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The Verde Independent | Cottonwood, Arizona

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12/6/2012 2:18:00 PM
Judge: Federal law does not trump state's medical marijuana statute

Howard Fischer
Capitol Media Services

PHOENIX -- Arizona's 2-year-old medical marijuana law is legal and is not preempted by federal law, a trial judge ruled Tuesday.

In an extensive ruling, Maricopa County Superior Court Judge Michael Gordon rejected arguments by Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery that the voter-approved Arizona Medical Marijuana Act is contrary to public policy and therefore void because the possession and sale of marijuana remain a federal crime.

In his decision, Gordon pointed out that 18 states and the District of Columbia already have enacted laws permitting some form of legal marijuana use. And the judge said he wasn't about to declare Arizona's own version invalid.

"This court will not rule that Arizona, having sided with the ever-growing minority of states and having limited it to medical use, has violated public policy,' he wrote.

Most immediately, the decision should pave the way for a dispensary to get the paperwork it needs to open in Sun City. But the broad scope of the ruling, unless overturned, provides firm legal grounds for the state going ahead with its plans to license more than 100 dispensaries around the state.

Both Horne and Montgomery vow to appeal.

Gordon acknowledged that Congress enacted the Controlled Substances Act to combat drug abuse and to the control the legitimate and illegitimate traffic of drugs. That law classifies marijuana as a Schedule 1 drug for which there is no legitimate medical use.

And the judge agreed that the 2010 initiative allowing the medical use of marijuana reflects "a very narrow but different policy choice' about the drug. But he said the fact that Arizona has a different view of the drug does not conflict with or illegally undermine the federal law: Federal agents remain free to arrest Arizonans who violate that federal statute.

Horne said that misses the point.

He said Arizona could decriminalize the possession of marijuana entirely, similar to what voters just approved in Washington and Colorado. That would leave it up to federal agents to decide if they want to charge anyone with violating the Controlled Substances Act.

In this case, though, Horne said the state is actually authorizing the sale of marijuana.

"A state cannot authorize what the federal government prohibits,' he said. In fact, Horne pointed out that the majority of Oregon Supreme Court, confronting the exact same question just last year, found that state's medical marijuana statutes preempted by federal law.

Gordon acknowledged that ruling. But he said he sees not conflict and said what voters approved in Arizona actually could be interpreted to support the goals of Congress in combating drug abuse.

"The Arizona statute requires a physician to review a patient's medical circumstances prior to authorization of its use,' he said. Those without a card remain subject to arrest under state law.

Gordon also said the initiative also gives the state health department "full regulatory authority.' That agency, in turn, has enacted rules to ensure that those dispensaries which operate within the law.

The 2010 initiative says individuals with certain medical conditions and a doctor's recommendation can get a state-issued identification card allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks. The most recent figures show more than 33,600 applications have been approved.

That law also envisions a network of up to 125 state-licensed dispensaries to grow and sell the drug to cardholders and their caregivers. But state health officials, acting on directions from Gov. Jan Brewer, initially refused to process licenses until two separate courts rejected their arguments that the law is illegal.

In the interim, cardholders have been able to grow their own drugs.

The state has since given final approval to two dispensaries, one in Tucson and one in Glendale, though neither has opened its doors.

But the owners of White Mountain Health Center ran into a problem: The health department requires that anyone seeking a dispensary permit must provide documentation that the site is properly zoned.

In this case, Maricopa County officials, acting under Montgomery's advice, refused to provide the necessary letter. The county is involved because Sun City is an unincorporated area.

Dispensary owners sued, asking Gordon to order the county to issue the letter.

The state and county prosecutors told the judge he can't do that because of the federal preemption. Beyond that, they said public employees would be aiding and abetting the possession and sale of marijuana in violation of federal law.

Gordon, however, said a conviction under federal law for aiding requires proof the person assists or participates in committing the crime. He said that's not the case with public workers.

"Their specific intent is to perform their administrative tasks,' the judge wrote.

"They have no interest in whether the dispensary opens, operates, succeeds or fails,' Gordon continued, saying the workers "wholly unconnected to and separate from' the people who actually will be selling the drugs. "These employees cannot be held accountable for conduct that they anticipate will occur but could care less if it actually does.'

The case before Gordon dealt solely with the license to operate a dispensary and had nothing to do with the ability of state workers to issue the ID cards to medical marijuana users.

But Montgomery has said he believes that federal law trumps that, too, and intends to try to have those declared illegal -- if he can get this ruling overturned.

Horne, however, has a different view, saying the ID cards simply identify for state and local police those people who cannot be prosecuted under state drug laws. Horne said it does not authorize these individuals to actually violate federal drug laws.

