by Arizona voters in November 2010, and became law on December 14, 2010. The same was subsequently codified in A.R.S. 36-2801, et. seq.

Pursuant to A.R.S. 36-2804.02 (emphasis added), Registration of Qualifying Patients and Designated Caregivers,

A. A qualifying patient may apply to the department for a registry identification card by submitting:

1. Written certification issued by a physician within the ninety days immediately preceding the date of application.

2. The application fee.

3. An application, including:

(a) Name, mailing address, residence address and date of birth of the qualifying patient except that if the applicant is homeless no address is required.
(b) Name, address and telephone number of the qualifying patient's physician.
(c) Name, address and date of birth of the qualifying patient's designated caregiver, if any.
(d) A statement signed by the qualifying patient pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.
(e) A signed statement from the designated caregiver, if any, agreeing to be the patient's designated caregiver and pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.
(f) A designation as to who will be allowed to cultivate marijuana plants for the qualifying patient's medical use if a registered nonprofit medical marijuana dispensary is not operating within twenty-five miles of the qualifying patient's home.

B. The application for a qualifying patient's registry identification card shall ask whether the patient would like the department to notify him of any clinical studies needing human subjects for research on the medical use of marijuana. The department shall notify interested patients if it is notified of studies that will be conducted in the United States.

A.R.S. 36-2801(11) defines a “Qualifying Patient” as a person who has been diagnosed by a physician as having a debilitating medical condition.

The AMMA has already been the subject of litigation in the United States District Court, for the District of Arizona, Case Number CV2011-01072-PHX-SRB. See: Exhibit B, Order, Case Number CV 2011-01072-PHX-SRB, attached hereto and incorporated herein. That Court Granted the Defendants’ Motion to Dismiss on jurisdictional grounds after the Defendants herein brought a Complaint for Declaratory Relief from compliance with the AMMA as a whole. The within matter is distinguishable from that litigation and should by no means be construed as anything other than a narrowly tailored constitutional challenge to only one provision of the AMMA; specifically, the 25-Mile Rule.

Upon the conclusion of the CV 2011-01072-PHX-SRB and the State cases regarding “Compassion Clubs”, Governor Brewer’s office stated for the record that they would no longer challenge the state’s Medical marijuana law in court and instead will cooperate to see that the voters’ demands are once and for all fully enacted. Said the Governor in a press release:
The State of Arizona will not re-file in federal court a lawsuit that sought clarification that State employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical marijuana Act. Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a (separate) pending legal challenge to the Department’s medical marijuana rules is resolved. … With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.

See: Exhibit A, January 13, 2012 Statement by Governor Brewer-Medical marijuana, Attached hereto and incorporated herein.
The Arizona Department of Human Services have also taken accelerative action toward full implementation of the AMMA, including the processing of applications for, and the licensing of, “Dispensaries” as defined by the AMMA. See: Arizona Department of Human Services Director’s Blog, http://directorsblog.health.azdhs.gov/?p=2175. Upon the acceptance of and licensing of Dispensaries, the 25-Mile Rule of the AMMA will be triggered. I do not live in a rural area and given my current address and the DHS guidelines for Dispensary locations, my cultivation rights under the 25-Mile Rule are in direct, imminent threat as a result of Dispensary locations that will be within the 25-Mile Rule radius.

Legal Standard

A preliminary injunction is warranted where, as here, I as the Plaintiff have established that: (1) I am likely to succeed on the merits; (2) I am likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the My favor; and (4) a preliminary injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129S. Ct. 365, 374 (200; Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009); Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009); see Fed. R. Civ. P. 65.


Argument

I. I am likely to prevail on the Merits

I am a Qualifying Patient with cultivation authorization from the State of Arizona under the AMMA. I currently possess a State of Arizona Medical marijuana state issued identification card verifying this status which due for renewal in April of 2012. At that time, I intend to renew my cultivation authorization. However, pursuant to the AMMA, by processing Dispensary applications and the licensing of the same my ability to renew my cultivation status will be affected whereas an equally situated Qualifying Patient residing beyond 25 miles from a Dispensary will be allowed to renew their cultivation authorization unabated and without threat of criminal prosecution at the State of Arizona level.

It is important to note that with respect to cultivation under the AMMA, there are limitations codified under A.R.S. 36-2801(1)(a)(ii) (emphasis added),

If the qualifying patient's registry identification card states that the qualifying patient is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the qualifying patient is moving.

