"Class-action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm." 

 

"NO 25-MILE RULE", CLASS ACTION SUIT

 

 

 

BILLY B. HAYES, JR.; ALLEN HARRISON; DOROTHY LAWSON; LAWRENCE LAWSON, JAY CHARLES COZZA; JAMES SCOT ATMANAVICIUS; DOUGLAS MACBETH; MICHAEL PAHLE; CODY S. POWELL; RACHEL E. POWELL; DAWN S. HAYES; MARK KELLNER (PLAINTIFFS are Pro Se, represented by Billy B. Hayes Jr.)

                       Plaintiffs,

            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 DECLARATORY JUDGEMENT AND INJUNCTIVE RELIEF, AND MEMORANDUM OF LAW IN SUPPORT THEREOF

 

ORAL ARGUMENT REQUESTED

 

 

***IN EDIT TRANSFER**** PLEASE STAND BY********

INTRODUCTORY STATEMENT

 

1)  This is an action for declaratory judgment and injunctive relief challenging A.R.S. 36-2804.02 (A) (3) (f) as unconstitutional under the Federal Equal Protection, 14th Amendment to the United States Constitution, as well as, the Arizona State Constitution is specific Article 14 Section 15.

 

2)  Plaintiffs seek declaratory judgment that A.R.S. 36-2804.02 (A) (3) (f) is in violation of either or both the U.S. Constitution Amendment XIV and/or Arizona State Constitution Article 14 Section 15.

 

3)  Plaintiffs seek preliminary and permanent injunction restraining each of defendants from violating the U.S. Constitution and/or Arizona State Constitution and enforcing laws that are unconstitutional.

 

JURISDICTION

 

4)This Court has jurisdiction pursuant to A.R.S. § 12-123

 

5)This Court has the power to issue declaratory relief pursuant to A.R.S. § 12-1831 and Rule 57, A.R.C.P., and injunctive relief pursuant to A.R.S. § 12-1801, and Rule 65, A.R.C.P.

 

PARTIES

 

6) I, Plaintiff Billy B. Hayes Jr. representing "Plaintiffs", am a resident of the City of El Mirage, in the State of Arizona.  I am a registered medical marijuana patient with the Arizona Department of Health Services (here after AZDHS).

 

7) All Plaintiffs are registered medical marijuana patients with AZDHS.

 

8) All Plaintiffs have had their cultivation rights revoked as a direct result of A.R.S. 36-2804.02 (A) (3) (f).

 

9) Defendant State of Arizona is a sovereign state of the United States.

 

10) 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.

 

11) 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.

 

12) 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

 

13) 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.

 

14) 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.

 

15) 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.  

 

16) ARIZONA MEDICAL MARIJUANA ACT

The AMMA was passed by Arizona voters in November 2010, and became law on December 14, 2010. 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 "non profit medical marijuana dispensaries, " " non profit medical marijuana dispensary agents," "qualifying patients," and "designated caregivers."

 

17) Under the AMMA, the Arizona Department of Health Services ("ADHS") is responsible for implementing and over seeing the Act. The AMMA provides for the  registration and certification by the ADHS of nonprofit medical marijuana dispensaries,nonprofit medical marijuana dispensary agents,qualifying patients,and designated caregivers.

 

18) On April 14, 2011, the ADHS began accepting applications from persons who sought to be registered as qualifying patients and designated caregivers. That registration process continues and as of Feb. 18th 2014, the AZDHS has registered *************

 

19) With the passing of proposition 203, the voters of Arizona established the status quot regarding the medical use of marijuana within the State of Arizona. Voters recognized that those people with certain medical conditions should have access to a known natural source of treatment. Thus Arizona allows registered patients to have access to medical marijuana. It is that "access" to the medicine, which they are allowed to have, that is at the heart of this case. In the words of medical marijuana patients, "safe controlled access to quality medication is an enormous problem." No legitimate patient wants to use "street dope" and no one can say that the electorate intended that patients have to seek their medicine on the streets. Arizona has an established dispensary system within the AMMA and it is that dispensary system that had been halted numerous times during implementation processes leaving patients with nowhere to obtain medical grade marijuana other than that of self cultivation. 

 

20) The State of Arizona, as represented by Tom Horne, Arizona Attorney General, filed a case in which the State argued: "In addition to growing their own marijuana, the only other permissible way for qualifying patients or designated caregivers to obtain marijuana is from a nonprofit medical marijuana dispensary agent at the nonprofit medical marijuana dispensary with which the dispensary agent is affiliated, or from another qualifying patient or designated caregiver. A.R.S. §§ 36-2806.02 & 36-2811(B)(3). No other individual or entity may lawfully possess or transfer marijuana to a qualifying patient or designated caregiver." (see STATE OF ARIZONA and WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; vs. THE 2811 CLUB,LLC, an Arizona limited liability company; THE ARIZONA COMPASSION ASSOCIATION, INC.,a pending Arizona non-profit corporation; MICHAEL R.MILLER, Director of the Arizona Compassion Association, Inc.; YOKI, INC. d/b/a YOKI A MA CLUB, an Arizona non-profit corporation; ARIZONA COMPASSION CLUB, LLC, an Arizona limited liability company;

 

21) In economics and business ethics, a coercive monopoly is a business concern that prohibits competitors from entering the field, with the natural result being that the firm is able to make pricing and production decisions independent of competitive forces. A coercive monopoly is not merely a sole supplier of a particular kind of good or service (a monopoly), but it is a monopoly where there is no opportunity to compete through means such as price competition, technological or product innovation, or marketing; entry into the field is closed. As a coercive monopoly is securely shielded from possibility of competition, it is able to make pricing and production decisions with the assurance that no competition will arise. It is a case of a non-contestable market. A coercive monopoly has very few incentives to keep prices low and may deliberately price gouge consumers by curtailing production. Also, according to economist Murray Rothbard, "a coercive monopolist will tend to perform his service badly and inefficiently."

