The controversial arrest of individuals involved in a medical marijuana compassion club in Payson may end up setting precedent statewide.
Citing confusing language and possible contradictions in the state’s medical marijuana law, the defendants have asked a judge to dismiss their cases, claiming immunity under the Arizona Medical Marijuana Act (AMMA).
Sheelah J. Golliglee and Stacy J. Palace face charges of selling marijuana after police raided Nature’s Harvest in February.
Meanwhile, Dr. Robert L. Gear, who was certifying patients for medical marijuana cards at the center, has also asked a judge to dismiss charges he forged records.
Navajo County Superior Court Judge Ralph Hatch heard their arguments July 8 and “we hope to have a decision within the next couple weeks,” said Golliglee’s attorney Thomas Dean.
Attorneys for the defendants argue Nature’s Harvest did not violate the voter-approved AMMA and so they should not face prosecution and penalty.
But attorney Jason Twede, with the Navajo County Attorney’s Office, disagrees.
Undercover officers reportedly bought medical marijuana from Golliglee and Palace at Nature’s Harvest.
In addition, Dr. Gear certified another undercover officer for a card even though she didn’t have all of her medical records.
The law says that doctors must review patient’s medical records from the previous year before issuing a medical marijuana card.
The law also stipulates that cardholders can provide medical marijuana to other cardholders so long as they don’t exchange money.
However, with the medical marijuana law only a few years old, interpretations of the law range wildly.
Police have made a handful of arrests for alleged violations of the law, but most have yet to make their way through court. As a result, lawyers continue to bicker over the interpretation of the law.
“This is happening statewide,” Twede said, “(lawyers are filing) motions to dismiss alleging immunity.”
In Navajo County alone, prosecutors are pursuing three medical marijuana cases involving compassion clubs, small-scale operations that opened in many areas before state-sanctioned dispensaries opened.
Whatever Judge Hatch decides, Twede said, an appeal appears certain.
Palace and Golliglee argue they operated within the law when they sold medical marijuana to cardholders, according to court documents. In their dismissal motion, they cite one potentially ambiguous sentence in the lengthy law.
Under the statute, a qualifying patient or caregiver cannot be prosecuted for “offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary” so long as nothing of value is exchanged and the individual does not then have more than 2.5 ounces — the limit under the law.
The defense argues that the above sentence only prohibits the exchange of money when a cardholder provides marijuana to a dispensary — since the phrase “so long as nothing of value is exchanged” comes after the “or.” They argue that the “nothing of value” phrase would have to appear on both sides of the “or” to apply to both cardholders and dispensaries.
“The restriction of the receipt of anything of value applies only to the transfer of medical marijuana from a registered patient to a registered nonprofit medical marijuana dispensary,” wrote Dean and Palace’s attorney Lee Phillips, both of who have Web sites promoting them as experts in medical marijuana law.
Both lawyers admit the statute is poorly written, since it includes a run-on sentence with no punctuation.
“Because of this, it is, perhaps, subject to more than one interpretation,” they write. “The interpretation that most favors the defendant, however, must be the one applied,” they concluded, citing an established legal principle.
They argue the law allows a cardholder to “transfer” marijuana to another cardholder even if the cardholders exchange money.
Twede disagrees in his response to the dismissal motion.
“It is clear that the intent of the statute is to prohibit receipt of something of value for a transfer of marijuana to patient or caregiver and (as) well as to a dispensary.”
Furthermore, Twede argues there would be no point in dispensaries if any cardholder could sell marijuana as well.
The law also bars cardholders from growing their own supply if they live within 25 miles of a licensed dispensary.
Palace and Golliglee’s recent defense is different from earlier claims that Nature’s Harvest only charged cardholders for consultations and not marijuana.
Soon after Nature’s Harvest opened, Golliglee told the Roundup that cardholders meet with her or her staff to talk about what strain of medical marijuana will help them. At that time, she said any payment covers the cost of the consultation, not the actual medical marijuana.
Undercover officers, however, said that after a consultation they bought marijuana directly from Golliglee or Palace.
For his part, Dr. Gear argues the judge should throw out an indictment of forgery and fraud because he too is protected under the AMMA.
In his case, an undercover officer complaining of pain visited Dr. Gear. The undercover officer provided prescriptions showing they had a history of prescribed narcotics, but did not have a year’s worth of medical records as specified by the medical marijuana law, according to court documents.
The state argues Dr. Gear failed to contact the patient’s doctor to request those records and under the law, a doctor must review medical records from other physicians from the past year.
However, Gear’s attorney contends it was the patient’s responsibility to produce such records.
But if a patient does not produce records, the statute does not require a physician to decline certification, wrote Gear’s attorney David Klink.
“All heath care providers know that obtaining prior medical records can be onerous and burdensome,” Klink wrote. “The bottom line is that the statute authorizes the physician to presume that the patient is being truthful absent overt evidence to the contrary.”
Furthermore, because the AMMA is a new law, the rule of lenity applies, he wrote.
Lenity requires the court to interpret any ambiguity in a statute in the defendant’s favor.
“The importance of the rule is paramount because this case involves a new law and matters of statewide importance,” Klink wrote.
Klink further argues that these allegations have tarnished Dr. Gear’s “impeccable” career.
“It is simply unconscionable that the state would criminalize a physician with a 44-year history of outstanding service to his patients and the community for providing a patient certification for medicinal marijuana,” Klink wrote.
So far, Twede said he has offered no plea deals to any of the defendants.
Recently, Golliglee helped open Natural Herbal Remedies, Inc., a licensed dispensary in Holbrook.
According to the Arizona Journal, Golliglee is the dispensary’s supervising agent.