Suffice it to say, at a minimum, granting the within prayer for relief simply preserves the status quo with respect to qualified patients’ rights to cultivation and will not result in some chaotic Medical marijuana program, with the State of Arizona being over-run by marijuana cultivation. In fact, marijuana Cultivation has been authorized under the AMMA ever since qualifying patient information began being processed and State Issued Identification cards began being issued in early 2011 and the State of Arizona has not suffered any damages as a result. It would be difficult to imagine a scenario where preserving the status quo whilst allowing the processing and licensing of Dispensaries while the within is resolved would lead to some sort of concrete (as opposed to speculative) damage(s) to the Defendants.

Severability/Facial Challenge of A.R.S. 36-2804.02(A)(3)(f),exclusively

As a preliminary matter, it should be noted that the within challenge is being Filed as a “Facial Challenge” to A.R.S> 36-2804.02(A)(3)(f), exclusively. As this Court is likely aware, a facial challenge is the argument that a law is void on its face; that it is necessarily a violation of the Constitution in any and all applications. United States v. Salerno, 481 US 739 (1987) at 745.

The proper remedy under such a case is typically not compensation but an injunction against enforcement and a declaration that the law is invalid. Such a challenge does not necessarily allege that the plaintiff was injured when the law was enacted, but rather when the government acts pursuant to that law and adversely affects the plaintiff’s rights. (Emphasis added). See: Marc E. Isserles, Overcoming Overbreadth; Facial challenges and the valid rule requirement, 48 AM UL Rev 359, 431 n. 319 (199.

As stated previously, the Defendants herein have taken active measures to act pursuant to the AMMA and such action will ultimately affect my ability to obtain State approved cultivation authorization while someone similarly situation, by pure incident of location will be able to receive State authorization without fear of, or threat of, State of Arizona criminal charges and penalties.

Make no mistake, I am not seeking compensation, but rather injunctive relief against the constitutionally infirm portion of the AMMA; the 25-Mile Rule, at a minimum until such time as the matter can be argued at Oral Argument or such time as this Court deems fit to resolve the same with some degree of finality.

When discussing the issue of the 25-Mile Rule, it is important to remember that the underlying assumption of complete, i.e., “facial,” invalidation, of the challenged statute (in this instance the entirety of the AMMA) ignores the interplay of the severability doctrine (as previously addressed herein) as applied to challenged statutes and is inconsistent with the Ayotte v. Planned Parenthood decision in which the Supreme Court instructed lower courts to hesitate before completely invalidating a statute as a remedy in facial challenges. Ayott, 546 U.S. 320, 328–31 (2006);

In Ayotte, which involved a facial challenge to a New Hampshire abortion statute, the Court held that entirely invalidating a statute pursuant to a successful facial challenge is not always necessary or justified when lower courts can respond more narrowly, while remaining faithful to legislative intent.

The Court explicitly acknowledged that in the past it had invalidated in their entirety abortion statutes sharing the same constitutional flaw present in the New Hampshire statute.

Yet, in Ayotte, the Court found neither that the facial challenge failed, such that the statute should be upheld, nor that it succeeded, such that the entire statute should be invalidated. Instead, the Court found that the facial challenge was sensible in some hypothetical applications and remanded the case to the lower court to fashion a narrow remedy.Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328–31 (2006); see also: Gillian E. Metzger, Facial Challenges and Federalism, 105 COLUM. L. REV. 873, 879 (2005) (“Defining facial challenges Salerno-style as leading to total invalidation . . . obscures the crucial role played by severability doctrine.”). Id. at 323. (The Ayotte Court considered a pure facial challenge—brought before the statute went into effect—to a New Hampshire abortion statute that prohibited physicians from performing an abortion on a minor until 48 hours after written notice of the abortion was delivered to her parent or guardian. Id. at 323–24. The statute did not provide an exception to the waiting requirement in the event of a medical emergency. Id. at 324. The Court found first that “a State may not restrict access to abortions that are ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,’” Id. at 327 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992)), and that New Hampshire had conceded that “it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks,” Id. at 328. The Court then analyzed the question of remedy and found that despite the fact that the challenge to the statute was necessarily facial because the statute had never been applied, a lower court should nonetheless craft a narrow remedy such as a declaratory judgment and injunction prohibiting only the unconstitutional application of the statute. Id. (citing Stenberg v. Carhart, 530 U.S. 914, 930 (2000)).

