August 14, 2019

NM governor intervenes in court case over medical cannabis cards

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Gov. Michelle Lujan Grisham official.

New Mexico’s governor has officially become a party in a legal battle over whether medical cannabis cards should be issued to out-of-state residents. 

On Wednesday, a state district judge approved Gov. Michelle Lujan Grisham’s request to intervene in the case, which arose after a prominent medical cannabis producer challenged the state on wording in a state statute related to who can become a medical cannabis patient in New Mexico. 

In a motion to add Lujan Grisham as an intervening party, her lawyers argued that the governor’s office is better suited than the state Department of Health to address some issues in the case. 

Related: Cannabis legalization task force aims for compromise

“Public safety considerations such as the interstate transportation of marijuana, which is a violation of federal and state law, and diversion concerns are critical state policy matters,” the court filing read. 

Kenny Vigil, the director of the state’s Medical Cannabis Program, was originally named in court documents but Lujan Grisham’s office argued that Vigil cannot adequately represent the state. 

“[Vigil] lacks authority to address law enforcement concerns, approve regulatory action, or direct healthcare policy for our State,” the court filing read. “Thus, the significant public policy considerations interests at issue cannot be fully addressed by the current parties to this litigation and could be substantially affected or impaired.”

While at a task force convened by the governor to examine cannabis legalization, Department of Health Secretary Kathyleen Kunkel said the issue is too complex for her department alone. 

“It’s such an important matter,” Kunkel said. “What it could impact is significant. It’s beyond the Department of Health.” 

A lawyer with the department told NM Political Report he could not speak for the governor’s office, but did say Lujan Grisham’s office took an interest in the case because it dealt with “interstate issues.”

The court case goes back to an attempt by New Mexico medical cannabis producer Ultra Health to encourage those who qualify as a medical cannabis patient but do not live in New Mexico to apply for a medical card. The company’s reasoning was that a law change removed the term “resident of New Mexico” and replaced it with “person” in the definition of “qualified patient.” 

Almost immediately, the Department of Health dismissed the idea that legislators intended to open the state’s Medical Cannabis Program to residents from other states. Still, Ultra Health moved forward with signing non-residents up for the program. 

The Department of Health did not officially deny any patient applications, but they did place several on hold because the applicants did not have an official New Mexico identification card or address. Duke Rodriguez, the president and CEO of Ultra Health and an Arizona resident, and two Texas residents then asked a state judge to weigh-in. That judge ruled that under the change in law, the Department of Health would not only have to start issuing medical cannabis cards to qualified patients regardless of their address, but that the department had been erroneously requiring New Mexico identification cards from New Mexico residents. 

A spokeswoman for Lujan Grisham said in an email that the governor “has every right to intervene on behalf of the state.” Egolf, who is also the New Mexico Speaker of the House, responded to NM Political Report, but declined to comment on the case. 

Rodriguez said he decided not to challenge the governor’s intervention, in the name of expediency and in hopes that the court will stick with its previous ruling. “Although we believe the Governor has the right to intervene on broader views on public policy, we still contend the plain language of the law is clear, and this plain language will be tough to overrule,” Rodriguez said in a statement to NM Political Report.

Update: Added comment from Lujan Grisham.