Pubdate: Sat, 26 Jan 2013
Source: Camp Verde Bugle, The (AZ)
Copyright: 2013 Western News&Info, Inc.
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Details: http://www.mapinc.org/media/4914
Author: Howard Fischer

MONTGOMERY PUSHES CHALLENGE TO MARIJUANA LAW

PHOENIX -- Hoping for a speedy conclusion, Maricopa County Attorney 
Bill Montgomery on Friday asked the Arizona Supreme Court to 
immediately take up his challenge to the state's medical marijuana law.

In legal papers filed with the high court, Montgomery told the 
justices that his bid to overturn a lower court ruling upholding the 
law is proceeding at the Court of Appeals at a very slow pace. 
Montgomery filed his formal brief Friday; now the other side gets 
time to respond, with Montgomery then getting a chance to reply to that.

He said quick resolution is needed.

"The issue presented -- whether the Arizona Medical Marijuana Act is 
preempted by the federal Controlled Substances Act -- is an important 
issue of statewide impact,' Montgomery told the justices.

Key to all that is whatever the high court rules will affect not just 
his fight with a proposed Sun City dispensary but ultimately whether 
any of the 126 dispensaries envisioned under the 2010 voter-approved 
law can operate.

Six already have opened their doors -- three in Tucson and one each 
in Glendale, Bisbee and Williams -- and would be forced to shutter if 
the justices agree with Montgomery.

But Montgomery claims the impact would be greater. He contends if the 
Supreme Court accepts his legal arguments it would wipe out the 
entire Arizona Medical Marijuana Act.

That would mean not only no more dispensaries but no more individuals 
given state permission to obtain and ingest the drug. And it would 
immediately invalidate the nearly 36,000 cards already issued to 
authorized medical marijuana users.

Jeffrey Kaufman, attorney for the White Mountain Health Center which 
is at the heart of the dispute, said Friday he has no problem having 
the case expedited.

The 2010 initiative allows those with a doctor's recommendation to 
get a card from the state health department allowing them to obtain 
up to 2 1/2 ounces of marijuana every two weeks. It also envisions 
state-regulated privately run dispensaries to grow and sell the drug 
to cardholders.

This dispute flared when White Mountain, seeking to locate in the 
unincorporated area of Sun City, sought the necessary certification 
from Maricopa County that the site was properly zoned. Montgomery 
instructed county officials not to respond, contending that would 
make them guilty of violating federal laws which still prohibit not 
just the possession and sale of marijuana but doing anything to 
facilitate either. And he argued those federal laws supersede the Arizona law.

But Maricopa County Superior Court Judge Michael Gordon last month 
ruled there is no conflict and ordered the county to provide the 
required zoning information. He said nothing in the state statute 
precludes federal agents from arresting Arizonans who violate federal law.

In seeking to overturn Gordon's ruling, Montgomery told Capitol Media 
Services he is not limiting his arguments to dispensaries.

"You start with the very basic premise that the distribution, 
cultivation and use of marijuana as set forth in Arizona's Medical 
Marijuana Act is in direct violation of federal law,' he said.

"The way the Controlled Substances Act is written means states can't 
authorize prohibited conduct,' he said. Montgomery said for the court 
to rule on whether county officials are facilitating the violation of 
federal law means the justices have to address the entire question of 
federal preemption.

"If a court were to simply say, 'You're not allowed to dispense it 
because that's preempted,' the basis for that preemption would 
necessarily have to apply to all the other elements of the Medical 
Marijuana Act,' he said. "I don't see how a court could say, 'We're 
going to address dispensaries and let everything else stand.'

But Dan Pochoda of the Arizona chapter of the American Civil 
Liberties Union, pointed out that the facts before Gordon -- the case 
on appeal -- deal specifically with the question of whether the 
county would be facilitating the violation of federal laws in 
providing the zoning information. Pochoda said the Supreme Court may 
decide to limit any decision strictly to that issue rather than 
making a sweeping ruling.

If Montgomery wins but the court limits its decision to the 
dispensaries, that creates a different dynamic.

The Arizona law says cardholders have to buy their drugs from the 
licensed dispensaries -- but only if they are located within 25 miles 
of one of the shops.

Right now, with dispensaries in the Tucson and Phoenix areas, that 
covers most of the state's population. But if the court requires 
dispensaries to shut down, then no cardholder would be within 25 
miles of a dispensary and all would be free to grow their own.
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MAP posted-by: Jay Bergstrom