Recently, the facial challenges to the national healthcare legislation have resulted in split decisions regarding severability in the lower courts that have upheld the facial challenge. The U.S. District Court for the Northern District of Florida, for example, found the individual insurance mandate unconstitutional and determined that it was not severable from the Patient Protection and Affordable Care Act; thus, the court declared the entire Act void. Florida ex rel. McCollum v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120, 1165 (N.D. Fla. 2010).

By way of contrast, the U.S. District Court for the Eastern District of Virginia found the individual insurance mandate unconstitutional but it severed that provision leaving the remainder of the Act in place. Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 789–90 (E.D. Va. 2010). (Emphasis added).

Perhaps most relevant, timely and illustrative is the facial challenge brought against the State of Arizona’s SB 1070. The U.S. District Court for the District of Arizona severed the portions of SB 1070 determined to be facially unconstitutional from the entire statute rather than striking the statute as a whole. United States v. Arizona, 703 F. Supp. 2d 980, 1008 (D. Ariz. 2010), aff’d, 641 F.3d 339 (9th Cir. 2011).

It appears clear that the prevailing trend is that a Federal Court should not invalidate more of a statute than necessary. Alaska Airlines v. Brock, 480 U.S. 678 (1987). However, this conclusion has come only after a complicated history and synthesizing of decades of case law. In doing so, the Supreme Court created three underlying principles with respect to severability. Id.; Free Enterprise Fund v. Public Co. Accounting Oversight Board, 480 U.S. at 685 (2010).

Under Free Enterprise, (1) a reviewing must determine whether all of the remaining provisions of the statute in question are still fully functional without the constitutionally infirm provision. If so, then the inquiry turns to, (2) whether the legislature would be satisfied with the remaining statute (absent the constitutionally infirm provision).

In assessing the Free Enterprise analysis, it is noteworthy that the Supreme Court has elaborated, stating that “nless it is evident that the Legislature would not have enacted those provisions that are within its power, independently of that which is not, the invalid part may be dropped if what is left if fully operative as a law.” Champlin Refining Co. v. Corp. Commission of Oklahoma, 286 U.S. 210 (1932). Champlin further states:
The unconstitutionality of a part of an act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left if fully operative as a law.

Id. at 234-35. (Emphasis added).
In the instant case, the doctrine of severability applies and the Legislative intent requirement is satisfied simply by looking to the Defendants’ (herein, Plaintiffs therein) Complaint in State of Arizona, et. al. v. The 2811 Club, LLC, et. al., CV 2011-01129, Arizona Superior Court, the State of Arizona firmly stated that,
The purpose of the AMMA was to decriminalize the possession, use, production, transport, sale, or transfer of marijuana for certain explicitly delineated individuals and entities, specifically ‘nonprofit medical marijuana dispensaries,’ ‘nonprofit medical marijuana dispensary agents,’ ‘qualifying patients’, and ‘designated caregivers’.

See: Exhibit C, State of Arizona Complaint, Case Number CV 2011-01129, attached hereto and incorporated herein, at p. 4, para. 17, l. 23-27. (Emphasis added). By way of extrapolation, it is inarguable that by the State’s very own pleading, the 25-Mile Rule is in fact directly contrary to the intent of the State of Arizona in adopting the AMMA; that intent to decriminalize with respect to certain delineated individuals/organizations.

Accordingly, it is clear that the State of Arizona would have enacted those provisions which are within its power, independently of what is not. That position is further affirmed by the litigation instituted by the State of Arizona regarding a portion, or portions, of the AMMA, as opposed to the Act as a whole. As such, the 25-Mile Rule can be severed from the remainder of the AMMA for purposes of consideration by the within tribunal.

B. Ripeness

Having satisfied the standard regarding severability of the 25-Mile Rule as the portion of the AMMA that is being addressed herein as the constitutionally infirm portion of the Act, the inquiry next turns to “Ripeness”.
I am not unmindful of the fact that the federal courts may not render advisory opinions that address abstract legal questions. United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947). Article III of the Constitution gives federal courts jurisdiction to decide only actual cases or controversies. Wisconsin’s Environmental Decade, Inc. v. State Bar of Wisconsin, 747 F.2d 407, 410 (7th Cir. 1984), citing Poe v. Ullman, 367 U.S. 497, 502 (1961), and Muskrat v. United States, 219 U.S. 346, 354-57 (1911).

