Linda Horan Lawsuit Appeal New Hampshire
Alstead, NH resident Linda Horan speaking to reporters in November. Photo: Screengrab via WMUR-TV/Youtube

The New Hampshire Attorney General’s Office filed an appeal in late December seeking the state Supreme Court’s opinion on whether patients are allowed to get their medical marijuana outside of the New Hampshire, according to documents recently obtained by InDepthNH.

The appeal follows a Merrimack County Superior judge’s November 2015 order to issue a patient ID card to Alstead resident Linda Horan, who filed a lawsuit in order to receive it.

[Read more: Judge Orders State of NH to Issue Medical Marijuana Card to Dying Cancer Patient]

Horan filed a lawsuit in November to obtain medical marijuana in Maine to treat pain associated with terminal lung cancer that had spread to her brain. Horan was seeking to get her cannabis from dispensaries in Maine because although New Hampshire’s medical marijuana program was signed into law in 2013, there have been delays in opening dispensaries which have hindered patient access.

There are no dispensaries currently open in the state, and the most recent estimates have indicated that none are expected to open until later this year. Meanwhile, Maine has authorized medical marijuana use for several years. First signed into law in 1999, Maine’s medical marijuana program was expanded by voters in 2009.

The state responded to the lawsuit by arguing that patients needed to wait until dispensaries opened in New Hampshire before receiving their ID cards.

“The law that we have put in place— as approved by the legislature— requires ID cards to contain the ‘registry identification number corresponding with the alternative treatment center (dispensary) the qualifying patient designated,’ which prevents the issuance of these cards until the ATCs are open,” Democrat Gov. Maggie Hassan said in a statement in November.

“New Hampshire should not have to abandon its protocol and its plan because Maine is a step ahead,” Assistant Attorney General Francis Fredericks said in court on November 12, and he reportedly also argued that New Hampshire’s dispensaries should be opening by March 2016.

However, Judge Richard McNamara ruled in favor of Horan on November 24.

The New Hampshire Legislature recognized that it is in the public interest to allow those who could benefit from therapeutic cannabis to receive it in 2013 when it enacted RSA chapter 126-X, which is captioned ‘Use of Cannabis for therapeutic Purposes.’ The Court believes the Legislature intended to to relieve the the suffering of cancer patients such as the Petitioner when it enacted RSA chapter 126-X and that the Legislature’s intent can be effectuated by processing the Petitioner’s application a registry identification card, as the statute requires, now that DHHS [Department of Health and Human Services] has designated ATCs [Alternative Treatment Center] in accordance with RSA 126-X:4,I(g).

[RELATED: Vermont Police No Longer Training K9s to Detect Marijuana]

“Accordingly, in the unique circumstances of this case, the court grants the Petition for a preliminary injunction and orders the state of New Hampshire, by its Commissioner of DHHS, to process the Petitioner’s application for a registry identification card,” McNamara concluded.

Horan received her patient card shortly after the ruling, and she passed away on February 1, 2016.

The attorney general’s appeal was filed on December 22, amid ID cards being issued to Horan and about 100 other patients, but the appeal was not made public until published on February 14 by InDepthNH. (The notice of appeal can be seen here.)

“The AG’s decision to appeal this ruling is infuriating,” Matt Simon, the New England political director and legislative analyst for the Marijuana Policy Project, told Truth In Media. “In the middle of an opioid addiction crisis, you might think New Hampshire’s top law enforcement officials would have better things to do than continue to stand between seriously ill patients and cannabis.”

Fredericks stated that the appeal is moving forward in spite of the fact that Horan has passed away. “We want clarification on the important points of law where New Hampshire residents can obtain cannabis,” Fredericks said.

Fredericks also said that Attorney General Joseph Foster did not direct DHHS to issue a card to Horan or other patients in the state following the ruling. “They (DHHS) asked whether they could issue them. The attorney general said they could. We didn’t tell them to do it,” Fredericks said.

While McNamara noted in his order that “nowhere does the statute say that a qualifying patient can only obtain cannabis from a New Hampshire ATC,” he did not make a ruling on where New Hampshire’s marijuana patients may or may not purchase cannabis.

RSA 126-X does not expressly prohibit patients from procuring cannabis from other states where cannabis is also legal.

Paul Twomey, Horan’s attorney, filed a request on Tuesday that the state Supreme Court dismiss the appeal, arguing that “Horan died leaving no representative to take any steps in the case.”

“They have nobody on the other side of the case,” Twomey said according to InDepthNH. “You can’t have a case without two parties in New Hampshire.”

Twomey also argues that the appeal seeks to answer a question that was not ruled upon; McNamara never made a ruling regarding where New Hampshire patients are allowed to obtain their cannabis. According to Twomey, the attorney general is not able to legally pursue an advisory opinion.

Twomey wrote in his letter to the court:

The Preliminary Injunction issued by the Superior Court did not constitute an order on whether a patient with a therapeutic cannabis card could either ‘obtain’ or ‘possess’ cannabis that was obtained from a source other than the treatment center designated by the patient.

“Nothing in RSA 126:X or any other law of the state of New Hampshire could either authorize or forbid obtaining marijuana in another state. Conduct in another state is governed solely by the laws of that state and any applicable federal law,” Twomey also noted. (Read Twomey’s full letter here.)

In 2014, Ben Swann released a Truth In Media episode exposing the government’s hypocrisy in publicly treating cannabis as a dangerous substance while it actually holds two patents specifically for medical use.

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This article was updated February 17, 2016.