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Governor’s Office moves to intervene in medical pot lawsuit

Gov. Michelle Lujan Grisham’s office is seeking to intervene in a legal dispute over whether out-of-state residents are eligible to receive New Mexico medical cannabis identification cards. (Richard Vogel/Associated Press)

SANTA FE – In an unusual legal maneuver, Gov. Michelle Lujan Grisham’s office has moved to intervene in a pending lawsuit challenging the New Mexico health department’s stance on issuing medical cannabis cards to out-of-state residents.

The Governor’s Office legal team filed the court motion this week, arguing that the lawsuit raises issues – such as the possible interstate transportation of marijuana – that exceed the scope of Kenny Vigil, the state medical cannabis program’s director.

“He lacks the authority to address law enforcement concerns, approve regulatory action or direct health care policy for our state,” the court motion says. “Thus, the significant public policy considerations … at issue cannot be fully addressed by the current parties to this litigation and could be substantially affected or impaired.”

Three out-of-state residents – two from Texas and one from Arizona – filed an emergency petition with the court last month over the Department of Health’s denial of their applications to be license-carrying patients in New Mexico’s medical cannabis program.

In an initial ruling, state District Judge Bryan Biedscheid sided last week with those filing the court challenge and gave the Health Department until later this month to prove why the ruling should not be made permanent.

One of the plaintiffs, Duke Rodriguez, is an Arizona resident who is president and CEO of Ultra Health LLC, a prominent licensed medical marijuana producer. Rodriguez, who has been diagnosed with post-traumatic stress disorder, is also a former New Mexico human services secretary.

He said Wednesday that the plaintiffs would not oppose the move by the Governor’s Office to intervene in the case – and had agreed to a one-week extension to a court-ordered deadline for the state to respond.

“Although we believe the governor has the right to intervene on broader views on public policy, we still contend the plain language of the law is clear and this plain language will be tough to overrule,” Rodriguez said.

The residence dispute is focused on a new law signed by Lujan Grisham that took effect in June and, among other things, changed the definition of “qualified patient” by removing a requirement that an enrolled member of the medical cannabis program be a New Mexico resident. The Health Department has maintained that change was aimed at providing reciprocity to residents of other states with valid medical marijuana cards.

Health Department officials have argued the change was not intended to allow non-New Mexico residents to obtain medical marijuana cards, arguing that such a shift would encourage the transport of cannabis across state lines, in violation of both federal and state laws.

New Mexico launched its medical marijuana program in 2007, and the number of people enrolled in the program has increased rapidly in recent years.

There were 76,032 active patients as of July, compared with 48,861 in September 2017.

Meanwhile, the move by the Governor’s Office to intervene in the case comes as the Department of Health is weighing a proposed rule change to impose a limit of 1,750 mature plants on licensed medical cannabis producers. An emergency rule allowing 2,500 plants will expire this month.

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