I maintain that there is no discernable test that exists to distinguish between an abstract question and a justiciable case or controversy, but I do believe that well-established principles have provided guidance. See: Babbitt v. United Farm Workers National Union, 442 U.S. 289, 297-98 (1979); J.N.S., Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir. 1983).

The Court has ruled, for example, that a party facing prospective injury (such as myself) has standing whenever the threat of injury is real, immediate and direct. "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979). A determination of ripeness requires a court “to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
Or there is the Seventh Circuit which has recognized that the mere existence of a law sometimes can serve as a threat that would in and of itself make ripe a claim challenging the constitutionality of the law. Schmidling v. City of Chicago, 1 F.3d 494, 499-500 (7th Cir. 1993), citing Babbitt, 442 U.S. at 298, New York State Club Ass’n v. City of New York, 487 U.S. 1, 8-10 (198, and Kucharek v. Hanaway, 902 F.2d 513, 516 (7th Cir. 1990) (holding ripe a claim by sellers of sexually explicit materials that obscenity statute that had not been enforced violated First Amendment based on plaintiffs’ assertion that they were deterred from selling materials because of fear of prosecution).

It is my belief that the basic question this Court should ask is whether the contentions of the parties present “a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Babbitt, 442 U.S. at 298, quoting Railway Mail Association v. Corsi, 326 U.S. 88, 93 (1945).

Perhaps better illustrative, in Abbott Laboratories v. Gardner, the Supreme Court laid out the basiccriteria for pre-enforcement ripeness. Now while in the context of a claim challenging thevalidity of regulations promulgated by the Commissioner of Food and Drugs, the same is not dispositive of the issues contained herein. Abbott Labs, 387 U.S. 136 (1967) (holding ripe for judicial review an action seeking injunctive relief and declaratory judgment that regulations were invalid), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).

The Court stated that the ripeness inquiry requires an evaluation of two factors: (a) the fitness of the issues for judicial decision and (b) the hardship to the parties of withholding court consideration. Abbott Labs, 387 U.S. at 149.

(a) In determining that the claim was fit for judicial decision, the Court noted that the legal issue did not depend on additional factual development and that the regulations constituted final agency action. Id. at 149-52.

(b) In determining the hardship the parties would suffer if the courts were to withhold consideration, the Court considered whether the impact of the regulations on the plaintiffs was direct and immediate, including whether the regulations had a direct effect on the plaintiffs’ day-to-day business operations. Id. at 152. The Court found that the claim was ripe because the Commissioner of Food and Drugs expected immediate compliance with the regulations, which exposed the plaintiffs to serious criminal and civil penalties if they failed to comply promptly. Id. at 152-53. (Emphasis added).

The Supreme Court has provided guidance for applying the ripeness factors from Abbott Laboratories to cases in which a plaintiff contends that a criminal statute affects his ability to exercise constitutional rights. In Steffel v. Thompson, 415 U.S. 452 (1974), for example, police officers threatened the plaintiff with arrest for violating Georgia’s criminal trespass statute if he did not cease distributing handbills that criticized the United States’ involvement in Vietnam. The plaintiff sought a declaratory judgment that enforcement of the criminal trespass statute against him would violate his First and Fourteenth Amendment rights. The Court held that despite the fact that the statute had not been enforced against the plaintiff, the threat of prosecution could not be characterized as “imaginary or speculative” and was sufficient to present an actual controversy. Id. at 459. (Emphasis added). Specifically stated, the Court reasoned that “n these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to been titled to challenge a statute that he claims deters the exercise of his constitutional rights.” Id. at 459.

In Babbitt v. United Farm Workers National Union, the plaintiffs sought an injunction and a declaratory judgment that various portions of an Arizona agricultural labor law were unconstitutional, including a provision that established criminal penalties for employers who committed unfair labor practices. Though the criminal penalty had never been enforced, the Supreme Court held that the issue was ripe because there was a credible threat of prosecution. 442 U.S. at 302. (Emphasis added). The Court stated:
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”
Id. at 298, quoting Doe v. Bolton, 410 U.S. 179, 188(1973).

