Arizona, State of et al v. United States of America et al

Filing 48

REPLY to Response to Motion re 30 MOTION to Dismiss for Lack of Jurisdiction on behalf of all named non-government defendants filed by Arizona Association of Dispensary Professionals Incorporated, Arizona Medical Marijuana Association, Jane Christensen, Nicholas Flores, Holistic Health Management Incorporated, Joshua Levine, Paula Pennypacker, Paula Pollock, Serenity Arizona Incorporated, Jeff Silva. (Edwards, Ezekiel)

Ezekiel R. Edwards (admitted pro hac vice)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor; New York, NY 10004
[phone]
[e-mail]
Daniel J. Pochoda (SBA No. 021979)
ACLU FOUNDATION OF ARIZONA
77 E. Columbus St. Ste. 205; Phoenix, AZ 85012
[phone]
[e-mail]
Lisa T. Hauser (SBA No. 006985)
Cameron C. Artigue (SBA No. 011376)
GAMMAGE & BURNHAM
Two North Central, 15th Fl.; Phoenix, AZ 85004
[phone]
[e-mail]
Counsel for Defendant Arizona Medical
Marijuana Association
Thomas W. Dean (SBA No. 015700)
Post Office Box J; Flagstaff, AZ 86002
[phone]
[e-mail]
Counsel for Defendant Arizona Association of
Dispensary Professionals, Inc.

Ken Frakes (SBA No. 021776)
Rose Law Group, PC
6613 N. Scottsdale Rd., Ste. 200
Scottsdale, AZ 85250
[phone]
[e-mail]
Counsel for Defendants
Joshua Levine, Paula
Pennypacker, Nicholas
Flores, Jane Christensen,
Paula Pollack, Serenity
Arizona, Inc.; Holistic Health
Management, Inc.; and Jeff
Silva

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
STATE OF ARIZONA; JANICE K. BREWER;
WILL HUMBLE; ROBERT C. HALLIDAY,
Plaintiffs,
v.
UNITED STATES; U.S. DEP’T OF JUSTICE;
ERIC H. HOLDER; DENNIS K. BURKE; ARIZ.
ASS’N OF DISPENSARY PROFESSIONALS,
INC.; JOSHUA LEVINE; PAULA
PENNYPACKER; NICHOLAS FLORES; JANE
CHRISTENSEN; PAULA POLLOCK; SERENITY
ARIZONA, INC.; HOLISTIC HEALTH MGMT,
INC.; JEFF SILVA; ARIZ. MEDICAL
MARIJUANA ASS’N; DOES I-XX,
Defendants.

No. CV-11-01072-PHX-SRB
Hon. Susan R. Bolton
DEFENDANTS’ REPLY IN
SUPPORT OF THEIR
MOTION TO DISMISS FOR
LACK OF JURISDICTION
AND FAILURE TO STATE A
CLAIM, WITH
MEMORANDUM OF POINTS
AND AUTHORITIES
Oral Argument Requested

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................................ ii
INTRODUCTION AND SUMMARY OF ARGUMENT.............................................. 1
ARGUMENT ..................................................................................................................... 2
I. Arizona Fails To Rebut the Charge That Its Lawsuit Is An
Impermissible Request For An Advisory Opinion, Nor Has It
Demonstrated The Suit Is Ripe ............................................................................. 2
A. Contrary To Arizona’s Misconception, An Article III Controversy
Is Not Created Whenever State And Federal Law Differ In Substance ............. 2
B. Plaintiffs Are Still Not Adverse To Any Other Party In This Suit..................... 4
C. Plaintiffs Ignore Controlling Case Law And Instead Offer A Conclusory
Denial In Response To Defendants’ Argument That The State
Cannot Use Federal Court Either To Validate Or Invalidate State Law ............ 5
D. Plaintiffs Cannot Point To A Concrete Threat Of Prosecution For
Implementation Of The AMMA, And Therefore This Suit Remains Unripe .... 6
II. Arizona Offers Only Conclusory Statements Without Supporting
Authority In Support Of Preemption, And Its New Theories Of How
AMMA Implementation Might Violate Federal Law Are Incorrect ................ 8
A. Arizona’s Conclusory Statements Do Not Demonstrate That The
AMMA Requires State Officials To Violate Federal Law................................. 8
B. When Performing Their Duties Under The AMMA, State Officials
Do Not Violate the Additional Federal Laws Plaintiffs Cite.............................. 9
CONCLUSION ................................................................................................................ 11

