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1/29/2013 9:43:00 AM
Montgomery pushes challenge to state's medical marijuana law

Howard Fischer
Capitol Media Services

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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Reader Comments

Posted: Monday, February 25, 2013
Article comment by: itsy bitsy Spider

Much as I hate to admit it, Bill "The Weasel" Montgomery isn't as much of a threat to Arizonan's civil liberties as Representative John Kavanagh. Check it out.


VI article "Patients criticize more foot-dragging on medical marijuana" 1/29/2013
Re: Medical Marijuana Act amendment/repeal HCR 2003 January 4, 2013

VI article "Bill would make it easier to lock up mentally ill on probable cause" 2/12/2013 (online only)
Re: HB 2158, which eliminates the requirement for police officers to personally observe aberrant behavior in order to detain and hold someone at a hospital for 24 hours, thus allowing police to rely on what others say they have seen to hold someone for 48 hours.

VI article "Panel vote requires teachers to report potential 'crazy evil people'" 2/21/2013
Re: HB 2555, which requires teachers and health professionals to report potentially dangerous people to the police.

Posted: Thursday, January 31, 2013
Article comment by: Fare Play

What a strange place Arizona is. Its ok to own and stockpile as many weapons as you want, without background checks or mental health evaluations, but it is a felony punishable up to and including life in prison for using buying or selling marijuana. Which by the way was legal when the constitution was written.

Posted: Thursday, January 31, 2013
Article comment by: Gaia Gurl

Only problem Megan with going after REAL crimminals is that they are DANGEROUS.

So much EASIER and PROFITABLE to go after people with MARIJUANA.

They are NON VIOLENT and you get Federal FUNDING.

Not to mention if you FILL up the PRISONS, you get BIG BUCKS at election time!

Posted: Thursday, January 31, 2013
Article comment by: Megan Rumley

Bill Montgomery needs to listen to the people of Arizona. Just because he is against it doesnt mean everyone else should be, that would be conflict of interest. How he is brainwashing them to believe it is wrong, and they will be reprimanded if they go against HIS belief. Let the cancer patients live in comfort, or anyone else that meets the requirements. Focus on killers, rapists, child molesters, and all those other people that intentionally hurt innocent people.

Posted: Tuesday, January 29, 2013
Article comment by: Michael May

I really hope that the people of Maricopa County Inform this man that his job is to represent the laws of the land as the people of this land see fit not how he sees fit. The "war on drugs" is an unconstitutional fit against the people in the first place. Why not petition the supreme court to over turn the unconstitutional laws regulating behavior which does no harm to another.

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