The January 4, 2012 dismissal (without prejudice to refile) by the Honorable Susan Bolton in the State of Arizona v. Burke et al. lawsuit illustrates the first-year law student lesson that there must exist a case or controversy, which the State of Arizona had the burden to show existed, in order to qualify the State as a party with an interest entitled to some relief. Since Dennis Burke, United States Attorney in Arizona, didn’t cause the U.S. Marshall’s Service to arrest any State employee, or directly promise to arrest the first State employee who processed a cannabis dispensary application, there was no “space” in which Judge Bolton could rule on the constitutionality of anything – the Arizona Medical Marijuana Act, the federal Controlled Substances Act of 1970, or anything else. The federal courts don’t issue “advisory opinions” to inquirers.
The State DHS presumedly will move on with the implementation of its medical marijuana program. The legislature has no authority to overturn the AMMA. Landlords of commercial property, I suggest, ought to read my article in Vol. 46(2) of the Real Property, Estate and Trust Law Journal (current issue, Fall 2011), on Landlord Tenant relations pertinent to leases to medical marijuana enterprises. (That article also is available at www.ssrn.com, searching under my name as author.) The State’s lawsuit established nothing and changed nothing; hence the title’s reference to Macbeth’s speech in Scene 5 of that tragedy. The sale of marijuana is still a federal crime. Landlords need to watch their backs in this environment – where the federal authorities may still assert their authority under federal law, and have indicated an inclination to do so in Arizona.