i

TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner, 387 U. S. 136 (1967),
abrogated by Califano v. Sanders, 430 U.S. 99 (1977)................................................... 7
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)................................................................ 3
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ....................................................... 2
Doe v. Bolton, 410 U.S. 179 (1973) ................................................................................ 7, 8
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983) ....................... 5
Greenwood v. F.A.A., 28 F.3d 971 (9th Cir.1994) .............................................................. 8
Haywood v. Drown, 129 S. Ct. 2108 (2009) ....................................................................... 3
Lake Carriers’ Ass’n. v. MacMullan, 406 U.S. 498 (1972)............................................ 7, 8
Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D. Or. 2002) ................................................. 3, 4
Poe v. Ullman, 367 U.S. 497 (1961) ................................................................................... 4
Printz v. United States, 521 U.S. 898 (1997) ...................................................................... 3
Republican Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002)............................ 5
U.S. v. Ursery, 518 U.S. 267 (1996) ................................................................................... 9
Constitution
U.S. Const. art. III ........................................................................................... 1, 2, 3, 4, 5, 7

Statutes
18 U.S.C. § 1956 ............................................................................................................... 10
18 U.S.C. § 1957 ............................................................................................................... 10
18 U.S.C. § 1961 ............................................................................................................... 10
18 U.S.C. § 1962 ........................................................................................................... 9, 10
18 U.S.C. § 1963 ........................................................................................................... 9, 10
ii

18 U.S.C. § 1964 ............................................................................................................... 10
18 U.S.C. § 1983 ................................................................................................................. 3
18 U.S.C. § 981 ................................................................................................................... 9
21 U.S.C. § 843 ................................................................................................................. 11
21 U.S.C. § 844 ................................................................................................................... 9
21 U.S.C. § 881 ................................................................................................................... 9
A.R.S. § 36-2801 ............................................................................................................... 11
Other Authorities
4 Papers of John Marshall 95 (C. Cullen ed.1984) ............................................................. 2
McGuinn, Money Laundering (2006) 43 Am. Crim. L. Rev. 739 (McGuinn)................. 10
Memo. of Deputy Att’y Gen. James M. Cole (June 29, 2011), available at
http://www.aclu.org/files/drugpolicy/
june_2011_guidance_regarding_medical_mariju.pdf ..................................................... 6
Rules
Fed. R. Civ. P. 12 ................................................................................................................ 2

iii

INTRODUCTION AND SUMMARY OF ARGUMENT
More telling than what Arizona’s brief says is what it does not say. In response to
Defendants’ ripeness argument, Arizona noisily protests that its officials face a “real and
present danger” of federal prosecution. But this response, even if creditable, leaves the
rest of Defendants’ jurisdictional and substantive arguments unanswered. Arizona still
refuses to take sides in this lawsuit, fails to explain how its claim is anything but a request
for an advisory opinion on the validity or invalidity of state law, continues its attempt to
use what is, at most, a political controversy as a stand-in for an Article III controversy,
and relies on events in another state to hypothesize that a concrete threat of federal
prosecution of state officials exists in Arizona – despite contrary evidence.
Even were this Court to have jurisdiction, Arizona fails to respond in any but the
most conclusory manner to Defendants’ arguments that it has failed to state a cognizable
claim. Instead, Arizona continues to ask for either of two legally impossible declarations:
that the AMMA provides safe harbor from federal prosecution or that federal law
preempts the AMMA. The former is unattainable, as well as unnecessary, given that
state officials can enforce the AMMA harmoniously with federal law. The latter is
incorrect, as federal law does not preempt the AMMA under either conflict or obstacle
preemption. All Arizona says in support of preemption is that because certain conduct
permitted under state law is illegal under federal law, the state law must be preempted.
The complex and delicate balance between state and federal authority, as well as states’
sovereign ability to enact their own criminal codes, cannot be so blithely dismissed. But

