Plaintiff and Appellant
ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al
Defendants and Respondents
Case No.: LC2014-000443-001 DT
REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE
The Honorable Judge
1. On November 14, 2014 I, Arlin Troutt, (“the Plaintiff”) filed a RESPONSE TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS. (“the REQUEST”).
2. On that same day the Plaintiff personally addressed and mailed (via United States Postal Service) a copy of the REQUEST to Attorneys Gregory Falls and Matthew Hesketh at 201 East Washington St., Suite 200, Phoenix, Arizona 85004-2327. The Plaintiff’s REQUEST was returned on November 20, 2014 with a hand written notation “Not in Arizona Directory” and with “Return to Sender” stickers across the correct names and address of these same attorneys involved in this complaint (originally filed May 10, 2014) against Will Humble as head of the Arizona Department of Health Services (“ADHS”).
3. Plaintiff removed the stickers and emailed photographs of the correctly addressed but returned envelope and a copy of the REQUEST that was inside the envelope to Mr. Falls and Mr. Hesketh, through Anne Morrone via their office emails on November 20, 2014.
4. Plaintiff received (via United States Postal Service) APPELLEE’S RESPONSE TO “RESONSE [SIC] TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS” signed and dated by Gregory W. Falls on December 8, 2014 (“ADHS RESPONSE”).
5. Mr. Fall’s appears to be confused by the Plaintiff’s continuing effort to get a ruling on misrepresented material facts and a declaration of Plaintiff’s rights and legal status. Plaintiff is requesting this Honorable Court to resolve this protracted dispute regarding the intent of the Arizona Medical Marijuana Act (“AMMA”), the definition of “medical use”, and the meaning of A.R.S. § 36-2804.02(A)(3)(F) in the AMMA.
6. A.R.S. § 12-1832 authorizes any person whose rights, status, or other legal relations are affected by a statute to have determined any question of construction arising under the statute and to obtain a declaration of rights thereunder.
7. The central question presented in this appeal and complaint against the ADHS concerns Plaintiff’s rights, status and other legal relations affected by the AMMA. Plaintiff seeks clarification and a declaration of his rights and legal status from this Honorable Court. The Plaintiff has requested little more than a clarification of the intent of the AMMA and the meaning and legal translation of the 37 English words the ADHS is using to misinterpret A.R.S. § 36-2804.02(A)(3)(f) and penalize the Plaintiff.
8. The intent and legal definition of “medical use” and the meaning of A.R.S. § 36-2804.02(A)(3)(f) are material facts in this matter and the ADHS has misrepresented these material facts to this Honorable Court.
9. The ADHS has used this misinterpretation and misrepresentation of these material facts to promulgate rules and disseminate inaccurate and misleading information to the public with damaging statements such as the following, published in the ADHS AMMA Program Newsletter, (July 2013, pg. 3.): “The law says that patients who live within 25 miles of an operating dispensary cannot grow their own medical marijuana. This was part of what voters passed, and ADHS cannot change it.”
10. On December 4, 2014 Plaintiff received (via United States Postal Service) an Arizona Medical Marijuana Program Newsletter for November 2014. On page 3 of this publication the Arizona Department of Health Services (“ADHS”) stated: “State law prohibits qualifying patients from growing “medical marijuana plants” if they are within 25 miles of a licensed, operating dispensary.” (EXHIBIT A)
11. This (December 8, 2014) ADHS RESPONSE to Plaintiff’s (November 14, 2014) REQUEST continues to blatantly misrepresent material facts in this matter that must be ruled on and rectified before this dispute can be resolved and the damage stopped.
12. The ADHS RESPONSE misleads the Court in stating: “A qualifying patient may request authorization to cultivate a limited number of marijuana plants (twelve of them) “if” a nonprofit medical marijuana dispensary is not operating within twenty-five miles of the qualifying patient’s home. A.R.S. § 36-2804.02(A)(3)(f)”.” (Page 2, lines 12-15), “He (the Plaintiff) requested authorization to cultivate marijuana plants.” (Page 2, line 21), “Troutt refused to withdraw his request for authorization to cultivate.”(Page 3, lines 9-10) “The Department issued Troutt a card without cultivation rights, and denied his request to cultivate.” (Page 3, lines 10-11)
13. ADHS RESPONSE states: “The issue is whether AMMA “permits” Troutt to cultivate. It does not. A.R.S. § 36-2804.02(A)(3)(f) is the only provision in AMMA that allows a qualifying patient to request authorization to cultivate.” (Page 6, lines 27-28 to Page 7, line 1).
