Lawyer: Lawmakers cannot make it a crime for medical marijuana users to have drug on college campuses

PHOENIX — State lawmakers have no legal right to make it a crime for medical marijuana users to possess the drug on college campuses, an attorney for a student who was arrested is arguing to the Arizona Supreme Court.

In new legal filings, Thomas Dean is urging the justices to void the conviction of Andre Maestas. He was arrested by Arizona State University campus police in 2014 when they found 0.4 of a gram of the drug in his dorm room.

Dean said the presence of the drug is not in question. In fact, it was Maestas himself who told the officers about the marijuana.

But the attorney said the 2010 initiative which legalized the possession of marijuana for medical use had only a limited number of places where people could not use the drugs. That includes public schools and prisons.

That law does not, however, include university campuses. Yet lawmakers voted anyway in 2012 to extend the scope of the law.

Dean said what’s wrong with that is that the initiative is subject to the constitutional Voter Protection Act. It specifically prohibits lawmakers from repealing or sharply altering anything approved at the ballot.

He acknowledged there is an exception for any change that “furthers the purpose” of the original law. But Dean said a plain reading of what voters approved shows that what legislators approved in 2012 does not fit within that definition.

“The purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties,” Dean quoted from the 2010 law. And he said that expanding the list of places where medical marijuana is not permitted to include college campuses “obviously” does not further the purpose of what voters approved.

Maestas was arrested on a charge of obstructing traffic after ASU police said they found him sitting in an intersection.

When a search of his wallet turned up a medical marijuana card, Maestas admitted to having the drug in his room. That allowed police to obtain a search warrant, turning up less than 0.02 ounces, far below the 2 1/2 ounces medical marijuana users can legally possess.

Maricopa County Superior Court Judge Dean Fink found Maestas guilty of drug possession, fined him $1,000 and placed him on unsupervised probation. When the Court of Appeals overturned that ruling, Attorney General Mark Brnovich sought review by the state’s high court.

Brnovich contends that lawmakers had no choice but to recriminalize marijuana possession on campus for medical users.

He pointed out that marijuana remains a felony under federal law. And Brnovich said federal funding for universities is contingent on compliance with federal law.

But Dean said the flaw in that argument is that federal law does not require making marijuana possession a crime.

“The (federal) act simply requires that the school impose an internal disciplinary action against students or employees that discourages them from engaging in conduct that would violate the federal Controlled Substances Act,” he told the justices. “As long as that procedure is in place, then federal funding is secure.”

And Dean pointed out that the state’s three universities already have such policies in place.

In fact, he said, Maestas was subject to disciplinary action by ASU for violating its code of conduct, though he did not detail what that involved.

“His criminal prosecution was, therefore, completely unnecessary in order for ASU to receive federal funding,” Dean told the justices.

Dean also derided Brnovich’s contention that the question of whether to ban marijuana on campus, even by those who can legally use it, “is a political question delegated to the legislature.”

He acknowledged that courts will avoid interceding in decisions by lawmakers on what are complex matters where there are not clear and easy-to-decide standards. But Dean said that’s not the case here.

“The laws are quite simple, actually,” he said, with the Arizona Medical Marijuana Act containing no authority for lawmakers to criminalize possession by legal users on college campuses.

“The legislature ought not be permitted to ‘end-run’ the Voter Protection Act by simply claiming that their enactment touches on ‘complicated’ matters,” Dean continued. He said allowing such a standard would create a huge loophole through which lawmakers could overturn anything approved by voters.

“After all, matters of the state are all somewhat complicated and usually involve politics,” Dean said.

Ultimately, he told the justices, they are bound to look at what is -- and is not -- in the law that voters crafted and approved.

“If Arizona voters had intended to completely bar registered patients from possession (of) marijuana on public university campuses, they could have easily done so by using specific language to that effect,” Dean said.