1

beyond its conclusory statement, Arizona makes no further argument on this score,
leaving Defendants’ substantive analysis unchallenged.
Arizona’s silence in the face of Defendants’ Article III and Fed. R. Civ. P.
12(b)(6) arguments speaks loudly both to the absence of a genuine and concrete
controversy between Plaintiffs and Defendants, as well as to the implausibility of its legal
claims. For these reasons, this Court should dismiss this case.
ARGUMENT
I. Arizona Fails To Rebut the Charge That Its Lawsuit Is An Impermissible
Request For An Advisory Opinion, Nor Has It Demonstrated The Suit Is
Ripe.
A. Contrary To Arizona’s Misconception, An Article III Controversy
Is Not Created Whenever State And Federal Law Differ In Substance.
Arizona bases its defense of federal jurisdiction on an incorrect premise: that “a
controversy arises when federal and state laws are in disharmony and expose the citizenry
to serious criminal sanction.” (Pls.’ Resp. 2, hereinafter “Resp.”). Arizona’s conception
of a justiciable controversy differs sharply from the actual Article III definition. Under
Arizona’s watered-down interpretation, a “controversy” would arise whenever one party
raised a constitutional claim involving another party. This would dilute the independent
constitutional requirement of a case or controversy to mere abstract “arguments.” As
Chief Justice Marshall once explained, “[i]f the judicial power extended to every question
under the constitution it would involve almost every subject proper for legislative
discussion and decision.” 4 Papers of John Marshall 95 (C. Cullen ed.1984) (quoted in
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)).

2

Moreover, it is a well-settled principle of our constitutional framework that state
and federal laws need not mirror each other. (Defs.’ Br. in Supp. of Its Mot. to Dismiss
17, hereinafter “Mot.”). Legal acts under state law may “expose the citizenry,” Resp. 2,
to criminal sanction under federal law. Thus, “[m]uch as the federal government may
prefer that [states] keep medical marijuana illegal, it cannot force [them] to do so.”
Conant v. Walters, 309 F.3d 629, 645 (9th Cir. 2002) (Kozinski, J., concurring) (footnote
omitted). Arizona claims Defendants “recognize” its “conflict” by acknowledging that
federal law forbids what the AMMA allows. Resp. 2 n.1. But recognition that laws
differ is not recognition of an Article III controversy. Simply put, “conflicting” state and
federal laws do not give rise to a conflict under Article III. Thus, Arizona’s
decriminalization of what Congress criminalizes does not make federal court adjudication
appropriate.
Plaintiffs cite Haywood v. Drown, 129 S. Ct. 2108 (2009), a suit brought under 18
U.S.C. § 1983 for damages, for the simple proposition that state citizens are bound by
both state and federal laws. Resp. 2. But obligation to two sets of laws does not require
such laws to be in concordance, see Printz v. United States, 521 U.S. 898 (1997), or that
whenever difference exists, an Article III controversy emerges. Plaintiffs also point to
Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D. Or. 2002), to suggest that a federal-state law
conflict that “negatively impacts a state’s interest” creates Article III standing. Resp. 1415. But Oregon did not announce, nor does there exist, a “negative impact” test for
Article III controversies. Rather, Oregon held that the CSA does not prohibit medical
practitioners from prescribing and dispensing controlled substances in compliance with
3

