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The Verde Independent | Cottonwood, Arizona

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8/9/2012 2:54:00 PM
Gov's waiver lets Horne challenge medical marijuana
Attorney General Tom Horne said Gov. Jan Brewer's waiver will allow one of his deputies to continue to provide legal advice to the state health department even as he personally pursues a court order declaring the dispensaries preempted by federal law.
Attorney General Tom Horne said Gov. Jan Brewer's waiver will allow one of his deputies to continue to provide legal advice to the state health department even as he personally pursues a court order declaring the dispensaries preempted by federal law.

Howard Fischer
Capitol Media Services

PHOENIX -- Gov. Jan Brewer has signed a waiver which will allow Attorney General Tom Horne to try to close down the marijuana dispensaries that her state health department is in the process of licensing.

The move comes in the wake of Horne's formal legal opinion that the state cannot legally permit anyone to sell marijuana, even only to those who have a doctor's recommendation to use the drug. Horne said as long as the drug remains illegal under federal law, the state is powerless to authorize anything to the contrary.

But the governor said Thursday she does not intend to block Health Director Will Humble from continuing the process of issuing state permits. And Humble, who conducted a lottery Tuesday to see who gets to serve each of the 126 health districts in the state, said the first of those shops could be open by the end of the month.

The issue arises because the Attorney General's Office represents all state agencies. That means it would be up to Horne's lawyers to defend the Department of Health Services in any legal proceeding challenging its actions.

"I gave him a waiver and put kind of a wall between Mr. Horne and myself so that he could represent this position and he could still represent me with other attorneys on the other side,' Brewer said.

Horne said this arrangement will allow one of his deputies to continue to provide legal advice to Humble even as he personally pursues a court order declaring the dispensaries preempted by federal law.

But he insisted this won't create a situation where he will be facing off in court against one of his deputies.

Horne said he intends to legally intervene in a legal fight between Maricopa County and the owner of a clinic that wants to open a marijuana dispensary in Sun City. That has been thwarted because the board of supervisors, acting under advice of County Attorney Bill Montgomery, refused to provide the necessary zoning certification.

The attorney general figures that could become a test case for the larger issue of whether government agencies can process requests to do something that remains a crime under federal law. By extension, that would require a judge to decide if federal law trumps the provisions of the 2010 voter-approved Arizona Medical Marijuana Act which specifically authorizes people with certain ailments to possess the drug and those licensed by the state to sell it to them.

"The health department isn't taking a position,' Horne said, meaning that his office won't have someone representing the agency at the hearing to defend the legality of the dispensaries even as he works to shut them down.

And he said the fact that the health department is going ahead with the licensing of the dispensaries does not mean it believes operation of the outlets is legal.

"They're proceeding right now because that's their duty,' he said.

Brewer pointed out that she had some concerns about the legality of the dispensaries and specifically whether state health workers who process the licenses could be charged with violating the federal Controlled Substances Act for "facilitating' others to obtain the drug. She even had ordered Humble not to process the applications.

"I took it to court and I was ruled against, (with a judge) saying that I had to implement the law,' Brewer recalled Thursday. "So we moved forward under the direction of the court.'

But the governor said Horne and Montgomery remain free to try to shut down the dispensaries anyway.

"If they believe they have a reason to think they can get that overturned, they have that right and privilege to do that,' Brewer said. "But in the meantime we have and will continue to move forward until we hear differently.'

The fact that Horne is joining forces with Montgomery in the Sun City case does not mean he shares all of the county attorney's views about how far Arizona can go with its medical marijuana law.

Montgomery said he believes all portions of the law are preempted, including the ability of the health department to issue cards entitling those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. The county attorney said he hopes to get a ruling which would allow him to advise police officers that they are free to arrest those who possess marijuana even if they have a state-issued card.

Horne, in his formal legal opinion, said he does not believe that the Controlled Substances Act prevents the state from issuing cards that identify people as medical marijuana users who are exempt from arrest under state drug laws.

"It is beyond Congress' power to dictate the parameters of state criminal conduct,' he wrote.

Horne said courts are not bound by formal opinions of the attorney general. "But they do treat them with respect,' he said.

Taylor Waste
Related Stories:
• Despite legal threat, state health dept. allocates medical marijuana dispensary bids
• Attorney general taking medical marijuana law to state court

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Reader Comments

Posted: Monday, August 13, 2012
Article comment by: Mary Jane

Those of you who thwart the will of the people with your jack-booted march to continue the violation of human rights in your 'War on Drugs' (which is really a war on citizens exercising their constitutional rights) will surely go down on the wrong side of history! Why is it you seem incapable of learning from history? The first time we tried prohibition we got Al Capone and his ilk. We repealed prohibition and got rid of the gangsters. So instead of learning the obvious lesson here, you try it again and Surprise!!!!! We have gangsters running amok once again. Guess what the answer is folks. Again Repeal Prohibition!

Posted: Sunday, August 12, 2012
Article comment by: Slater Slater

Where do you find these scumbag politicians.
I've turned a few rocks in my time but it's usually a rattler.NOT A SCUMBAG.

Posted: Sunday, August 12, 2012
Article comment by: Disturbed Arizona Voter

When are the elected officials of this state and our country going to carry out the will of the voting public, and not just their own. This is the third time our state has passed this measure for medical marijuana 2years later they are still coming up with reasons why it doesn't matter what the people want. Federal law? Isn't stopping the state from doing what it wants with other immigration! Come on Ms Brewer and Mr, Horne where are they now? Do the will of the people or get out!

Posted: Friday, August 10, 2012
Article comment by: It's time to replace Brewer

It's time to replace a govenor who does not listen to what the people of Arizona have said and voted for.!

Posted: Friday, August 10, 2012
Article comment by: Phil Falbo

@ Jan

This time, you are wagging your skinny, insulting, shriveled finger in the face of the Arizona voters.

You say, "... we have and will continue to move forward until we hear differently.'

Deaf and dumb lady, you already have heard differently, you just don't listen.

Miserable leadership, thy name is "Arizona," and, "Brewer."

Posted: Thursday, August 9, 2012
Article comment by: Peter, Yavapai County

Usually a politician flips, then flops. Jan has taken a tip from Mitt's play book. Now she (like he), can flip even as she is flopping. Once upon a time, Republicans despised flip floppers. Now they promote them and hold them up as the only hope for America.

If she is saying she respects the jurisdiction of federal government to enforce federal drug law, then simply declare the voters "wrong" on this issue and stand up to the judge.

But if she respects the will of Arizona voters, then stand up to the federal government on this issue (like she did on the border enforcement issue).

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