14. The ADHS is misrepresenting a material fact in this matter. A.R.S. § 36-2804.02(A)(3)(f) does not allow or require a “request for authorization to cultivate” as the ADHS is alleging to this Honorable Court.
15. The ADHS RESPONSE ironically included the evidence of their misrepresentation to the Court in the actual 37 words that construct A.R.S. § 36-2804.02(A)(3)(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. (Page 6, lines 26-28 to Page 7, lines 1-9)
16. According to A.R.S. § 36-2808 (A.), it is “A REGISTERED QUALIFYING PATIENT’S” PREFERENCE REGARDING WHO MAY CULTIVATE MARIJUANA FOR “THE REGISTERED QUALIFYING PATIENT” class. This designation is an optional nomination, an appointment or a selection based on a critically ill patient’s belief. There is a great difference in a “required request for authorization” and an “optional designation of preference”.
17. A.R.S. § 36-2804.02(A)(3)(f) and A.R.S. § 36-2808 (A.) both make the distinction between THE “REGISTERED” QUALIFYING PATIENT CLASS and THE “REGISTERING” QUALIFYING PATIENT that has an option to “nominate” or “choose” who he or she “will” or “will not” allow to cultivate marijuana for the AMMA Donation and Dispensary Program (“DDP”). “If” the “registering” qualifying patient wishes to cultivate marijuana or “if” he or she wishes to designate a caregiver to cultivate marijuana for the DDP and or “if” a “registering” qualifying patient believes he or she might reside further than 25 miles from a beneficial or “operational” dispensary then A.R.S. § 36-2804.02(A)(3)(f) is only a “Big If” not an “Only If”.
18. According to A.R.S. § 36-2804.05 (A.) the ADHS has the “option” not a “requirement” to DENY A RENEWAL APPLICATION OF A REGISTRY IDENTIFICATION CARD “ONLY IF” THE APPLICANT DOES NOT PROVIDE THE INFORMATION REQUIRED.
19. The Plaintiff provided the required information. ADHS did not have an option, mandate or the authority to deny the Plaintiff’s right to cultivate or alter the Plaintiff’s “renewal” card or penalize the Plaintiff. The ADHS was not authorized to issue an altered identification card without approval or consent from the Plaintiff or his physician.
20. A.R.S. § 36-2804.02(A)(3)(f)only asks for a preference based on the belief of a registering qualifying patient. This “Patient Preference” only pertains to people that “believe” they might live more than 25 miles from a legally operational dispensary. This “Patient Preference” does not even pertain to anyone the ADHS “believes” might live less than 25 miles from a dispensary.
21. The ADHS describes the Plaintiff’s interpretation of A.R.S. § 36-2804.02(A)(3)(f)as “nonsensical” after telling this Court: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f.) to mean exactly what it says: There is a “twenty-five mile rule.” If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana. Any other interpretation, including those advanced by Troutt, would be nonsensical and render the reference to “twenty-file miles” meaningless.” (Page 7, lines 21-25)
22. The ADHS is well aware that they authorize marijuana cultivation for “designated caregivers” that live within 25 miles of a dispensary and qualifying patients are not required to disclose cultivation locations.
23. The ADHS is also well aware that their limited authority to regulate dispensaries does not trump a physician’s recommendation for a beneficial and specific form of naturally cultivated marijuana for a patient’s medical use. The ADHS is not being truthful with this Honorable Court.
24. This question of immunity and protection has been decided in Arizona’s courts and is “Ground Zero” in this long running dispute over immunity, marijuana money, and the definition and meaning of “medical use” in the AMMA.
25. The term “Medical Use” is used 45 times and is clearly defined and decriminalized in the AMMA: A.R.S. § 36-2801 (9.): “MEDICAL USE” MEANS THE CULTIVATION AND USE OF MARIJUANA TO TREAT OR ALLEVIATE A REGISTERED QUALIFYING PATIENT’S MEDICAL CONDITION.
26. The ADHS RESPONSE states: “AMMA is a permissive statutory scheme laid on top of the Criminal Code that decriminalizes certain specific conduct associated with the medical use of marijuana. A.R.S. § 36-2811(B) (qualifying patient not subject to arrest, prosecution or penalty under state criminal laws for “medical use of marijuana pursuant to this chapter”)” (Page 6, lines 6-10)
27. Mr. Humble and Mr. Fall’s defense of these ADHS actions are disingenuous, damaging and require sanctions. The ADHS is only now admitting to this court in their RESPONSE that: “Cultivation is a “use” of medical marijuana. A.R.S. § 36-2801(9)” (Page 6, lines 17-18).