state law. Id. at 1092. In that case, in responding to the U.S. Attorney General’s clear
directive to prosecute physicians complying with Oregon’s assisted suicide statute, the
State, doctors, and patients sought to enjoin their adversary from enforcing its directive.
Unlike here, the conflict in Oregon was not merely between laws, but between adverse
parties. Plaintiffs were not a neutral party seeking an advisory opinion but antagonists
asserting interests diametrically opposed to Defendants and seeking legally permissible
relief in the face of Defendants’ specific intent to prosecute. Therefore, Plaintiff’s
reliance on Oregon for the proposition that “mere conflict” between state and federal law
meets Article III’s high threshold is misplaced.
B. Plaintiffs Are Still Not Adverse To Any Other Party In This Suit.
Given another opportunity to stake out a position in its own lawsuit, Arizona has
chosen – without explanation – to remain indifferent to the merits outcome of this case.
Rather than rebut Defendants’ argument that Arizona must pick a side to create a
justiciable controversy, Arizona appears content to play sideline spectator.

Yet a

necessary element of an Article III controversy is opposing parties with adverse legal
interests. “[T[he adjudicatory process is most securely founded when it is exercised
under the impact of a lively conflict between antagonistic demands[.]” Poe v. Ullman,
367 U.S. 497, 503 (1961)(emphasis added). Arizona has not assumed an antagonistic
stance towards any of the Defendants, but rather relies on policy disagreements amongst
Defendants. Arizona’s posture “disclose[s] a want of a truly adversary contest, of a
collision of actively asserted and differing claims,” Id. at 505, making this case exactly
the kind that courts “refus[e] to entertain.” Id. Without a “lively conflict” between
4

Arizona and any named defendants, this Court should do the same.
C. Plaintiffs Ignore Controlling Case Law And Instead Offer A
Conclusory Denial In Response To Defendants’ Argument That The
State Cannot Use Federal Court Either To Validate Or Invalidate State
Law.
In response to Defendants’ argument that state officials cannot use federal courts
as vehicles to uphold or strike down their own laws, Arizona simply states that it seeks to
do neither. Resp. 2, n.2. However, Arizona has asked that “[t]he Court declare the
respective rights and duties of the Plaintiffs and the Defendants regarding the validity,
enforceability, and implementation of the AMMA.” Compl., Prayer for Relief ¶ A.
Furthermore, Arizona has pitted DOES I-X against DOES XI-XX on the basis that the
former “assert that the AMMA is a valid and enforceable law” and the latter “assert that
the AMMA is … not a valid and enforceable law . . . .” Compl. ¶¶ 55-56 (emphases
added). Indeed, Arizona appears to have defined its hypothetical parties in this manner in
an attempt to manufacture an Article III controversy over the validity of the AMMA.
Conspicuously, Plaintiffs completely avoid Defendants’ discussion of two
controlling cases, Republican Party of Guam v. Gutierrez, 277 F.3d 1086 (9th Cir. 2002),
and Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 21 (1983). As the
Supreme Court stated in Franchise Tax Bd., “a State’s suit for a declaration of the
validity of state law is sufficiently removed from the spirit of necessity and careful
limitation of district court jurisdiction ... that …such a suit is not within the original
jurisdiction of the United States district courts.” Id. at 21-22. Guam and Franchise Tax
Bd. explicitly rejected the type of challenge that Arizona raises here. Arizona, however,
ignores these cases.
5

Moreover, either of the flawed declarations Arizona seeks (preemption or “safe
harbor”) would bear directly on the validity of state law. No matter how Arizona
attempts to characterize its suit, it cannot obscure its objective.
Plaintiffs similarly do not attempt to repair another defect in their lawsuit: state
officials lack standing to challenge a state statute’s constitutionality when they are not
adversely affected and their interest in the litigation is official, rather than personal. Mot.
8-9. Here, Plaintiffs have only official – not personal – interest in the validity or
invalidity of state law. Plaintiffs’ personal interest is in establishing that the state law’s
responsibilities do not violate federal law. But this is not the relief Plaintiffs seek.
Therefore, Plaintiffs do not have standing.
D. Plaintiffs Cannot Point To A Concrete Threat Of Prosecution For
Implementation Of The AMMA, And Therefore This Suit Remains
Unripe.
In lieu of responding to each of Defendants’ jurisdictional arguments, Arizona
focuses almost exclusively on ripeness. Resp. 5-11, 13-15, 17-21. But as evidence that
Arizona officials face a real threat of prosecution, Plaintiffs point first not to events in
Arizona, but Washington.1 Resp. 6-9. To establish ripeness, Arizona must do more than
substitute another state’s laws and circumstances for its own. Indeed, the U.S. Attorney’s
statements in Arizona demonstrate that the federal government will not prosecute state
officials complying with the AMMA.
1

