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1/26/2013 10:29:00 AM
Montgomery pushes challenge to 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: Sunday, January 27, 2013
Article comment by: Matthew Holmes

Mr. Montgomery needs to look at the issuing entity on his paychecks: Maricopa County. He is not a US Attorney and should leave such decisions where they belong: to the Feds. Perhaps President Obama's newfound radical liberalism will nudge Congress into striking marijuana from the list of prohibited drugs altogether and end this insane nightmare we call the war on drugs (for marijuana at least). Mr. Montgomery, I'm sure you have much more important items on your agenda: illegal immigration, violent crime, violations of labor laws, keeping public officials accountable to the laws they swore to uphold, just to name a few. Light up, relax, and take a load off your obviously misinformed, paranoid, obsessive mind.

Posted: Saturday, January 26, 2013
Article comment by: John Markes

It's a shame Maricopa County Attorney Bill Montgomery wants us to support the gangs and cartels that sell marijuana to children and perpetrate violence. Why do you support the black market instead of regulated outlets? Since the main result of this is that gangs and cartels keep their lucrative market selling to children with no competition from legal suppliers who don't, one wonders why Maricopa County Attorney Bill Montgomery wants children to have greater access to marijuana? Or does he just prefer gangs and cartels to legal regulated supplies?

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