Pubdate: Fri, 19 Oct 2012
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2012 The Arizona Republic
Author: Yvonne Wingett Sanchez


The top lawyers for the state and county, strong opponents of 
Arizona's medical-marijuana law, will argue in court today that 
federal drug laws pre-empt the voter-approved law.

Attorneys arguing on behalf of White Mountain Health Center of Sun 
City, meanwhile, charge that state law does not require anyone to 
violate federal laws by issuing permits for medical-marijuana 
activities since the state has decriminalized those acts. In their 
lawsuit, they also allege that Maricopa County illegally rejected the 
center's registration certificate, which is among the state 
requirements to become a medical-marijuana dispensary applicant.

At stake is the future of medical marijuana in Arizona, one of 17 
states to approve the drug to treat certain medical conditions. If 
government lawyers prevail, they would shut down the legal growing of 
marijuana and ensure that dispensaries do not open - making it 
impossible for patients to legally obtain pot.

Maricopa County Superior Court Judge Michael Gordon will hear 
arguments at 3 p.m.

"What it would not shut down is that people who qualify can have 
cards to show a policeman that their possession was not illegal, but 
they'd have no legal way to obtain marijuana," said Arizona Attorney 
General Tom Horne. He added that the law provides no way for patients 
to legally purchase marijuana from out of state or on the Internet.

Supporters of medical marijuana strongly disagree with the idea that 
the state law requires government workers to engage in activities 
that would expose them to liabilities under the federal Controlled 
Substances Act, which makes possession, sale or use of marijuana a crime.

"The (Arizona Medical Marijuana Act) has decriminalized a subset of 
marijuana laws for a subset of people," said Ezekiel Edwards, 
director of the American Civil Liberties Union's criminal-law reform 
project. "This is a validly passed law from the people of Arizona 
seeking to get a form of medicine for people who really need and want 
to use it."

Each side cites various federal and state court cases to bolster its 
case. Each side also vows to appeal if the judge does not rule its way.

Voters in 2010 passed the measure to allow people with certain 
debilitating medical conditions, including chronic pain, cancer and 
muscle spasms, to use medical marijuana. They must obtain a 
recommendation from a physician and register with the state, which 
issues identification cards to qualified patients and caregivers. 
Caregivers can grow 12 plants for up to five patients. Users are 
limited to 2.5 ounces every two weeks.

More than 32,000 people have permission to use medical marijuana in 
Arizona, and most can also grow their own until the dispensaries open 
- - if they ever do.

Under the law, state health officials can license up to 126 
dispensaries throughout designated areas. The law does not limit how 
much marijuana dispensary operators can grow.

In August, the state Health Department selected 97 dispensary owners 
to have the opportunity to sell marijuana and operate cultivation 
sites to grow if they complete certain steps.

That same day, Maricopa County Attorney Bill Montgomery said he would 
use the Sun City dispensary case as a vehicle to test the federal 
pre-emption argument. That dispensary is located in an unincorporated 
area and requires county-zoning approval before it can seek other 
permits from the state. Montgomery had advised county officials not 
to participate in the medical-marijuana program, saying employees 
could risk prosecution under federal drug laws.

Meanwhile, Horne issued a non-binding legal opinion, saying federal 
drug laws trump the state law when it comes to "cultivating, selling 
and dispensing" pot. Montgomery and Horne have cited recent 
crackdowns by federal prosecutors in other states to bolster their arguments.

But U.S. Attorney for Arizona John Leonardo has told The Arizona 
Republic that while the contradiction between federal and state laws 
has created anxiety, "to focus our efforts on individuals who are in 
compliance with state law and may be using marijuana for medicinal 
purposes, including treating such serious diseases as cancer, would 
not be the likely and most efficient use of our resources."

Paul Bender, an Arizona State University constitutional law 
professor, said it is extraordinarily unusual that the top lawyers 
for the state and county are challenging a voter-approved law, since 
they typically are defending such laws. Bender said he believes 
politics is motivating their challenge, although he acknowledged the 
conflict between federal and state laws.

"The legal question is: If you have a federal statute which could be 
used to pre-empt state law, but the federal government doesn't use 
it, should the state go ahead and follow it's own law?" Bender asked. 
"That's the issue. The most sensible thing to do would be to ... go 
ahead and do what the people of Arizona want to do unless the federal 
government comes in and says stop."

The legal battle has angered medical-marijuana advocates, many who 
believe prosecutors are trying to obstruct the will of voters and 
keep the ill from a form of medicine that they say allows them to 
tolerate pain better than traditional medicine.

So far, state health officials have issued 37 dispensary-registration 
certificates, but none has completed the necessary steps to open. 
Some have said they will wait for the outcome of this case before 
investing more money.
- ---
MAP posted-by: Jay Bergstrom