September 18, 2019

Amid back and forth court filings, DOH not issuing medical cannabis cards to non-residents

The issue of whether non-residents of New Mexico can enroll in the state’s Medical Cannabis Program is still not settled. A flurry of three motions were filed in three days in a civil case over whether non-New Mexico residents are eligible for state medical cannabis cards.

The New Mexico Department of Health filed a motion last week asking a state judge to reconsider his decision to compel the state to issue medical cannabis cards to anyone with a qualifying condition, regardless of where they live. On the same day, Gov. Michelle Lujan Grisham and DOH jointly filed a motion asking a judge to stay, or hold off on, his order for DOH to issue cards to non-residents. Then, on Monday, the three petitioners who originally argued they were due medical cannabis cards even though they live outside New Mexico filed a motion calling for the program’s director to be held in contempt of court. 

The court case started in July when two Texas residents and an Arizona resident who is the CEO and president of a New Mexico medical cannabis asked a judge to force the state to issue the three petitioners medical cards. The petitioners pointed to a change in the state’s definition of what a “qualified patient” is. A bill that made sweeping changes to the law replaced the words “resident of New Mexico” with “person.”

In their request for reconsideration, DOH attorneys argued the wording change, signed by the governor, came down to a drafting error.    

According to DOH, the bill’s sponsor, Sen. Gerald Ortiz y Pino, D-Albuquerque, intended to change the wording in order to create a second type of qualified patient for purposes of reciprocity with states that already have a medical cannabis program. 

“Senator Ortiz y Pino adopted the recommendation and the ‘reciprocal participant’ designation became part of SB 406,” DOH lawyers argued. “The drafting error occurred, however, when the drafters of the bill did not reinstall the residency requirement as part of the definition of “qualified patient,” even after creating a separate ‘reciprocal participants’ category.”

DOH also pointed to a portion of the law that requires medical cannabis caregivers, or those who are qualified to buy medical cannabis on behalf of someone else, to be residents of New Mexico. Further, DOH wrote, the bill’s Financial Impact Report did not account for an influx of patients and therefore it was never the intent to open the program to other residents.

The governor’s office and DOH filed a joint motion on the same day, asking the judge to delay forcing the state to issue cards to non-residents until the state appeals the decision. Lawyers for the state argued the Medical Cannabis Program director would “experience irreparable harm” as the supply of cannabis cannot keep up with the demand of out of state patients. State attorneys also argued that if the case is successfully appealed, DOH would be burdened by rescinding cards issued to out of state residents. 

Lujan Grisham spokesman Tripp Stelnicki said the concern with providing out of state residents with cannabis is that medical cannabis patients who are New Mexico residents would likely not have access to an adequate supply of medicine. 

“New Mexico residents have to come first for us when we talk about the state’s medical cannabis program. And that’s what the concern is,” Stelnicki said. 

Duke Rodriguez, the president and CEO of Ultra Health and one of the petitioners in the case, has long called for a dramatic increase in the number of cannabis plants producers are allowed to grow — or no limit on plant counts at all. 

On Monday Rodriguez and the two Texas residents filed their own motion asking the judge to hold Medical Cannabis Program director Kenny Vigil in contempt of court for not issuing medical cannabis cards to out of state residents. Rodriguez and the two other petitioners received their medical cannabis cards after the judge ordered DOH to do so. But in their latest filing, the group’s lawyer Brian Egolf—who is also the New Mexico Speaker of the House—wrote the Medical Cannabis Program failed to issue a card to another out of state resident. That resident is also from Arizona and works as a marketing officer for Ultra Health. 

According to the motion, when Marissa Novel inquired about her pending patient application, Vigil said her application would be in pending status until “further notice,” due to a pending appeal by the governor’s office and DOH. 

“Due to the pendency of the motions before the District Court, the Court’s ruling is not yet final, and as noted, the Court’s ruling may be stayed pending an appeal,” Vigil wrote. “Accordingly, the Department is not presently issuing enrollment cards to Medical Cannabis Program applicants who are not New Mexico residents.”

In a statement to NM Political Report, Rodriguez called the actions by DOH and the governor’s office “erratic and inconsistent.”

“We respect each person’s right to exercise every remedy available but for a civilized and law respecting society to exist, we must respect the rules of judicial proceedings and valid orders from our courts,” Rodriguez said. “No agency or individual is above the law.”

In a later interview, Rodriguez said it seems like the state is “slowplaying the judge’s order” as they did not ask for an expedited decision from the judge. 

“It doesn’t look like they’re sincerely looking for a decision,” Rodriguez said.