In the instant case, as stated previously (and in the interest of not belaboring the obvious), there is an imminent threat of prosecution of me under the 25-Mile Rule given that the Defendants have taken active steps toward full implementation of the AMMA and by residing in a zone that will contain a Dispensary within a 25 mile radius I will no longer be authorized to cultivate Medical marijuana without threat of State prosecution, criminal and civil penalties, the likes of which are in stark contrast to the Voter intent to protect Qualified Patients. Such penalties range from misdemeanor to felony charges, probation to jail time, fines and even potentially State prison time. All the while I would still be a Qualified Patient for purposes of the AMMA; the class of individual the Act was designed to protect and the type of infirm that the Voters of Arizona contemplated would be utilizing Medicinal marijuana. See: Exhibit C.
The analysis would not be complete without pointing out MedImmune, Inc. v. Genentech, Inc.,549 U.S. 118, 127 S. Ct. 764 (2007). In MedImmune, the Court held that a private patent licensee could seek declaratory relief on patent validity and infringement without actually violating the license agreement and risking loss of the license. In explaining its decision, the Court drew on cases holding that parties could challenge the validity of criminal laws without actually violating them and risking criminal punishment:

Our analysis must begin with the recognition that, where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat – for example, the constitutionality of a law threatened to be enforced. The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.

Id. 127 S. Ct. at 772 (emphasis in original).
The Court in MedImmune endorsed the Abbott Laboratories formulation: “The dilemma posed by that coercion – putting the challenger to the choice between abandoning his rights or risking prosecution – is ‘a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.’” Id., (Emphasis added) quoting Abbott Laboratories, 387 U.S. at 152; see also: Epperson v. Arkansas, 393 U.S. 97 (196 (finding ripe a claim by high school biology teacher seeking injunction and declaratory judgment that state statute prohibiting teaching of evolution and subjecting violators to criminal prosecution and termination from teaching positions violated the First Amendment, even though there had been no threat of enforcement against her).

A.R.S. 36-2804.02(A)(3)(f) is Unconstitutional under U.S. Const. amend. XIV

The Fourteenth Amendment to the United States Constitution provides that no State “hall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.

Under the current AMMA scheme, if allowed to proceed unabated, a Qualifying Patient that is authorized to cultivate marijuana is subject to no Arizona State criminal charges (provided they are cultivating in accordance with the terms of the AMMA) so long as they are beyond the 25-Mile Rule radius of a Dispensary.

In turn, however, a Qualifying Patient that is not authorized to cultivate marijuana, simply the very nature of their location with respect to a state licensed Dispensary would be subject to the various State of Arizona criminal statutes, (e.g. A.R.S. 13-3405), with varying degrees of offense, from misdemeanor to felony (depending on the nature of the charge(s)) and subject to disastrous penalties and/or consequences. It is my belief that such action is neither what the voters of Arizona intended nor the legislature contemplated when codifying the AMMA. See: Exhibit C.
At a minimum, the statutory scheme warrants an Oral Argument to ascertain whether the same could ever be perceived as considerate of a Qualifying Patient’s Fourteenth Amendment Rights to Equal Protection under the laws as opposed to being a wholly infirm statutory provision.

II. I Will Suffer Irreparable Harm Absent a Preliminary Injunction

Upon demonstrating a likelihood of success on the merits, a plaintiff must also establish that, absent the preliminary injunction, there is likelihood that the defendant’s conduct will cause irreparable harm. See: Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 375–76 (200. Preliminary injunctive relief is necessary here because the 25-Mile Rule will cause irreparable harm to me in that my resources are limited and private cultivation has been crucial to my medicinal regime. The minute the 25-Mile Rule is triggered, my ability to medicate per the AMMA will be greatly compromised, while the preservation of the status quo will allow me the opportunity to utilize my cultivation experience and provide the best possible medicinal program for my condition(s). Not only that, but there exists a potential litany of lawsuits and the 25-Mile Rule is completely against public policy as is indicated by the voter’s approval of Prop 203 which led to the formation of the AMMA. This harm will only be magnified if the law goes into effect.

III. A Balancing of Equities Favors Me as the Plaintiff and Demonstrates that the Public Interest Would be Served by Granting Injunctive Relief

Finally, injunctive relief is necessary because a consideration of the public interest and the balance of hardships between the parties favors the abolishment of the 25-Mile Rule. See Stormans, 586 F.3d at 1127. In this action, which seeks to protect my interests as an individual Plaintiff, the burdens that will result absent injunctive relief are directly tied to the public benefits that will be protected if this Court issues the requested injunction. Cf. Nken v. Holder, 129 S. Ct. 1749, 1762 (2009) (stating, in the related context of criteria governing stay of removal, that the criteria of “harm to the opposing party” and “the public interest” “merge when the Government is the opposing party” because harm to the Government is harm to the public interest).