28. However, this is where ADHS blurs the words and the line between a limited authority and responsibility to regulate dispensaries and the Plaintiff’s legal right to cultivate “natural marijuana” for personal and beneficial medical use based on a physician’s recommendation.
29. The ADHS RESPONSE states: “The twenty-five mile rule was intended to be a restriction on the personal cultivation of marijuana under AMMA. It cannot be ignored to allow for the type of “unrestricted natural cultivation of marijuana” that Troutt seeks. Doing so would violate the intent of the electorate and impermissibly rewrite AMMA to create a law that was not intended.” (Page 10, lines 14-18)
30. It is the ADHS that has impermissibly rewrote the AMMA to restrict “natural cultivation of marijuana” with a blatant misinterpretation of the English language to create a damaging rule that was not intended by the electorate or authorized in the AMMA.
31. There is no “natural cultivation restriction” found in the AMMA and there is no authority granted for the ADHS to market artificially cultivated marijuana or synthetic marijuana substitutes in Arizona. The ADHS 25-mile “As the Crow Flies” rule was clearly intended to restrict the personal cultivation of natural marijuana and promote profits from artificial cultivation and synthetic marijuana substitutes. However, this ADHS agenda was neither intended by the electorate nor authorized in the AMMA.
32. A.R.S. § 36-2804.03 (B.)(3.)(c) authorizes a qualifying patient’s physician to make all decisions that “CONTROL THE ACQUISITION OF THE MARIJUANA, THE DOSAGE AND THE FREQUENCY OF THE MEDICAL USE OF MARIJUANA BY THE QUALIFYING PATIENT.
33. According to A.R.S. § 36-2801 (18): a “WRITTEN CERTIFICATION” requires a PHYSICIAN to SPECIFY THE QUALIFYING PATIENT’S DEBILITATING MEDICAL CONDITION ONLY IN THE COURSE OF A PHYSICIAN-PATIENT RELATIONSHIP AFTER THE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT OF THE QUALIFYING PATIENT’S MEDICAL HISTORY.
34. On September 5, 2014 Dr. Elaine M. Burns generated and signed a letter for the court that states: “it is important for Mr. Troutt to use pesticide/mold/bacteria free medication as these would cause a strain on his liver to try and detoxify from his system. Acceptable forms of cannabis that would be effective for Mr. Troutt include not only the dried plant but also juicing of the plant and making a tincture from the root.”(EXHIBIT B)
35. On November 20, 2014 the decision of Arizona Superior Court Judge Ralph E. Hatch was AFFIRMED in Division One of the Arizona Court of Appeals (No. 1 CA-CR 13-0852). This Superior Court ruling regarding this disputed matter of immunity was appealed by the State. Judge Patricia K. Norris delivered the Opinion for the Arizona Court of Appeals, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.
36. According to Judge Norris: the AMMA provides that a “qualified patient” with a “debilitating medical condition” may obtain a registry identification card from the Arizona Department of Health Services (“DHS”) and with it, immunity from State prosecution for marijuana acquisition, possession, cultivation and use within the AMMA’s limits. See A.R.S. §§ 36-2801. http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2014/1%20CA%20CR-13-0852.pdf
37. The ADHS RESPONSE states: “Troutt apparently believes “AMMA does not authorize the [Department] to limit or constrain the manner, source and/or the form of marijuana that the appellant requires for medical use. The very definition of `medical use’ in the AMMA specifically includes cultivation for registered qualifying patients.” Motion, p. 4, ¶13. Who is correct? This is the issue on appeal.” (Page 4, lines 6-10)
38. The ADHS knows Judge Katherine Cooper was correct: HONORABLE KATHERINE COOPER SUPERIOR COURT OF ARIZONA MARICOPA COUNTY (CV 2013014852) MINUTE ENTRY filed 03/21/14: In applying the plain language of the statute to the rules of statutory interpretation, the Court concludes that nothing in the statute limits the form in which patients may use medical marijuana. “The plain and ordinary meaning of the AMMA’s text is reflected in the Merriam-Webster Dictionary definitions of these words: “Usable” is defined as “a convenient or practicable use. http://www.merriam-webster.com/dictionary/usable.”
39. The ADHS RESPONSE states: Troutt contends that he legally may acquire marijuana “from any transaction or source.”(Page 6, lines, 19-20). The Plaintiff would remind the Court that Troutt’s contention came from the AMMA and ADHS: (R9-17-101) Definitions: In addition to the definitions in A.R.S. § 36-2801: “Acquire” means to obtain through any type of transaction and from any source.