Arizona also discusses letters sent by U.S. Attorneys to the governors of numerous other
medical marijuana states. Compl. ¶¶ 116-162. While those letters name myriad specific
targets for prosecution, not one implicates state officials. Similarly, the most recent DOJ
memo says nothing about the prosecution of state officials. See Memo. of Deputy Att’y
Gen. James M. Cole (June 29, 2011), available at
http://www.aclu.org/files/drugpolicy/june_2011_guidance_regarding_medical_mariju.pdf
6

As Defendants have already detailed, Mot. 10-11, the U.S. Attorney in Arizona,
Dennis Burke, made clear that his omission of state employees from the categories of
persons subject to federal prosecution was purposeful. Compl. ¶ 25 & Ex. B.
Nonetheless, Arizona stubbornly suggests that the exclusion of state officials should be
read, in fact, as their inclusion. 2 Furthermore, while Arizona acknowledges Burke’s clear
statement that he will not prosecute anyone “implementing” or “in compliance with” state
law, it says state officials cannot have “piece [sic] of mind” because of Burke’s refusal to
proclaim a “safe haven.” Resp. 19, n.7. Putting aside that “peace of mind” is not a
measure of Article III ripeness, Burke’s reminder that state law cannot immunize federal
law violations does not alter or confuse his declaration that he will not prosecute state
employees.
Plaintiffs analogize their position to that of drug manufacturers facing federal
regulations for all prescription drugs in Abbott Laboratories v. Gardner, 387 U. S. 136,
154 (1967), abrogated by Califano v. Sanders, 430 U.S. 99, 105 (1977). Resp. 16. But in
Abbott, “the regulation [wa]s directed at [petitioners] in particular . . . [and] if they
fail[ed] to observe the Commissioner’s rule they [we]re quite clearly exposed to the
imposition of strong sanctions.” Id. Here federal law could not be invoked against
Plaintiffs, nor has the DOJ stated an intention to prosecute Plaintiffs. Plaintiffs also cite
Lake Carriers’ Ass’n. v. MacMullan, 406 U.S. 498 (1972), and Doe v. Bolton, 410 U.S.
179 (1973), for the proposition that declaratory judgment need not be preceded by
specific threat of or actual prosecution. Resp. 20-21. But in Lake Carriers’ Ass’n.,
2

Arizona also ignores Burke’s explanation that this omission was intentional and meant
to signal that state officials will not be prosecuted. Mot. 10-11.
7

where plaintiffs operating via federal law challenged burdensome state law requirements,
state officials had indicated that noncompliance would result in future prosecution and
conceded that a “‘concrete confrontation’” had arisen. Lake Carriers’ Ass’n., 406 U.S. at
507-508. Bolton involved the challenge by doctor-plaintiffs to an abortion statute where
doctors had been prosecuted under the predecessor statute. Bolton, 410 U.S. at 188-189.
The threat of prosecution of state officials implementing the AMMA remains, at
best, speculative. Moreover, even if it concrete, it would not cure Arizona’s lawsuit of its
other jurisdictional ailments.
II. Arizona Offers Only Conclusory Statements Without Supporting
Authority In Support Of Preemption, And Its New Theories Of How AMMA
Implementation Might Violate Federal Law Are Incorrect.
A. Arizona’s Conclusory Statements Do Not Demonstrate That The
AMMA Requires State Officials To Violate Federal Law.
Defendants established that none of the AMMA’s requirements conflict with the
federal laws cited by Arizona. Mot. 12-15. Thus, it is possible for state officials to
comply with both. In response, Arizona ignores Defendants’ provision-by-provision
analysis, again simply recites federal law and the AMMA, and concludes, without
supporting authorities, that AMMA enforcement “may,” “arguably,” or “could
potentially” violate federal law. Resp. at 18, n.6. But a viable preemption claim requires
more than listing laws’ provisions and concluding sans analysis or supporting authority
that compliance with both is impossible. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir.1994).