Advocates of free markets say that the only feasible way that a business could close entry to a field and therefore be able to raise prices free of competitive forces, i.e. be a coercive monopoly, is with the aid of government in restricting competition, creating a "government granted monopoly".

 

22) A well established example of a "government granted monopoly" currently exists, the "State Bar of Arizona" which is the integrated (mandatory) bar association of the U.S. state of Arizona. The Arizona Supreme Court licenses lawyers, while the State Bar administers the regulation of the practice of law. The State Bar, under the direction of the Court, establishes procedures for the discipline of lawyer misconduct and provides education and development programs for the legal profession and the public. The Bar is a government-granted monopoly: Through the Rules of The Supreme Court of Arizona, the privilege to practice law in Arizona is granted solely to "active member[s] of the state bar." While it is not the intent of this motion to raise question as to the constitutional, or potentionally unconstitutional nature of the State Bar of Arizona, it does serve purpose to establish that such monopolies do in fact exist. 

 

Legal Standard

An injunction is warranted where, as here, we the Plaintiffs have established that:  (1) We are likely to succeed on the merits; (2) We are likely to suffer irreparable harm in the absence of declatory judgement and injunctive relief; (3) the balance of equities tips in the Plaintiffs favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129S. Ct. 365, 374 (2008); 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

 

 Plaintiffs are likely to prevail on the Merits  

Plaintiffs were Qualifying Patients with cultivation authorization from the State of Arizona. Pursuant to the AMMA, by processing Dispensary applications and the licensing of the same our ability to renew our cultivation status is affected where as an equally situated registered 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 while at the same time continuing to allow the processing and licensing of Dispensaries would lead to some sort of concrete (as opposed to speculative) damage(s) to the Defendants. 

 

23) In the instant case, the doctrine of sever-ability 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. 

 

24) 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 (1988), and Kucharek v. Hanaway, 902 F.2d 513, 516 (7th Cir. 1990) 

Further, 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 there under, 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).

 

25) 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 “[s]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, 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 by 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.

 

26) A.R.S 36-2804.02 (A)(3)(f) is unconstitutional under Arizona State Constitution Article 14 Section 15

"Section 15. Monopolies and trusts shall never be allowed in this state and no incorporated company, co-partnership or association of persons in this state shall directly or indirectly combine or make any contract, with any incorporated company, foreign or domestic, through their stockholders or the trustees or assigns of such stockholders or with any co-partnership or association of persons, or, in any manner whatever, to fix the prices, limit the production, or regulate the transportation of any product or commodity. The legislature shall enact laws for the enforcement of this section by adequate penalties, and in the case of incorporated companies, if necessary for that purpose, may, as a penalty declare a forfeiture of their franchises."

Upon being granted a "certificate to operate" from AZDHS, a medical marijuana dispensary automatically triggers the 25-Mile Rule limiting production of marijuana to the dispensaries, and criminalizing the cultivation of marijuana by registered patients. According to AZDHS over 90% of the State of Arizona is no longer authorized to cultivate as dispensaries have opened in the appropriated Community Health Analysis Areas (here after, CHAA).

The remaining portion of the state is occupied largly in part by Tribal Lands belonging to the native American Indian tribes of Arizona. state law is not applicable on these lands. "State courts do not have jurisdiction on Indian reservations without Congressional authorization, to allow state infringement undermines tribal sovereignty." Williams v. Lee, 358 U.S. 217 (1959) 

 

27) I Will Suffer Irreparable Harm Absent an Injunction 

 Upon demonstrating a likelihood of success on the merits, a plaintiff must also establish that, absent the injunction, there is llikelihood that the defendant’s conduct will cause irreparable harm. See: Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 375–76 (2008). Injunctive relief is necessary here because the 25-Mile Rule will cause irreparable harm to Plaintiffs in that our resources are limited and private cultivation had been crucial to our medicinal regime. The minute the 25-Mile Rule was triggered, Plaintiffs' ability to medicate per the AMMA was greatly compromised, while the preservation of the status quot will allow Plaintiffs' the opportunity to utilize their cultivation experience and provide the best possible medicinal program for their 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 this unconstitutional section of the law remains in effect.

 

28) 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 our interests as individual Plaintiffs, as well as those individual rights , 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 Plaintiffs.  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. Recently AZDHS has issued a "revised Medical Marijuana Rules and Regulation" package for public comment in which the "as the crow flies" portion of the 25-Mile Rule is revised to now read "when traveling by vehicle" after mass complaints from the registered medical marijuana cardholders of Arizona that represent the status quot in this situation. 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 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. 

 

Were this Court ultimately to conclude that the 25-Mile Rule does not offend the Fourteenth Amendment to the United States Constitution, and Article 14 Section 15 of the Aizona State Constitution, Arizona would then be able to continue enforcement 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 and Article 14 Section 15 of the Arizona State 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.”).

 

  

It is based on the aforementioned causes and points of authority that we, the registered medical marijuana patients of Arizona, respectfully request A.R.S. 36-2804.02(A)(3)(f) be severed from the AMMA while leaving the remainder of A.R.S. 28.1 intact.

 

 

Submitted,