STATEMENT OF FACTS
40. Proposition 203 was proposed by an “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”.This initiative measureAmended TITLE 36, ARIZONA REVISED STATUTES, BY ADDING CHAPTER 28.1; AMENDING ARIZONA REVISED STATUTES; RELATING TO THE “MEDICAL USE” OF MARIJUANA; PROVIDING FOR CONDITIONAL REPEAL.
41. According to A.R.S. § 19-125 (D.) There shall be printed on the official ballot a descriptive title containing a summary of the principal provisions of the measure, not to exceed fifty words, which shall be prepared by the secretary of state and approved by the attorney general stating the essential change in the existing law should the measure receive a majority of marks indicating voter preference.
42. According tothe first 20 words in“The DESCRIPTIVE TITLE” of the Proposition 203 Ballot Guide: “THE USE OF MARIJUANA IS ALLOWED FOR PEOPLE WITH DEBILITATING MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN.”
43. Completely separate and secondary to this clearly stated immunity and protection for critically ill patients that engage in the “medical use of marijuana” was a time-sensitive mandate (20 words):“AND ESTABLISH A REGULATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES”.
44. The Secretary of State and Attorney General still had 10 words left to “essentially state”: THE CULTIVATION OF MEDICAL MARIJUANA FOR PERSONAL USE IS RESTRICTED OR CULTIVATION IS NOT INCLUDED IN THE DEFINITION OF MEDICAL USE. However, the remaining 10 words were never used, the intent was clear.
45. According to the Proposition 203 Ballot Guide “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”: A “yes” vote shall have the effect of authorizing the use of marijuanafor people with debilitating medical conditions who obtain a written certification from a physician. A “yes” vote shall also have the effect of establishing a regulatory system governed by the Arizona Department of Health Services for “establishing and licensing medical marijuana dispensaries”.
46. According to the ANALYSIS BY LEGISLATIVE COUNCIL: “Proposition 203 would generally provide that any person who acts in conformity with the requirements of the proposition is not subject to any governmentally imposed sanction relating to the medical use of marijuana.” “In order to register with DHS, a qualifying patient must submit a signed written certification issued by the physician recommending the medical use of marijuana. The certification must be made in the course of a “physician-patient relationship”.
47. According to Section 2. Findings (A.), the intent and purpose for removing the criminal statues and civil penalties for the “natural cultivation” of marijuana for medical use is crystal clear: “The People of the State of Arizona found and declared that: Marijuana’s recorded use as a medicine goes back nearly 5,000 years, and modern medical research has confirmed beneficial uses for marijuana.”
48. According to Section 2 (D.): “Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill patients who have a medical need to use marijuana.”
49. According to Section 2 (E.): Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana for the health and welfare of its citizens.
50. According to the clearest language of the AMMA in Section 2. (G): “Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the “medical use of marijuana”.
51. The ADHS RESPONSE alleges: “nowhere in the General Election Ballot Guide does it say: “If this proposition passes, any qualifying patient may cultivate medical marijuana anywhere, statewide.” (Page 10, lines 10-13)
52. In fact, that is exactly what Section 2 of the AMMA does specifically state. The voters of Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana.
53. The clear intent of the electorate, the Descriptive Title, the Analysis by Legislative Council, the Definitions, the Provisions and the general context of the language in the AMMA and the many court ruling on this same matter support the Plaintiff’s clear right to naturally cultivate marijuana for private and beneficial medical use.
54. The AMMA primarily protects the legal rights of the patient/physician relationship and secondarily and separately provides for the safe and legal regulation of marijuana dispensaries.
55. The AMMA did not intend or authorize an “As The Crow Flies Rule” to restrict natural cultivation or place limitations and constraints on the medical use of marijuana. Nor did the AMMA authorize the ADHS to approve and protect the sale of artificially cultivated marijuana and or contaminated commercial marijuana products.
- Natural cultivation and crime reduction is most certainly and specifically included in this “permissive statutory scheme” that is based on 5,000 years of natural cultivation history, decades of national crime statistics and the traditional recommendations of a physician.
57. A.R.S. § 36-2801 (8.) and (15.)define “MARIJUANA” and “USABLE MARIJUANA” to include all parts of the plant (in any number or amount) whether growing or not and specifically decriminalizes possession of “THE SEEDS, STALKS AND ROOTS OF THE PLANT”.
58. Seeds, stalks and roots (growing or not) are the source of all marijuana cultivation and the key to reducing the crime, violence, pain, suffering and death the electorate intended to end with the decriminalization of this destructive and deadly marijuana prohibition.