8

B. When Performing Their Duties Under The AMMA, State Officials
Do Not Violate the Additional Federal Laws Plaintiffs Cite.
Arizona has added to its laundry list of federal statutes that it hypothesizes might
criminalize state officials’ AMMA obligations. Resp. 5. None of the cited statutes
actually does this. Under 21 U.S.C. § 844(a), the federal government can seek civil
injunctions and fines, criminal prosecution, and prison sentences against those who
knowingly and intentionally possess a controlled substance. But the AMMA does not
require state officials to possess medical marijuana. Pursuant to 21 U.S.C. § 881(a), the
federal government can seek forfeiture of all property used or intended for use in
connection with drug trafficking. However, the AMMA does not require state officials to
use any type of property to possess, manufacture, use, or distribute marijuana. As for the
seizure of AMMA funds, at most the federal government could require the state to
relinquish such monies. But this would not subject state officials to prosecution. As the
Supreme Court stressed in U.S. v. Ursery, 518 U.S. 267, 288-289 (1996)(holding that 21
U.S.C. § 881 and 18 U.S.C. § 981 are neither “punishment” nor criminal for purposes of
the Double Jeopardy Clause), Congress intended 21 U.S.C. § 881 proceedings to be civil,
not criminal. As such, 21 U.S.C. § 881 actions are in rem proceedings against the
property, not against any in personam defendant. Id. Simply because the federal
government might initiate in rem proceedings against a state fund does not criminalize
the creation and administration of the fund pursuant to state law.
Arizona alleges that AMMA implementation would expose state employees to
criminal and civil liability under Racketeer Influenced and Corrupt Organizations
(“RICO”) laws. Specifically, it raises 18 U.S.C. §§ 1962 (“Prohibited acts”), 1963(a)
9

(“Forfeiture”), and 1964 (“Civil remedies”). 18 U.S.C. § 1962 outlines the criminal
liabilities of RICO based on “racketeering activity” as defined in 18 U.S.C. § 1961(1).
The potentially pertinent substantive offenses are 18 U.S.C. § 1961(1)(B) and (D). Under
18 U.S.C. § 1961(1)(B)’s list of Title 18 provisions, potentially relevant are §§ 1956
(laundering of monetary instruments) and 1957 (engaging in monetary transactions in
property derived from specified unlawful activity). As Defendants have addressed, Mot.
14-15, 18 U.S.C. § 1956 requires knowledge of the money’s unlawful origin and intent to
promote or conceal the activity. Similarly, 18 U.S.C. § 1957 requires knowing
engagement in a transaction involving criminally derived property. McGuinn, Money
Laundering (2006) 43 Am. Crim. L. Rev. 739, 743 (McGuinn). Under the AMMA, state
officials will neither know the funds’ original source nor intend to promote or conceal an
unlawful activity. 18 U.S.C. § 1961(1)(D) in part prohibits “the felonious manufacture,
importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled
substance.” But the AMMA requires none of these acts. 18 U.S.C. § 1963(a) permits the
federal government to initiate forfeiture proceedings against “whoever violates any
provision of Section 1962,” while 18 U.S.C. § 1964 provides a civil cause of action for
such violations. But again, the AMMA does not require state officials to violate 18
U.S.C. § 1962. Therefore, there would be no occasion for the government to seek
forfeiture under 18 U.S.C. § 1963(a) against state officials (and, again, at most forfeiture
would require the relinquishment of AMMA funds) or for a private suit under 18 U.S.C.
§ 1964.