For example, there are thousands of similarly situated individuals such as myself. Not all of those individuals will elect to cultivate their own medicine, but for those that elect to, the same should not be disallowed as the impact could be a litany of litigation, criminal prosecutions of seriously ill patients, mass confusion for the Judicial System and the DPS, in that additional resources will need to be allocated to define these imaginary 25-Mile boundaries when responding to a criminal complaint. The cost to taxpayers alone, of the additional resources necessary to address this unconstitutional provision will be immeasurable. The same can simply be stalled pending resolution of the Constitutional issues regarding the 25-Mile Rule. In the interim, the status quo, while proceeding forward with the remaining portions of the AMMA is the most pragmatic and responsible approach given the gravity of consequences that could be faced in denying the request for Preliminary Injunctive Relief from the 25-Mile Rule, pending resolution of its Constitutionality at Oral Argument, or as this Court deems fit and proper in the premises.

By contrast, a preliminary injunction will not meaningfully burden Arizona. The 25-Mile Rule has not yet gone into effect, so an injunction in this context would have the effect of merely preserving the status quo. See U.S. Philips Corps. v. KBC Bank, 590 F.3d 1091, 1094 (9th Cir. 2010) (“[T]he very purpose of a preliminary injunction . . . is to preserve the status quo and the rights of the parties until a final judgment issues in the cause.”).
Were this Court ultimately to conclude that the 25-Mile Rule does not offend the Fourteenth Amendment to the United States Constitution, Arizona would then be able to implement and enforce the 25-Mile Rule without having suffered any substantial burden.
What is more, indeed, Arizona has no legitimate interest in the enforcement of a law that likely violates the 14th Amendment to the United States Constitution. See Chamber of Commerce of U.S. v. Edmonson, 594 F.3d 742, 771 (10th Cir. 2010) (“Oklahoma does not have an interest in enforcing a law that is likely constitutionally infirm.”).

Conclusion

For the foregoing reasons, the Court should GRANT my Motion for a Preliminary Injunction against the imposition of the 25-Mile Rule, pending resolution through an Oral Argument, requested herein (to be scheduled by the Court), and any and all other relief as this Court deems just and proper in the circumstances.

DATED: February 13, 2011
Respectfully Submitted,

____________________
Bill B. Hayes, Jr.
{Address}

Tel.

Pro Se


Peace,
Madjag

 

[kal el]

90 apps and 3 days left.
Looks like they will have a bunch within 25 miles of me.

 

[Madjag]

3 Apps already for Sedona and 12 for Flag!

 

[Madjag]

The 25 Mile Rule - Basic Explanation by Bill Hayes

The 25 Mile Rule - Basic Explanation by Bill Hayes

Here's an excerpt by Bill Hayes, the individual who has filed a suit to eliminate the "25 Mile Rule" concerning the distance one must live in order to continue to cultivate marijuana if you are a qualified Arizona Medical Marijuana patient.

From the Arizona Cannabis Society's website:

http://beta.indiegogo.com/No_25_Mile_Rule

"The spirit of the AMMA was to decriminalize medical marijuana use, cultivation, production, transportation and processing of marijuana by "qualifying patients" or in short to decriminalize marijuana use for a delineated group of individuals. This section of the AMMA is in stark contrast to the body of the AMMA as a whole and it is my thought that it was included to help sway reserved voters that have little or nothing to do with the AMMA other than their vote. Not to belittle that vote in anyway shape or form however, those that are actually involved with the AMMA as patients and caregivers have never expressed anything except contempt for this portion of the AMMA.

The Federal Equal Protection under the 14th Amendment to the United States Constitution states quite clearly that the state may offer criminal protection to one group of patients, those 25 miles or more away, while not offering the same protection to those within 25 miles of a medical marijuana dispensary.

This portion is directly from the lawsuit itself;

Severability/Facial Challenge of A.R.S. 36-2804.02(A)(3)(f), exclusively

As a preliminary matter, it should be noted that the within challenge is being Filed as a “Facial Challenge” to A.R.S> 36-2804.02(A)(3)(f), exclusively. As this Court is likely aware, a facial challenge is the argument that a law is void on its face; that it is necessarily a violation of the Constitution in any and all applications. United States v. Salerno, 481 US 739 (1987) at 745. The proper remedy under such a case is typically not compensation but an injunction against enforcement and a declaration that the law is invalid. Such a challenge does not necessarily allege that the plaintiff was injured when the law was enacted, but rather when the government acts pursuant to that law and adversely affects the plaintiff’s rights. (Emphasis added). See: Marc E. Isserles, Overcoming Overbreadth; Facial challenges and the valid rule requirement, 48 AM UL Rev 359, 431 n. 319 (1998).

