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Judge refuses review of medical pot ruling

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Duke Rodriguez, left, president of Ultra Health LLC, and his attorney Brian Egolf, who is also New Mexico’s House Speaker, leave a Santa Fe courtroom on Monday after a state judge reaffirmed his previous ruling regarding the issuance of medical cannabis cards to out-of-state patients. Rodriguez is one of three petitioners in the case. (Eddie Moore/Journal)

Copyright © 2019 Albuquerque Journal

SANTA FE – The high-stakes legal poker over New Mexico’s Medical Cannabis Program shows no signs of ending.

A state judge on Monday directed the New Mexico Department of Health – for the second time – to start issuing medical cannabis identification cards to out-of-state residents, but stopped short of sanctioning the director of the state’s medical marijuana program.

However, an agency spokeswoman suggested that the Health Department might still hold off on widely enrolling non-New Mexicans in its medical cannabis program, saying the department plans to move quickly to ask the Court of Appeals to review the case.

“The New Mexico Department of Health stands by its original position that the New Mexico Medical Cannabis Program is an intrastate program that was never designed for nonresidents,” Department of Health spokeswoman Mari Anixter said after Monday’s ruling. “DOH maintains that it is not required by law to enroll non-New Mexico residents as qualified patients in the program.”

District Judge Bryan Biedscheid ruled last month that New Mexico must allow nonresidents to participate in its Medical Cannabis Program, after the definition of a “qualified patient” was changed in a bill signed into law earlier this year by Gov. Michelle Lujan Grisham.

In response to that ruling, the Health Department provided medical cannabis ID cards to only the three individuals involved in the court challenge. The agency told other out-of-state applicants it was asking the judge to reconsider his ruling and would not be issuing more cards for the time being.

The judge clarified Monday that his ruling should be implemented by the Department of Health for all out-of-state applicants who meet the Medical Cannabis Program’s requirements.

He also denied requests by attorneys for the Department of Health and the Governor’s Office to reconsider his original ruling or hold off on enforcing it.

“I think the law is clear,” Biedscheid said during Monday’s hearing. “I look to the language of that statute first and foremost to determine legislative intent.”

But the judge declined to hold state Medical Cannabis Program Director Kenny Vigil in contempt of court, as sought by petitioners in the case, saying Vigil had taken at least some steps to comply with his initial ruling.

The legal dispute has political overtones, as Lujan Grisham’s office – in a rare procedural move – moved to intervene in the case.

Meanwhile, the three out-of-state individuals who challenged the state’s interpretation of the new law are represented by Santa Fe attorney Brian Egolf, who is also speaker of the state House of Representatives.

During Monday’s hearing, Egolf said the Department of Health’s response to the judge’s initial ruling was creating an “absurd situation.”

He also compared the agency’s response to cases in which several county clerks around New Mexico refused to issue marriage licenses to same-sex couples. The state Supreme Court eventually deemed same-sex marriage legal in 2013.

In court filings, state attorneys have argued that the statute change was not aimed at allowing out-of-state residents to participate in New Mexico’s medical marijuana program, while also saying that such a shift would encourage the transport of cannabis across state lines, which is illegal under both federal and state laws.

They also argued in their recent court filing that it should be up to the state – not the courts – to decide how new laws are implemented, and that the change in question in this year’s bill was a simple drafting error.

Tom Bird, a contract attorney representing the Medical Cannabis Program director, said Monday that opening the program to nonresidents would exceed the court’s authority under the legal action sought by those challenging the state.

He suggested that other non-New Mexicans seeking to obtain a medical marijuana ID card should have to file court challenges of their own, or join the pending case.

If it’s ultimately upheld, the judge’s ruling could cause enrollment in the Medical Cannabis Program to double, according to state attorneys.

Already, enrollment in New Mexico’s medical marijuana program – there were 77,141 people enrolled as of August – has skyrocketed in recent years as additional dispensaries have been opened around the state and more qualifying conditions have been added.

Duke Rodriguez, the president and CEO of Ultra Health LLC, a prominent medical cannabis producer, said the judge’s ruling could prompt DOH to have to revisit its recently adopted plant count limit of 1,750 mature plants per producer.

Rodriguez, who is also one of the three individuals involved in the court challenge, said after Monday’s hearing the case could also lead to changes in other states’ medical cannabis programs.

“This is a very big deal,” he told the Journal.

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