BEFORE THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN THE COUNTY OF MARICOPA
WILL HUMBLE, HEAD OF ARIZONA DEPARTMENT OF HEALTH SERVICES,
Case No. LC 2014-000443
REQUEST FOR DENIAL OF APPELLEE’S MOTION FOR DISPOSITION BY
OPINION AND REQUEST FOR RECONSIDERATION OF COURT’S DECISION TO GRANT ORAL ARGUMENTS TO DEFENDANTS
Assigned to the Honorable Crane McClennen
I, Arlin Troutt, (“the Plaintiff”) hereby submit this Request for Denial of Defendants Motion for Disposition by Opinion and the Plaintiff’s Request for Reconsideration of Court’s (June 3, 2015) Decision to Grant and Order Oral Arguments for Defendants.
This complaint regards a protracted and damaging dispute with the Arizona Department of Health (“ADHS”) over the language and meaning of the Arizona Medical Marijuana Act (“AMMA”) as described to Arizona voters in the 2010 Proposition 203 Ballot Guide (the “Publicity Pamphlet”).
Plaintiff has been requesting a simple clarification of A.R.S. § 36-2804.02(A)(3)(f) for well over a year to resolve and rectify this ADHS misinterpretation and misrepresentation of A.R.S. § 36-2804.02(A)(3)(f) .
The Plaintiff has recently suffered a major health setback that is directly related to the Plaintiff’s “certified critical illness” and this distressing and punitive litigation. Plaintiff has recently lost a great deal of optical vision, weight and physical strength.
On June 11, 2015 Dr. Pedro Martinez (Plaintiff’s Primary Care Physician) demanded Plaintiff take 90 days to rest and recover from a recent hospitalization and damage the Plaintiff suffered. Plaintiff’s doctors are aware and concerned over the stress and damage this protracted litigation with the ADHS has created for the Plaintiff.
This battle to acquire a simple “clarification” of the English Language has stolen Plaintiff’s freedom, health and precious time. Plaintiff finds it frustrating and stressful that Attorney Gregory Falls, this Honorable Court and Administrators at the ADHS must know the language of the AMMA and the Merriam Webster’s dictionary will never allow A.R.S. § 36-2804.02(A)(3)(f) to be more than a “request for information”.
Plaintiff would respectfully remind this Honorable Court of what ADHS stated to Administrative Law Judge Tammy Eigenheer over a year ago in the ADHS (April 30, 2014): THE DEPARTMENT OF HEALTH SERVICE’S RESPONSE TO APPELLANT’S REQUEST FOR CLARIFICATION (Docket No. 2014-MMR-T181-DHS, Case No. 2014C-MMR-0312-DHS): “This appeal involves a simple question: whether the Department erred by denying Appellant’s request for approval to cultivate marijuana.”
The simple question and answer here is: A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as a “request for information” and not a “request for approval”.
ADHS also states: “The Department denied Appellant’s request to cultivate because it was required to do so by statute. Under the Arizona Medical Marijuana Act (“AMMA”), a qualifying patient may request authorization to cultivate “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); see also A.A.C. § R9-17-204(A)(1)(h) (renewal application for patient card may request authorization to cultivate if “qualifying patient believes that the qualifying patient resides at least 25 miles from the nearest operating dispensary”).
ADHS goes on to state: “This statutory language should be given its plain meaning. See Hourani v. Benson Hosp., 211 Ariz. 427, 431, ¶ 7, 122 P.3d 6, 10 (App. 2005) (“If [a] statute is clear and unambiguous, [courts] apply the plain meaning of the statute.”). The Department correctly interpreted the language to mean exactly what it says: if you live within twenty-five miles of a dispensary,you are not authorized to cultivate marijuana. Any other interpretation, including the ones advanced by Appellant, would be nonsensical and render the language meaningless.
These statements from ADHS to Judge Eigenheer cannot be considered interpretations after ADHS arbitrarily and capriciously and illegally changed the words and meaning of the law. ADHS exploited this misrepresentation to formulate and promulgate rules and ADHS continues to misguide this Honorable Court to prevail in this matter.
STATEMENT OF FACTS
Plaintiff was issued a cultivation identification card in 2011 and renewed this card in 2012 and 2013. Plaintiff paid fees, provided required requests for information and properly demanded ADHS to issue Plaintiff’s cultivation identification card on April 29, 2014 and on May 14, 2015.