As stated previously, the Defendants herein have taken active measures to act pursuant to the AMMA and such action will ultimately affect my ability to obtain State approved cultivation authorization while someone similarly situation, by pure incident of location will be able to receive State authorization without fear of, or threat of, State of Arizona criminal charges and penalties. Make no mistake, I am not seeking compensation, but rather injunctive relief against the constitutionally infirm portion of the AMMA; the 25-Mile Rule, at a minimum until such time as the matter can be argued at Oral Argument or such time as this Court deems fit to resolve the same with some degree of finality.

When discussing the issue of the 25-Mile Rule, it is important to remember that the underlying assumption of complete, i.e., “facial,” invalidation, of the challenged statute (in this instance the entirety of the AMMA) ignores the interplay of the severability doctrine (as previously addressed herein) as applied to challenged statutes and is inconsistent with the Ayotte v. Planned Parenthood decision in which the Supreme Court instructed lower courts to hesitate before completely invalidating a statute as a remedy in facial challenges. Ayott, 546 U.S. 320, 328–31 (2006);

Perhaps most relevant, timely and illustrative is the facial challenge brought against the State of Arizona’s SB 1070. The U.S. District Court for the District of Arizona severed the portions of SB 1070 determined to be facially unconstitutional from the entire statute rather than striking the statute as a whole. United States v. Arizona, 703 F. Supp. 2d 980, 1008 (D. Ariz. 2010), aff’d, 641 F.3d 339 (9th Cir. 2011).


Now many have already asked the question "can you use the federal protection act when what you’re doing is Federally Illegal?" and the answer is yes. The State cannot authorize one group of patients to cultivate while excluding another group making them subject to arrest and prosecution. Anyone ever heard of Planned Parenthood? Great example!

As you can see we are very well prepared to move ahead with this lawsuit in an attempt to protect the cultivation rights of patients in Arizona as well as those in other states currently crafting their dispensary program around or after Arizona's lead. We need everyone's support, I need your support.

Please, stop and think what you stand to lose if you lose your cultivation authorization, your grow rights stripped in favor of a government regulated medical marijuana monopoly. Ask yourself, where will you draw your line in the sand?

My proverbial "line" starts when medicine parts from morality, when patients are forced to go back to a black market, forced to use a monopoly dispensary system with no oversight for costs to patients. Simple supply and demand theory can dictate will what occur here. It is important we learn from our past or be condemned to live it over again and again. Patients should have a choice in where their medication comes from, who produces it and how it is dispensed. No organization, corporation or company should have control over a medication supply for corporate gains.

Please donate what you can to help me remove the 25 Mile Rule from the Arizona Medical Marijuana Act. Every dollar you donate goes towards the fight to keep patient cultivation rights and caregiver cultivation rights for patients everywhere!"

 

[Madjag]

Warning

Warning

Here's a link to an excellent article by Arizona attorney Richard Keyt on his superb website (it's for sale, too) for anyone considering being invovled in an Arizona dispensary:

Warning to Everybody Considering Becoming Involved with an Arizona Medical Marijuana Dispensary

http://www.keytlaw.com/arizonamedicalmarijuanalaw/2012/05/warning/

 

[Madjag]

Gustin Reichbach is Like Any MMJ Patient ... Almost

Gustin Reichbach is Like Any MMJ Patient ... Almost

My friend J.M. Smith has a weekly column in the Tucson Weekly magazine that primarily focuses on weed issues. Here's a unique story he covered recently:


http://www.tucsonweekly.com/TheRange/archives/2012/05/17/gustin-reichbach-is-like-any-mmj-patient-almost

"New Yorker Gustin Reichbach went through hell when his doctor diagnosed his Stage III pancreatic cancer three years ago.

Aggressive chemotherapy left him battered almost as badly as the cancer itself. He couldn't eat. He couldn't sleep. He was in pain and nauseous. He lost weight. He tried various prescription drugs, but they left him with an even broader array of ailments - constipation, more appetite loss, dangerous glucose levels. Nothing worked as well as marijuana, so he drew the curtains on his well-appointed home and smoked. He was in the same shoes as any patient in a state that doesn't have MMJ on the books. Almost."

