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Utah Medical Marijuana Advocates Push Back in Court

May 22, 2018
In this June 26, 2017, photo, Davis Cromar, center, holds his son Holden, 10, who suffers from epilepsy, while standing with other patients, caregivers and supporters during the Utah Patients Coalition news conference, in Salt Lake City. Medical-marijuana supporters in Utah are pushing back in court against opponents trying to block them from the ballot by citing federal drug law. (Rick Bowmer/AP)

SALT LAKE CITY — Supporters and opponents of medical marijuana in Utah are preparing to square off in court over a proposed ballot initiative, opening a new front for what has been a contentious public battle.

The Utah Patients Coalition, which drove medical marijuana initiatives, filed a challenge Monday seeking to intervene in a lawsuit brought by opponents citing federal drug law.

In court papers, supporters said they had spent significant amounts of time and money to place the ballot before voters in November and should be able to defend it from legal attacks.

“While our opponents want to debate in the courtroom with a single judge deciding the fate of medical cannabis, we look forward to an active debate in the court of public opinion where all Utahns can have a say,” coalition director DJ Schanz said in a statement.


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The State Employees Argument

The case was brought Thursday by Drug Safe Utah. The group asked for an emergency court order blocking the question from reaching the ballot. They allege that the prospect of Utah legalizing marijuana for medicinal purposes would be illegal since the drug remains outlawed at the federal level.

“It requires state employees to essentially violate federal law because they have to cooperate with people who are violating federal laws in selling medical marijuana,” said Blake Ostler, a lawyer representing Drug Safe Utah. “That in and of itself is a crime called aiding and abetting.”

The proposal would let people with certain medical conditions use edible or topical forms of the drug, but they would not be allowed to smoke it.

Thirty other states allow medical marijuana, but the idea has been the subject of fierce debate in Utah as it nears the finish line to go before voters. Republican Gov. Gary Herbert and The Church of Jesus Christ of Latter-day Saints, which counts roughly two-thirds of state residents as members, are among the major names opposing the proposal.

In recent weeks, opponents of the measure have reached out to voters who signed a petition to put it on the ballot, asking them to rescind their signature and block it in its tracks. Preliminary results suggest they have not been successful, but the lieutenant governor’s office has until June 1 to certify the signatures.


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It’s Not on the Ballot Yet

A hearing on the case isn’t expected until the state decides whether the measure has made the ballot, at the request of Ostler’s team.

If they go to court, medical marijuana opponents are likely to face tough odds, said Vanderbilt law professor Robert Mikos, who studies drug law.

“It’s a big stretch to say that a government official is complicit in the crime of private parties when they simply let those parties violate federal law,” he said.

Mikos said the Supreme Court’s ruling last week allowing states to legalize betting on sports confirmed a broader theory that also applies to marijuana.

“The state can’t block the government from enforcing its ban, but at the same time a state has no obligation to criminalize this behavior just because it’s illegal under federal law,” he said.


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