Bill Hayes
Active Member
https://www.facebook.com/note.php?note_id=389300287751466
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.:
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT THEREOF
ORAL ARGUMENT REQUESTED
Table of Contents
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..4
LEGAL STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... . 7
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).
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 Brewers office stated for the record that they would no longer challenge the states 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 Departments 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 Directors 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
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.
.
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, 32831 (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, 32831 (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 challengebrought before the statute went into effectto 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 32324. 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. Dept 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, 78990 (E.D. Va. 2010). (Emphasis added).
Perhaps most relevant, timely and illustrative is the facial challenge brought against the State of Arizonas 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), affd, 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 States 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.
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. Wisconsins 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 Assn 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 Georgias 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).
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 Patients Fourteenth Amendment Rights to Equal Protection under the laws as opposed to being a wholly infirm statutory provision.
Upon demonstrating a likelihood of success on the merits, a plaintiff must also establish that, absent the preliminary injunction, there is likelihood that the defendants conduct will cause irreparable harm. See: Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 37576 (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 voters approval of Prop 203 which led to the formation of the AMMA. This harm will only be magnified if the law goes into effect.
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
HELP support the removal of the "25 Mile Rule"
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.:
PLAINTIFFS 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
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 Brewers office stated for the record that they would no longer challenge the states 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 Departments 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 Directors 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
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 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, 32831 (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, 32831 (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 challengebrought before the statute went into effectto 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 32324. 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. Dept 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, 78990 (E.D. Va. 2010). (Emphasis added).
Perhaps most relevant, timely and illustrative is the facial challenge brought against the State of Arizonas 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), affd, 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 States 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
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. Wisconsins 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 Assn 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 Georgias 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
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 Patients 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 defendants conduct will cause irreparable harm. See: Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 37576 (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 voters 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
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.
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Tel.
Pro Se
lol I'm just kidding about the last part but for shits and gigs 
