Pubdate: Thu, 09 Aug 2012
Source: Camp Verde Bugle, The (AZ)
Copyright: 2012 Western News&Info, Inc.
Contact: 
http://campverdebugleonline.com/Formlayout.asp?formcall=userform&form=1
Website: http://campverdebugleonline.com/
Details: http://www.mapinc.org/media/4914
Author: Howard Fischer

GOV'S WAIVER LETS HORNE CHALLENGE MEDICAL MARIJUANA

PHOENIX -- Gov. Jan Brewer has signed a waiver that will allow 
Attorney General Tom Horne to try to close down the marijuana 
dispensaries that her state health department is in the process of licensing.

The move comes in the wake of Horne's formal legal opinion that the 
state cannot legally permit anyone to sell marijuana, even only to 
those who have a doctor's recommendation to use the drug. Horne said 
as long as the drug remains illegal under federal law, the state is 
powerless to authorize anything to the contrary.

But the governor said Thursday she does not intend to block Health 
Director Will Humble from continuing the process of issuing state 
permits. And Humble, who conducted a lottery Tuesday to see who gets 
to serve each of the 126 health districts in the state, said the 
first of those shops could be open by the end of the month.

The issue arises because the Attorney General's Office represents all 
state agencies. That means it would be up to Horne's lawyers to 
defend the Department of Health Services in any legal proceeding 
challenging its actions.

"I gave him a waiver and put kind of a wall between Mr. Horne and 
myself so that he could represent this position and he could still 
represent me with other attorneys on the other side,' Brewer said.

Horne said this arrangement will allow one of his deputies to 
continue to provide legal advice to Humble even as he personally 
pursues a court order declaring the dispensaries preempted by federal law.

But he insisted this won't create a situation where he will be facing 
off in court against one of his deputies.

Horne said he intends to legally intervene in a legal fight between 
Maricopa County and the owner of a clinic that wants to open a 
marijuana dispensary in Sun City. That has been thwarted because the 
board of supervisors, acting under advice of County Attorney Bill 
Montgomery, refused to provide the necessary zoning certification.

The attorney general figures that could become a test case for the 
larger issue of whether government agencies can process requests to 
do something that remains a crime under federal law. By extension, 
that would require a judge to decide if federal law trumps the 
provisions of the 2010 voter-approved Arizona Medical Marijuana Act 
which specifically authorizes people with certain ailments to possess 
the drug and those licensed by the state to sell it to them.

"The health department isn't taking a position,' Horne said, meaning 
that his office won't have someone representing the agency at the 
hearing to defend the legality of the dispensaries even as he works 
to shut them down.

And he said the fact that the health department is going ahead with 
the licensing of the dispensaries does not mean it believes operation 
of the outlets is legal.

"They're proceeding right now because that's their duty,' he said.

Brewer pointed out that she had some concerns about the legality of 
the dispensaries and specifically whether state health workers who 
process the licenses could be charged with violating the federal 
Controlled Substances Act for "facilitating' others to obtain the 
drug. She even had ordered Humble not to process the applications.

"I took it to court and I was ruled against, (with a judge) saying 
that I had to implement the law,' Brewer recalled Thursday. "So we 
moved forward under the direction of the court.'

But the governor said Horne and Montgomery remain free to try to shut 
down the dispensaries anyway.

"If they believe they have a reason to think they can get that 
overturned, they have that right and privilege to do that,' Brewer 
said. "But in the meantime we have and will continue to move forward 
until we hear differently.'

The fact that Horne is joining forces with Montgomery in the Sun City 
case does not mean he shares all of the county attorney's views about 
how far Arizona can go with its medical marijuana law.

Montgomery said he believes all portions of the law are preempted, 
including the ability of the health department to issue cards 
entitling those with a doctor's recommendation to obtain up to 2 1/2 
ounces of marijuana every two weeks. The county attorney said he 
hopes to get a ruling which would allow him to advise police officers 
that they are free to arrest those who possess marijuana even if they 
have a state-issued card.

Horne, in his formal legal opinion, said he does not believe that the 
Controlled Substances Act prevents the state from issuing cards that 
identify people as medical marijuana users who are exempt from arrest 
under state drug laws.

"It is beyond Congress' power to dictate the parameters of state 
criminal conduct,' he wrote.

Horne said courts are not bound by formal opinions of the attorney 
general. "But they do treat them with respect,' he said.
- ---
MAP posted-by: Jay Bergstrom