Pubdate: Fri, 28 Sep 2012
Source: Arizona Daily Star (Tucson, AZ)
Copyright: 2012 Arizona Daily Star
Author: Howard Fischer


PHOENIX - The American Civil Liberties Union is asking a judge to 
rebuff efforts by Attorney General Tom Horne to block state licensing 
of medical marijuana dispensaries.

In legal papers filed Thursday, attorneys for the group want Maricopa 
County Superior Court Judge Michael Gordon to rule Arizona is 
constitutionally entitled to determine what it does and does not want 
to make a crime.

They acknowledged the federal Controlled Substances Act makes 
possession, sale and transportation of marijuana a felony. But they 
told Gordon none of that criminalizes the activities of state and 
local employees in processing the paperwork for everything from 
licenses to zoning permits, which Horne and Maricopa County Attorney 
Bill Montgomery contend is illegal.

Ezekiel Edwards, the lead ACLU attorney in the case, also argues that 
Arizona has a 10th Amendment right under the U.S. Constitution to 
make its own drug laws - or, in this case, allow some people to 
possess marijuana - despite Congress' making it a federal crime.

Alessandra Soler, state director of the ACLU, said her organization 
believes the bid by the two prosecutors to halt implementation of the 
state law has nothing to do with their concerns about conflicts with 
federal statutes.

"We think that Horne and Montgomery are doing this because they're 
trying to advance their own personal, political agenda," she said.

Horne, in turn, took his own shot.

"I think that the founders of the American Civil Liberties Union, 
which was founded to fight political suppression ... would turn over 
in their graves if they knew what the ACLU is doing now is protecting 
pot smoking," he said.

The 2010 voter-approved law allows those with a doctor's 
recommendation to get a state-issued card allowing them to obtain up 
to 2 1/2 ounces of marijuana every two weeks. There are currently 
more than 32,000 cardholders in Arizona.

Until now, users have been able to grow their own drugs or trade with 
others. But the law envisions 126 dispensaries throughout the state 
authorized to grow and sell to cardholders.

While the Department of Health Services has awarded about 100 permits 
- - some areas have no applicants - it has yet to conduct a final 
inspection of any site, a necessary precursor to opening its doors.

Horne and Montgomery want to stop that from happening. And they are 
doing it through a lawsuit filed by White Mountain Health Center over 
its bid to open a dispensary in the unincorporated community of Sun City.

County officials, on Montgomery's advice, refused to provide the 
necessary documentation to show they have the required zoning. 
Jeffrey Kaufman, the clinic's attorney, wants Gordon to rule the 
county cannot refuse to perform its role in implementing the Arizona 
Medical Marijuana Act.

Horne and Montgomery, in effect, countersued, telling Gordon that 
judges are legally powerless to authorize anyone to sell marijuana as 
long as it remains illegal under federal law.

Montgomery's view is even more sweeping: He contends it is illegal 
for the health department to even issue cards to users.

In the legal briefs, Edwards said the U.S. Constitution gives each 
state the right to decide if it wants to make possession and sale of 
marijuana a crime. In this case, he said, allowing some people to 
sell and have the drug is just a variation of decriminalization, 
albeit on a more limited scale.

Horne said, though, that the Arizona law does more than just say 
Arizona won't prosecute some people.

"The state has a right to decriminalize marijuana if it chooses," he said.

"But what it cannot do ... is authorize people to violate federal 
law," Horne continued. "And that's exactly what we're seeing."

Edwards conceded that federal law is enforceable in Arizona. And no 
change in state law can stop federal prosecutors from arresting 
anyone for possession or sale of marijuana under the Controlled Substances Act.

But in this case, he said, nothing in the federal law requires any 
individual to violate federal law. He said anyone concerned about 
federal prosecution is free to decide not to become a medical 
marijuana user or vendor.

And Edwards said that while public employees do have duties under the 
state law, that does not mean they are violating federal law.

"Compliance with a ministerial duty" by issuing a building permit 
does not put them in violation of federal marijuana laws, he wrote.

A hearing before Gordon is set for Oct. 19.
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MAP posted-by: Jay Bergstrom