 

[Madjag]

Get Ready for Dispensaries.....and

Get Ready for Dispensaries.....and

http://www.tokeofthetown.com/2012/07/marijuana_dispensary_operators_working_as_federal.php

Marijuana Dispensary Operators Working As Federal Informants

Excerpt:

"But the bit of chilling news within the Serrano story is this: "Serrano admitted that he asked a dispensary operator, who worked as a confidential informant for the FBI [emphasis added] to give him money in exchange for information about the city's plans to regulate dispensaries," the Times tells us.

"Dispensary operators are working as confidential informants," said San Diego activist Mara Felsen. "These are not isolated occurrences.

"This is how this game is played," Felsen said. "Without informants, this whole system falls apart. Ignore at your own peril."

Rumors have already been rife of certain unscrupulous dispensaries turning on other dispensaries by acting as confidential informants -- in order to eliminate the competition. Now the specter of collectives potentially informing on their own customers has become another unfortunate effect of America's schizophrenic legal attitude towards marijuana's medicinal effects."

 

[Hash Zeppelin]

oh the pigs love this. these rats are worse than the pigs. May Karma pay them a visit.

 

[still pluggin]

How hard can it be to find out who the snitch is?

How many dispensaries are in that mans district?

 

[Madjag]

Just cultivate....

 

[waveguide]

being naturally inclined to suspicion after being covertly harassed by the freemasons, with all due respect to the free market, i'd expect any market with any social import (maybe not eg. crochet) to be dominated by masons. i know all aspecs of the music and entertainment industries are.

it's not like they're going to let it happen and not be in their pocket (they like to call it that).

 

[Madjag]

Dispensary Permits: Awarded, then Authorized by Approval

Dispensary Permits: Awarded, then Authorized by Approval

I just got of the phone with the AZ Dept of Health. I spoke with the Medical Marijuana folks and asked a few questions because I got an email update on Will Humble's Director Blog concerning the awarding of dispensary permits. Here's the update:

http://directorsblog.health.azdhs.gov/

The good news is that if you need to renew your Green Card in the next few months, you'll still most likely get another year with the "Authorized to Cultivate" on your card.

Why?

Because the elimination of that right on your next renewal is based upon a dispensary within 25 miles that is up and running, that is, "Approved", not just awarded a dispensary permit.

To be approved the dispensary must first be built-out to specs and then inspected by the State. This will take some months after the certificate is awarded, thus buying time for folks who need a renewal and want that right to cultivate, too. During the next year perhaps, if the Universe moves that way, the 25 Mile Rule will be overturned.

Om Shiva Shankara Hari Hari Ganga!!

​

 

[Madjag]

More waiting for dispensaries to open....

More waiting for dispensaries to open....

The Arizona Attorney General, Tom Horne, just issued an Opinion and a media release about the Arizona Medical Marijuana Act.

An excerpt concerning dispensaries, and why they would be prudent to wait before doing the work and build out on their dispensaries:

"Accordingly, I have advised the Department of Health Services that the law does not prevent them from proceeding with the planned lottery on Tuesday, August 7, and the issuance of registration certificates. The receipt of a registration certificate does not give a certificate holder permission to open or operate a dispensary. Certificate holders must subsequently apply for approval to operate after having completed a number of additional requirements. Dispensary certificate holders are advised that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court, which I expect will be resolved in an accelerated manner."


http://www.azag.gov/press_releases/aug/2012/120806_marijuana_opinion.html

Temporary, good news for those MM cardholders who are authorized to cultivate. If you have renewal dates in Sept - Dec 2012 you will probably be safe to wait until your renewal month to do so. Initially many of us thought that we would have to hurry to renew and get another 12 months of cultivation authorization.

The awards today are only the "go ahead" for dispensaries to start building in anticipation of total approval once they have been inspected by the state and have met all requirements. This new delay means that many dispensary permit awardees will wait even longer to begin their next moves.

 

[billycw]

Can you renew your card before your renewal date? Would be nice to get at least a couple extra months if your date is a couple out.

 

[Madjag]

The date you renew is the date it expires next year. Your right to cultivate extends for another year along with the green card. My date is the end of September so I plan to wait until the week before (have all my info verified of course with the Weed Doc and company i use) so that next year, if there is no cultivation allowed within 25 miles of the nearest dispensary (in a straight line: "The 25 Mile Rule"), I at least am safe through to September harvest.