59. The AMMA was based on a 5,000-year of natural cultivation that took place long before this underground and unpredictable synthetic marijuana market immerged under artificial light. Naturally cultivated and uncontaminated marijuana is a recommended requirement for the Plaintiff from his physicians.
60. The Plaintiff has cultivated and used medical marijuana for relief since 1965. No one knows more about the specific medical uses that benefit the Plaintiff than the Plaintiff. It was the Plaintiff that authorized and paid the ADHS to issue the Plaintiff’s identification card and the ADHS refused to renew the terms of that card in a safe, legal and timely manner.
61. Seeds, stalks and roots (growing or not) are the source of all marijuana cultivation and the key to reducing the crime, violence, pain, suffering and death the electorate intended to end with the decriminalization of this destructive and deadly marijuana prohibition
62. The 19 Provisions and 18 Definitions in the AMMA prioritize and protect the critically ill patient’s rights. These provisions and definitions secondarily mandate the ADHS responsibility to establish a regulatory system for dispensaries. The ADHS has failed to establish this system in a safe, legal and timely manner.
63. The legality of ADHS interpretations and actions have been hotly contested and ruled on in our courts and ignored by the ADHS. The ADHS still insists on blurring the lines of the legal immunity and protection offered to critically ill patients and their physicians even after the courts have clearly ruled in these matters.
64. The ADHS RESPONSE asks this court “Who is Correct?” Judge Katherine Cooper is correct: HONORABLE KATHERINE COOPER SUPERIOR COURT OF ARIZONA MARICOPA COUNTY (CV 2013014852) MINUTE ENTRY filed 03/21/14: “In applying the plain language of the statute to the rules of statutory interpretation, the Court concludes that nothing in the statute limits the form in which patients may use medical marijuana.” “The plain and ordinary meaning of the AMMA’s text is reflected in the Merriam-Webster Dictionary definitions of these words: “Usable” is defined as “a convenient or practicable use.” http://www.merriam-webster.com/dictionary/usable. “Conclusion: The Court is solely concerned with the interpretation of the AMMA as written. The AMMA does not limit the form in which that medicine can be administered.” “Proponents’ and Voters’ Intent: “Ballot materials demonstrate that proponents and voters did not intend patients to be prosecuted for using medical marijuana in the form that is the most beneficial to them.”
65. The ADHS director Mr. Will Humble has a long andwell-documented history of opposing medical marijuana use. The ADHS has made an unauthorized and damaging grab at controlling medical marijuana cultivation with misrepresentations, misinterpretations and over-regulation of the AMMA. The ADHS has misrepresented material facts in this case.
1. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not require a request for authorization to cultivate marijuana.
2. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not pertain to individuals the ADHS believes live within 25 miles of an operational dispensary.
3. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) only asks a qualifying patient to designate a preference based on that patient’s beliefs.
4. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not require or authorize the ADHS to restrict a qualifying patient’s right to naturally cultivate marijuana for specific and personal medical use.
5. Whereas the Plaintiff requests this Honorable Court to Declare that the ADHS was not required or authorized by the AMMA or A.R.S. § 36-2804.02(A)(3)(f) to deny and or delay the Plaintiff’s application for an identification card renewal.
6. Whereas the Plaintiff requests this Honorable Court to Declare that neither the AMMA nor A.R.S. § 36-2804.02(A)(3)(f) authorized the ADHS to alter and or issue the Plaintiff an identification card without approval or consent from the Plaintiff or his physician.
7. Whereas the Plaintiff requests this Honorable Court to Declare that in the AMMA, the use and definition of “medical use” includes the right to cultivate marijuana.
8. Whereas the Plaintiff requests this Honorable Court to Declare that the ADHS has failed to establish a dispensary regulatory system in a timely and legal manner.
9. Whereas the Plaintiff requests this Honorable Court to Order an Injunction against the ADHS to stop the promulgation of unauthorized rules and the dissemination of inaccurate and damaging information and acts the ADHS has misrepresented to this court as being intended, authorized and required by the AMMA.
10. Whereas the Plaintiff requests this Honorable Court to Declare that Will Humble and his attorneys, Gregory Falls and Matthew Hesketh, have misrepresented material facts in this case.
11. Whereas the Plaintiff requests this Honorable Court to Order Sanctions or other action this Honorable Court deems appropriate against Will Humble, Gregory Falls, Matthew Hesketh for misrepresenting material facts to This Honorable Court.
Respectfully submitted on January 2, 2015