Taylor Waste

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Reader Comments

Posted: Tuesday, December 11, 2012
Article comment by: Slater Slater

Tom Horne? He's still trying to pull his pants up.

Posted: Tuesday, December 11, 2012
Article comment by: M J

Mr McLaughlin
I understand your point and I agree with you that narcotic pain pills are a deadly menace to society. Oxycontin seems to be nothing more than a pill form of heroin.

However, my question still stands. When I am hit by said trucker who tests positive for maryjewanna ... who do I sue, the trucker or the trucking company?

Alcohol has a limit for driving, .08 I believe. So what is the limit with maryjewanna? Will there be a limit? I hope so.

If a bar patron stops in their favorite watering hole and has a beer or two and a couple of joints, what is the limit then? A combination of say .05 for the booze and X amount for the maryjewanna? If I am hit by said bar patron and they have .05 for booze and on top of that maryjewanna in their system .... who do I sue? The bar patron, or the bar for over serving? Can I sue?

How will maryjewanna be taxed? Heavily I hope. Hey .... in the words of joe (the village idiot) biden, your just doin' your patriotic duty.

When an establishment has a no smoking policy, does this include maryjewanna? I hope so. The smell of cigarettes offends me, and the smell of maryjewanna offends me.

HaHaHa ..... you heard 'bout the Lady who sued McDonald's for hot coffee? ..... wellll, what if (to get out of a legal jam) that same Lady gets into a traffic accident, and blames the establishment (Joe's smokin' BBQ joint) she ate dinner at, that they allow maryjewanna smokin', and she got a buzz from the inadequate ventilation, and it's the establishments fault for the accident.

If I go to a doctor and he/she screws up my proscription, I sue, and the doctor has maryjewanna in his/her system, who do I sue? The doctor or the hospital? Can the doctor prove that he/she didn't smoke maryjewanna that morning, but smoked some on his/her day off when fishin' two days ago?

Legalizing maryjewanna is gonn' be a lawyers dream come true. New clients. LOTS of new clients.

Personally, I'm going after the deepest pockets.

Folks on here keep sayin', "grow up 'bout pot," welllllll ...... back at ya ........ just followin' the old Dylan song, "everybody must get stoned," ain't bein' so grown up.

Please google the word responsibility.

Posted: Tuesday, December 11, 2012
Article comment by: itsy bitsy Spider

I think it works the other way around, Verde Voter:

Grow up and stop prohibition.

Posted: Sunday, December 9, 2012
Article comment by: Verde Voter

Bet horne and montgomey have their hands out for the tax money collected along with the rest of the hippocrits. Feds must Decriminalize this plant now and let the new business begin. Lets put the big kid pants on and get real. This plant produces paper, fabric, rope, medicines, food and OIL. It generates revenue, jobs, and products. Stop the prohibition and grow up.

Posted: Saturday, December 8, 2012
Article comment by: m j

The eternal optimist.

What if you don't survive?

Posted: Saturday, December 8, 2012
Article comment by: MJ, let me rephrase your question

Mr McLaughlin
And when I am hit by said trucker who tests positive for narcotic pain pills ... who do I sue? the trucker or the trucking company ..... seems to me the trucking company has deeper pockets.

Too many people like you are missing the real deadly menace to society: the deadly narcotic pain pills that are consumed like candy in America. It's time to forget the Reefer Madness movie and focus on the legal meds that are killing people of all ages.

Posted: Saturday, December 8, 2012
Article comment by: Slater Slater

Mj,sue the same people you would if hit by a
dump truck driver on meth,or drunk.Case closed
Oh sorry meth isn't legal and driving high isn't

Posted: Saturday, December 8, 2012
Article comment by: Mary Jane

Mr. Horne,
Does being Attorney General require that you be a licensed attorney or can any dis-barred, low-life, law-breaking lawyer do it?

Posted: Friday, December 7, 2012
Article comment by: M J

Mr McLaughlin
And when I am hit by said trucker who tests positive for maryjewanna ... who do I sue? the trucker or the trucking company ..... seems to me the trucking company has deeper pockets

Posted: Friday, December 7, 2012
Article comment by: Hear that Tom Horne?

Now maybe our Attorney General can get back to work for the people of Arizona instead of against them.

Posted: Thursday, December 6, 2012
Article comment by: Matt McLaughlin

what the legalization of weed does in washington and colorado states is>
that the feds cant use a local cop to ensure a trucker has been fired (for example) who has tested positive for marijuana per USDOT random drug test.
a fed has to do it now.
the employee can sue the employer and medical review officer, labs used in state court for wrongful termination.

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