Pubdate: Sat, 25 Aug 2012
Source: Verde Independent (AZ)
Copyright: 2012 Western News & Info, Inc
Author: Howard Fischer


PHOENIX -- The state's top prosecutor asked a judge Thursday to void 
a key provision in Arizona's 2-year-old medical marijuana law.

In legal papers filed in Maricopa County Superior Court, Attorney 
General Tom Horne argued that voters are legally powerless to 
authorize anyone to sell marijuana as long as it remains illegal 
under federal law.

The real goal is to get a ruling declaring the state and federal laws 
in conflict. Horne said that will then allow him to direct the state 
Department of Health Services to halt the current process of 
licensing up to 126 dispensaries to sell the drugs even before the 
first one has opened its doors.

Horne is not seeking to invalidate the more than 31,000 cards which 
the health department has issued to people who have a doctor's 
recommendation to use the drug. He said there is a technical legal 
difference to how Arizona law is worded that he believes allows state 
officials to provide the cards as identification.

But Maricopa County Attorney Bill Montgomery, filing similar 
paperwork Thursday in the same case, does not share that view.

He believes the state-issued cards to medical marijuana users also 
are preempted by the federal Controlled Substances Act. And he is 
seeking a court ruling, whether in this case or another, that wipes 
out the entire 2010 Arizona Medical Marijuana Act.

The legal filings come in a case where the White Mountain Health 
Center filed an application to operate a dispensary and cultivation 
site in Sun City.

Arizona law requires dispensary owners to first show that they have 
the necessary zoning and use permits before they can get a license. 
But the Maricopa County Board of Supervisors, which controls the 
zoning in the unincorporated area, refused to process the request on 
Montgomery's advice.

The dispensary owners filed suit, asking Maricopa County Superior 
Court Judge Michael Gordon to force the county to act.

Montgomery, who is named as a defendant in that case, said in his 
response that he just can't do that. And as proof, he cited the 
ruling earlier this year by the U.S. Supreme Court which struck down 
some key provisions of the state's 2010 law aimed at illegal immigrants.

In that case, Montgomery said, the high court ruled that state laws 
are preempted by federal statutes where they conflict and where a 
state law would be "an obstacle to the accomplishment and execution 
of the full purposes and objectives of Congress.'

In this case, he said, Congress specifically classified marijuana as 
a Schedule 1 drug, for which there is no legitimate medical use.

"Dispensary owners are authorized to grow and distribute unlimited 
quantities of marijuana,' Montgomery argued. "There could be no more 
patent obstacle to the accomplishment of the full purpose of the 
federal law and therefore no more blatant conflict with the 
Controlled Substances Act.'

Horne insisted he is a reluctant warrior in the fight against the 
Medical Marijuana Act.

"I tried to avoid the issue,' he said. "I went for a long time not 
taking a position on this.'

He said his hand was forced after prosecutors in 13 of the state's 15 
counties asked him for a formal legal opinion on whether the state 
law is preempted by federal statutes.

"And when we looked up the cases, this is what the cases said,' Horne said.

"A state may not authorize what the federal government expressly 
prohibits under Article 6 of the United States Constitution which 
provides for federal supremacy in case of conflict,' he explained. 
"So any laws that authorize the growing or sale of marijuana are preempted.'

But Ryan Hurley, an attorney who represents some dispensary owners, 
said Horne is wrong to rely on these two cases.

"The factual pattern is very different' from how Arizona law 
operates, he said. "And they completely ignore other cases out of 
California and Michigan and frankly another case out of superior 
court in Arizona that says the exact contrary.'

Horne and Hurley do agree on one thing: Nothing in federal law 
precludes Arizona from issuing cards to people who have a doctor's 
recommendation to use the drug.

"I feel the cards are OK because they act as a form of 
identification,' Horne said.

He said nothing in federal law requires Arizona -- or, for that 
matter, any state -- to make it a state crime to possess marijuana. 
And Horne said he sees the medical marijuana law as a variant of 
that, with the law decriminalizing marijuana possession for certain people.

In essence, he said, that card becomes something a medical marijuana 
user can present that to an Arizona police officer to show that he or 
she cannot be charged under state marijuana laws.

And Horne said Arizona health officials can issue the cards without 
running afoul of federal law because those cards technically do not 
"authorize' anyone to use a federally prohibited drug.

Montgomery, however, isn't buying that argument that these are simply ID cards.

"That's not how it was pitched to voters,' he said. Montgomery said 
the initiative was pitched as a way for people to legally use 
marijuana in Arizona, regardless of federal law.

But Montgomery said he's not going to be pushing hard on that point, 
at least not immediately, saying he intends to focus his attention on 

Horne acknowledged that Arizona is one of more than a dozen states 
with similar laws. And despite the Controlled Substances Act, there 
has been no wholesale effort by the U.S. Department of Justice to 
shutter the dispensaries.

There have, however, been some legal actions.

Just this past week, for example, the U.S. Attorney's Office in Los 
Angeles went to court to seize three properties housing six marijuana 
stores. In that case, though, federal prosecutors said that the shops 
were not only outside federal law but were not permitted under 
California's medical marijuana law.

Horne said, though, the lack of federal action against dispensaries 
elsewhere is irrelevant to his legal opinion.

"That's not the question with which I was presented,' he said. "The 
question I was presented was a very specific legal question.'

It could turn out that Gordon rules on the case without ever 
addressing the bid by Horne and Montgomery to issue a broad ruling on 
federal preemption.

In his legal filings, Montgomery said what the clinic owners want is 
a court order for him to alter his advice to the supervisors. And he 
said courts are powerless to issue such an order.
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MAP posted-by: Jay Bergstrom