On May 20, 2015 Plaintiff received a “certified letter” dated May 14, 2015 and delivered by United States Postal Service (“USPS”) from Gregory Ducey and Cory Nelson. (Exhibit A)
This USPS certified letter contained another unauthorized identification card issued by ADHS containing Plaintiff’s name and residential address and also stated “unauthorized to cultivate”.
This USPS certified letter also contained the following misrepresentation of fact and law from Governor Gregory Ducey and Cory Nelson (Interim Director of ADHS): “The Arizona Department of Health Services (Department) Medical Marijuana Card Registry Office has “denied your request to cultivate”.“Pursuant to A.R.S. § 36-2804.02(A)(3)(f), a qualifying patient applying to the Department for a qualifying patient’s registry identification card must submit an application that includes “[a] designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use (Emphasis added.) if a registered nonprofit medical marijuana dispensary is within twenty-five miles of the qualifying patient’s home, neither the qualifying patient nor the qualifying patient’s designated caregiver may be granted authority to cultivate marijuana plants”.” (EXHIBIT A)
The Publicity Pamphlet and AMMA version of A.R.S. § 36-2804.02(A)(3)(f) only contains 37 words that end with a “period” for punctuation. ADHS replaced this “period” with a “comma” and added 18 words to A.R.S. § 36-2804.02(A)(3)(f) that could not have been intended by the electorate because they do not exist in A.R.S. § 36-2804.02(A)(3)(f) or anywhere else in the Publicity Pamphlet or AMMA.
This “comma” and these 18 words that ADHS added to A.R.S. § 36-2804.02(A)(3)(f) “illegally changed” the meaning of this provision from a simple “request for information” to a “restriction” that was “unintended by the electorate, unmentioned in the Publicity Pamphlet and unauthorized” by AMMA. This is the “illegal and factual issue of unique interest” that is of “substantial public importance”.
Plaintiff would remind this Honorable court that the ADHS has stated: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f) to mean exactly what it says: “If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana.”(ADHS Response, December 8, 2014- Page 7, lines 21-25)
The Legislative Council’s Analysis and the Descriptive Title of the Publicity Pamphlet explained the effect of a “yes” and “no” vote for AMMA. The Publicity Pamphlet explains: that a “yes” vote for the AMMA: ALLOWS THE USE OF MARIJUANA FOR PEOPLE WITH DEBILITATION MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN “AND” ESTABLISHES A REGLATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES.
The Legislative Analysis and the Descriptive Title of the Publicity Pamphlet clearly define the extent of immunity granted to a certified patient and clearly separates and defines ADHS responsibility and limited authority to establish and regulate dispensaries.
ADHS continues to damage the Plaintiff and misguide this Honorable Court by alleging: “The Legislative Council interpreted AMMA in the same way as the Department. The Legislative Council’s analysis is evidence of the intent of the electorate and cannot be ignored or disregarded. In light of the Legislative council’s similar reading of the statute, the Department’s interpretation is not plainly erroneous. It is therefore entitled to deference and great weight.” (ADHS Answering Brief -Pg. 13, lines 10-14)
ADHS also misled this Honorable Court by stating: “The twenty-five mile rule (A.R.S. § 36-2804.02(A)(3)(f)) was intended to be a restriction on the personal cultivation of marijuana under AMMA.” (ADHS Response, December 8, 2014- Page 10, lines 14-18)
The “25-miles as the Crow Flies” rule that the ADHS attached to A.R.S. § 36-2804.02(A)(3)(f) is an undeniable example of over-regulation. ADHS illegally changed the language of AMMA to obstruct the implementation of a “voter initiated” and “voter protected” law with a “rule for crows”.
ADHS concedes: “The primary objective in interpreting a voter-enacted law is to effectuate the voters’ intent.” (ADHS Answering Brief – Pg. 6, lines 12-14)
However, ADHS conversion of A.R.S. § 36-2804.02(A)(3)(f) from a simple “request for information” into a “required request for authorization” “does not effectuate the intent of a voter-enacted law.
The intent of AMMA according to the Publicity Pamphlet was to authorize the medical use of marijuana for critically ill patients and reduce the crime and violence associated with marijuana prohibition. Forcing qualified patients into protracted litigation with fraudulent interpretations of the English language to create unauthorized restrictions by ADHS was not the intent of the electorate. Forcing our Superior Court Judges to drag out the Merriam Webster Dictionary over and over to protect medical marijuana patients and their physicians “from the state” was not the intent of the electorate.