10

Arizona reiterates that state officials’ establishment and maintenance of AMMA’s
web-based verification system pursuant to A.R.S. § 36-2801.16 “could implicate[] [them]
in using a communication facility” in violation of 21 U.S.C. § 843(b). Resp. 18-19, n.6.
But requiring state officials to set up and maintain an on-line database for use by
nonprofit medical marijuana dispensary agents to verify and record information does not
require state officials to use the database to manufacture, distribute, dispense, or possess a
controlled substance.
Lastly, Arizona concedes that the federal crimes of conspiracy and aiding and
abetting require specific intent, but asserts that the absence of mens rea is relevant only as
a potential defense to criminal charges. Mot. 15. But why would the federal government
prosecute state officials whose actions did not meet all elements of a federal crime?
Lacking the requisite mens rea would be, first and foremost, a shield from prosecution,
regardless that it could also be a trial defense. Arizona’s suggestion that state officials
have a credible fear of bad faith prosecution is unpersuasive.
CONCLUSION
Arizona’s response fails to rehabilitate the fundamental jurisdictional flaws in its
complaint for declaratory judgment. Consequently, this Court should dismiss this action
for lack of jurisdiction or in the alternative for failure to state a claim upon which relief
can be granted.
Dated: August 26, 2011

Respectfully Submitted,
/s/ Ezekiel Edwards
Ezekiel R. Edwards (admitted pro hac vice)
[e-mail]
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
11

125 Broad Street, 18th Floor
New York, NY 10004
[phone]
Daniel J. Pochoda (SBA No. 021979)
[e-mail]
ACLU FOUNDATION OF ARIZONA
77 E. Columbus Street, Suite 205
Phoenix, AZ 85012
[phone]
Lisa T. Hauser (SBA No. 006985)
[e-mail]
Cameron C. Artigue (SBA No. 011376)
[e-mail]
GAMMAGE & BURNHAM
Two North Central, 15th Floor
Phoenix, AZ 85004
[phone]
Counsel for Defendant Arizona Medical Marijuana
Association
/s/ Thomas W. Dean
Thomas W. Dean (SBA No. 015700)
[e-mail]
Post Office Box J
Flagstaff, AZ 86002
[phone]
Counsel for Defendant Arizona Association of
Dispensary Professionals, Inc.
/s/ Ken Frakes
Ken Frakes (SBA No. 021776)
[e-mail]
Rose Law Group, PC
6613 N. Scottsdale Road, Suite 200
Scottsdale, Arizona 85250
[phone]
Counsel for Defendants Joshua Levine, Paula
Pennypacker, Dr. Nicholas Flores, Jane Christensen,
Paula Pollack, Serenity Arizona, Inc.; Holistic Health
Management, Inc.; and Jeff Silva

12

CERTIFICATE OF SERVICE
I hereby certify that on August 26, 2011, I electronically transmitted the attached
document to the Clerk’s Office using the CM/ECF System for filing, and transmittal of a
Notice of Electronic Filing to the following ECF registrants:
Aubrey Joy Corcoran
Office of the Attorney General – Phoenix
Email: [e-mail]
Kevin D Ray
Office of the Attorney General
Education and Health Section - Health Unit
Email: [e-mail]
Lori Simpson Davis
Office of the Attorney General
Email: [e-mail]
Counsel for Plaintiffs: State of Arizona, Janice K. Brewer, William Humble, and
Robert C. Halliday
Thomas P Liddy
Maricopa County Attorneys Office
Civil Services Division
Email: [e-mail]
Counsel for Plaintiffs: Maricopa County and Joy Rich

/s/ Ezekiel Edwards
Ezekiel Edwards (admitted pro hac vice)
[e-mail]
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
[phone]