Copyright © 2019 Albuquerque Journal
SANTA FE – Despite concerns raised by the governor and the Department of Health, a state district judge in Santa Fe ruled Thursday that New Mexico must allow non-residents to participate in its medical cannabis program.
In announcing his ruling, Judge Bryan Biedscheid said the language of the amended medical cannabis statute is clear, and it does not allow the Department of Health to withhold identification cards to qualifying patients who live outside of New Mexico.
“This statute, plainly and unambiguously, does away with the requirement of residence of the state of New Mexico,” Biedscheid ruled Thursday after a two-hour hearing. “… Continuing to insist on a showing of residence for eligibility in the program, when that has been taken out by the Legislature, is not appropriate.”
Matthew Garcia, general counsel for the Governor’s Office, said they are disappointed in the outcome and “absolutely” plan to challenge the decision.
Gov. Michelle Lujan Grisham blasted the ruling.
“We remain of the opinion that New Mexico’s medical cannabis program should not be bulldozed by an out-of-state litigant operating with his own financial interests at heart rather than those of the state’s medical program or of the many New Mexicans who depend upon it,” she said in a statement. “(Thursday’s) decision contradicts both the intent of the legislative sponsor and the interpretation of the New Mexico Department of Health, and the state plans to appeal the decision.”
Two people 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 of the state’s medical cannabis program.
One of those plaintiffs is Duke Rodriguez, an Arizona resident and the president and CEO of Ultra Health LLC, a prominent licensed medical marijuana producer.
“We’re totally excited. It’s a tremendous victory for all medical cannabis patients,” Rodriguez said.
In a preliminary Aug. 5 ruling, Biedscheid sided with those filing the court challenge and gave the Health Department a few weeks to prove why the ruling should not be made permanent. The Governor’s Office subsequently intervened in the lawsuit.
The legal dispute centers on a new law signed by Gov. Michelle Lujan Grisham that took effect in June. Among other things, it 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 argued the change was aimed at providing reciprocity to residents of other states with valid medical marijuana cards.
The Lujan Grisham administration contends 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, which is illegal under both federal and state laws.
During Thursday’s hearing, opposing counsel argued over the intent of the amended statute, federal law and patient access to the medical cannabis program.
During the hearing, plaintiffs’ attorney Brian Egolf said there was “no clear evidence” that the Legislature intended to require New Mexico residency for those trying to access the state’s medical cannabis program.
Egolf, who also serves as speaker of the state House of Representatives, also argued that it is not the duty of the Health Department to prevent someone from breaking the law by crossing state lines with medical cannabis obtained in New Mexico. And he said there is nothing to back up the governor’s concern that the change would impede the state’s ability to maintain regulatory control.
“There is no evidence offered to support this theory (that) … anyone who’s driving through the state of New Mexico will be able to pull over to the side of the road to get a registry identification card like it’s a Snickers bar,” he said. “That’s completely wrong.”
Thomas Bird, the Health Department’s attorney, fired back that the Legislature did not intend to strike the residency requirement and, as it stands, without it there is an increased risk of interstate trafficking and federal interference with the medical cannabis program.
“The department is justifiably concerned about that problem because it could threaten the whole program,” he said. “This isn’t ‘chicken little,’ this isn’t ‘the sky is falling,’ these are the legal realities of the anomalous relationship between the program and federal law.”
Egolf dismissed those claims as “boogeyman” arguments, noting that federal law prohibits U.S. government resources being used for the prosecution or dismantling of any medical cannabis program.
Garcia, the governor’s lawyer, argued that there is no reason to “arm wrestle” over the legislative intent. He questioned why the petitioners should be able to interpret the language and definitions of the statute over those who run the program.
“If the petitioners want to access medical cannabis, they should be suing their own state and dealing with legislation in their own state – not continuing to file lawsuit after lawsuit against the state of New Mexico,” Garcia said.
In the end, Judge Biedscheid said he was not trying to restrict the Health Department’s discretion, adding that he found some of its concerns to be valid. But he said the statute is clear.
“I look to the act and I see that the text of the statute, or rule, is the primary essential source of its meaning,” he said.
Rodriguez, one of the plaintiffs who suffers from post-traumatic stress disorder, said he doesn’t think the program will be abused.
“I think people will honor what the judge said, and we just witnessed a major acceptance of cannabis as any other medical care,” said Rodriguez, a former New Mexico human services secretary. “This is how medicine was intended to be accessed.”
New Mexico launched its medical marijuana program in 2007. There were 76,032 active patients as of July.