Arizona medical marijuana users lawyered up late last year to contest the state's fees for certification. Those efforts burnt out in mid-May as a Maricopa County Superior Court Judge decided there was nothing she could do about the situation.
The lawsuit arose when a caregiver claimed that the medical marijuana program under the state's Department of Health Services collected more money that it needed to operate and the $150 annual fee for patients and the $200 fee for caregivers were unnecessarily burdensome.
Judge Jo Lynn Gentry, who heard the case, has been relatively friendly to marijuana in the past: she's the same judge that rebuked efforts to quash Prop 205 for failing to meet ballot guidelines.
While she hasn't lost her ability to see through the smoke—she agreed the program collects more money than necessary to operate—she ruled that there were no procedures within her power to force the state to lower fees.
It seems the fears of recreational marijuana supporters who voted against Prop 205 have some merit, based on state's hoarding of cash.
The program currently has a reserve of $31 million, according to documents obtained by Capitol Media Services. The Arizona Medical Marijuana Act of 2010 allows the program to hold on to funds that roll over from previous years. Since June, the state program has collected more than $19.9 million in fees, yet expenses come out to only $7.8 million.
The problem, as Gentry describes it, is that the 2010 law only stipulates the program must collect sufficient fees, but not minimal.
Unfortunately, lowering state fees is not within the purview of judges, according to Gentry.
The plaintiff's attorney, Sean Berberian, said he plans on appealing the decision and the fees represent "unnecessary and unlawful barriers" for access to medicine.
Arizona has some of the highest fees of states that have legalized marijuana for medicinal use. Oregon in the highest with a $200 fee for patients, but most states seem to be less than $100.
Some states, like Maine, don't charge anything at all.
Berberian attributes some of the refusal to lower fees to the attitude against marijuana held by then-Gov. Jan Brewer and continued by Gov. Doug Ducey. Though representatives from Ducey's office deny it, Berberian thinks the governor wants to keep fees high to limit access to what he sees as a harmful drug.
At this point, it seems the clearest way forward would be for the courts to declare the fees illegally burdensome—something the lawsuit has apparently failed to do so far. Gentry said she couldn't legally decide that the fees were too high.
The setting of fees falls squarely beneath the responsibility of the state's administrative branch, which spells bad news for the lawsuit since the state's anti-marijuana administration doesn't have to heed patients' claims of high expenses.
The state does offer a reduced fee of $75 for patients who qualify for the state's SNAP program, for which 11 percent of the state's patients are eligible, according the latest DHS report.