ADHS states in their APPELLEE”S MOTION FOR DISPOSITION BY OPINION dated and signed by ADHS attorney Gregory Falls on June 4, 2015: “The Department believes such a disposition would be appropriate because the Court’s decision, for either party, most likely will establish or clarify a “rule of law” and involve a legal or factual issue of unique interest or substantial public importance.” (Pg. 1, lines 17-19)
AMMA established the “rule of law” in this matter and the ADHS misrepresented the “rule of law” to the Plaintiff, public and courts.
The time for Oral Arguments have long past in this protracted battle for clarification of ADHS interpretations of A.R.S. § 36-2804.02(A)(3)(f) . The time for Written Disposition by Opinion has not arrived. There is little doubt that higher courts will review this case.
The Plaintiff does not dispute what the AMMA Publicity Pamphlet explained to voters before they removed the criminal statues for the “cultivation and medical use of marijuana”.
The Plaintiff does not “criticize” the “existing law”. Plaintiff does not claim that the “rule of law” has been “overlooked”. The “unique legal and factual issues” that are so “important” in this case originated with ADHS misrepresentation of the “Rule of AMMA”.
Now the Ducey/Nelson ADHS claims as a “Statement of Fact” to this Honorable Court that: “The Department regulates medical marijuana use in the State of Arizona under AMMA and the Rules.” (ADHS Answering Brief – Pg. 2, lines 13-14)
Only licensed physicians can legally certify and regulate the use of medicines like marijuana. ADHS regulation of “medical use of marijuana” is damaging, unauthorized and illegal.
Plaintiff’s complaints of ADHS obstruction of the AMMA program with over-regulation, excessive fees and threats for reporting contaminated marijuana have been buried under an avalanche of fabrications, denials and a refusal to concede that A.R.S. § 36-2804.02(A)(3)(f) is merely a “request for information”.
ADHS admits: “If [a] statute is clear and unambiguous, [courts] apply the plain meaning of the statute.” (ADHS Answering Brief – Pg. 9, line 22).
Plaintiff has undeniably demonstrated to this Honorable Court that A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as an AMMA “request for information” and not an ADHS “request for authorization”.
ADHS has illegally extended their limited authority to establish and regulate dispensaries to the unauthorized regulation and restriction of qualified patient’s right to engage in the cultivation and or medical use of marijuana.
The “rule of law” is a legal principle that protects citizens and opposes the arbitrary and capricious decisions of individual government officials. This dispute concerns a damaging and disingenuous misrepresentation of the AMMA by the ADHS and not the language of the AMMA.
Arizona voters initiated and approved a law that removed criminal penalties for cultivation of marijuana for medical use. The electorate realized that cultivation is the key to reducing the cost, crime and subsequent violence that creates the greatest risk to medical marijuana patients and threatens the safety, health and welfare of our citizens.
There is a gigantic conflict of interest here. The State of Arizona has a brutal history of violently arresting people, confiscating children, seizing property and sentencing critically ill patients to long prison terms for cultivating and using medical marijuana.
Plaintiff fears there will be no mention of the unethical tactics and misrepresentations ADHS has relied on to prevail in this case. Plaintiff is concerned that 15 minutes of Oral Argument and Disposition of this matter with a Written Opinion could easily be argued as “Res Judicata” down the road.
This long running dispute is well documented and there is nothing left to Orally Argue. It is time to drag out Merriam Webster’s dictionary and rule with the righteous.
Whereas the Plaintiff respectfully requests this Honorable Court to Reconsider and Reverse its Order granting Oral Arguments to the Defendants.
Whereas the Plaintiff respectfully requests this Honorable Court to Deny the Defendant’s request to Dispose of this Matter with a Written Opinion.
Whereas the Plaintiff respectfully requests this Honorable Court to clarify this dispute by ruling that A.R.S. § 36-2804.02(A)(3)(f) is an AMMA request for information and not a request for authorization.
Respectfully Submitted on June 15, 2015
CERTIFICATE OF SERVICE
A Conformed COPY of the forgoing is hand-delivered to the Honorable Crane McClennen (at Mesa Court) on June, 15, 2015
A Conformed Copy of the forgoing is sent via Certified U.S.P.S. Mail on June, 15, 2015 to:
Will Humble, Former Head of Arizona Department of Health Services and Cory Nelson, Interim Director, of the Arizona Department of Health Services via:
Certified Letter and Envelope from Governor Gregory Ducey and Interim Director of Arizona Department of Health Services, Cory Nelson