Pubdate: Sat, 20 Aug 2016
Source: Sun, The (Yuma, AZ)
Copyright: 2016 The Sun
Author: Howard Fischer, Capitol Media Services


PHOENIX - A judge has thrown out a bid to keep voters from deciding 
whether to legalize the recreational use of marijuana.

In a ruling Friday, Maricopa County Superior Court Judge Jo Lynn 
Gentry said when state lawmakers altered the election code last year 
they eliminated - perhaps inadvertently - the ability of individual 
citizens to sue to keep initiative measures off the ballot. And she 
said lawmakers failed to restore that right anywhere else.

"Thus, whether wittingly or not, the legislatures eliminated a means 
by which initiative petitions can be challenged," Gentry wrote.

The judge also rejected a legal end-run attempted by Brett Johnson, 
the attorney for foes of legalization, who told Gentry she should use 
the court's more general powers over actions of public officials to 
keep Secretary of State Michele Reagan from putting the measure to voters.

"Where the legislature has specifically acted to divest the court of 
jurisdiction, it would be imprudent to ignore the standing issue," 
Gentry wrote.

Friday's ruling is not the last word.

"Despite today's ruling we still believe this initiative perpetrates 
a fraud on the electorate," said Seth Leibsohn who chairs Arizonans 
for Responsible Drug Policy, the group that is trying to keep the 
measure from getting to voters. "We will be seeking an appeal on the ruling."

Gentry, however, is prepared if the Arizona Supreme Court overturns 
her conclusion that the challengers have no legal right to sue. She 
also ruled that even if they had legal standing to contest the 
validity of the measure, they never provided the legally required 
proof that the initiative is too legally flawed to present to voters.

In a prepared statement, initiative chairman J.P. Holyoak said the 
ruling shows "this was a frivolous and politically motivated lawsuit."

He also noted that plaintiffs in the case include two prosecutors: 
Yavapai County Attorney Sheila Polk and Bill Montgomery from Maricopa 
County. Holyoak said they they don't like the measure "they should 
take their arguments to the voters, not to our overburdened court system."

A 2010 voter initiative allows those with certain medical conditions, 
a doctor's recommendation and state-issued ID card to obtain up to 2 
1/2 ounces of marijuana every two weeks from one of approximately 90 
state-authorized dispensaries.

This measure, sponsored by many of the same interests, would permit 
any adult to have up to one ounce of the drug or six plants without 
fear of prosecution under state law. It also sets up a new state 
agency to regulate sales, imposes new taxes and enacts various 
provisions that have ripple effects through state law.

Johnson argued those ripple effects are not disclosed to voters in 
the 100word summary required by state law.

For example, he noted, it would prohibit a judge handling a child 
custody fight from considering whether one parent uses marijuana. 
There also are new restrictions on the ability of employers to fire 
workers simply for using the drug off premises.

And while the law prohibits driving while impaired by marijuana, it 
sets no legal presumptive standard of how much psychoactive substance 
someone would have to have in his or her blood to be found guilty.

Gentry said even if the challengers had standing to sue, that 
argument would fail.

She said that, pretty much by definition, a summary is just that.

More to the point, the judge noted that Arizona law limits a summary 
to 100 words. Yet Gentry noted that it took her 106 words just to 
list all the things challengers say need to be added to what already 
was a 96-word description.

Yet she said Johnson never told her what was in the original summary 
that could come out to keep the summary at the legally limited 100 
words. "Plaintiffs' position is in essence that the summary should 
have more fully described what the initiative would do but do not 
explain how they could do it better," Gentry wrote.
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MAP posted-by: Jay Bergstrom