New legal challenge to medical marijuana law

PHOENIX -- The state's top prosecutor asked a judge Thursday to void a key provision in Arizona's 2-year-old medical marijuana law.

In legal papers filed in Maricopa County Superior Court, Attorney General Tom Horne argued that voters are legally powerless to authorize anyone to sell marijuana as long as it remains illegal under federal law.

The real goal is to get a ruling declaring the state and federal laws in conflict. Horne said that will then allow him to direct the state Department of Health Services to halt the current process of licensing up to 126 dispensaries to sell the drugs even before the first one has opened its doors.

Horne is not seeking to invalidate the more than 31,000 cards which the health department has issued to people who have a doctor's recommendation to use the drug. He said there is a technical legal difference to how Arizona law is worded that he believes allows state officials to provide the cards as identification.

But Maricopa County Attorney Bill Montgomery, filing similar paperwork Thursday in the same case, does not share that view.

He believes the state-issued cards to medical marijuana users also are preempted by the federal Controlled Substances Act. And he is seeking a court ruling, whether in this case or another, that wipes out the entire 2010 Arizona Medical Marijuana Act.

The legal filings come in a case where the White Mountain Health Center filed an application to operate a dispensary and cultivation site in Sun City.

Arizona law requires dispensary owners to first show that they have the necessary zoning and use permits before they can get a license. But the Maricopa County Board of Supervisors, which controls the zoning in the unincorporated area, refused to process the request on Montgomery's advice.

The dispensary owners filed suit, asking Maricopa County Superior Court Judge Michael Gordon to force the county to act.

Montgomery, who is named as a defendant in that case, said in his response that he just can't do that. And as proof, he cited the ruling earlier this year by the U.S. Supreme Court which struck down some key provisions of the state's 2010 law aimed at illegal immigrants.

In that case, Montgomery said, the high court ruled that state laws are preempted by federal statutes where they conflict and where a state law would be "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'

In this case, he said, Congress specifically classified marijuana as a Schedule 1 drug, for which there is no legitimate medical use.

"Dispensary owners are authorized to grow and distribute unlimited quantities of marijuana,' Montgomery argued. "There could be no more patent obstacle to the accomplishment of the full purpose of the federal law and therefore no more blatant conflict with the Controlled Substances Act.'

Horne insisted he is a reluctant warrior in the fight against the Medical Marijuana Act.

"I tried to avoid the issue,' he said. "I went for a long time not taking a position on this.'

He said his hand was forced after prosecutors in 13 of the state's 15 counties asked him for a formal legal opinion on whether the state law is preempted by federal statutes.

"And when we looked up the cases, this is what the cases said,' Horne said.

"A state may not authorize what the federal government expressly prohibits under Article 6 of the United States Constitution which provides for federal supremacy in case of conflict,' he explained. "So any laws that authorize the growing or sale of marijuana are preempted.'

But Ryan Hurley, an attorney who represents some dispensary owners, said Horne is wrong to rely on these two cases.

"The factual pattern is very different' from how Arizona law operates, he said. "And they completely ignore other cases out of California and Michigan and frankly another case out of superior court in Arizona that says the exact contrary.'

Horne and Hurley do agree on one thing: Nothing in federal law precludes Arizona from issuing cards to people who have a doctor's recommendation to use the drug.

"I feel the cards are OK because they act as a form of identification,' Horne said.

He said nothing in federal law requires Arizona -- or, for that matter, any state -- to make it a state crime to possess marijuana. And Horne said he sees the medical marijuana law as a variant of that, with the law decriminalizing marijuana possession for certain people.

In essence, he said, that card becomes something a medical marijuana user can present that to an Arizona police officer to show that he or she cannot be charged under state marijuana laws.

And Horne said Arizona health officials can issue the cards without running afoul of federal law because those cards technically do not "authorize' anyone to use a federally prohibited drug.

Montgomery, however, isn't buying that argument that these are simply ID cards.

"That's not how it was pitched to voters,' he said. Montgomery said the initiative was pitched as a way for people to legally use marijuana in Arizona, regardless of federal law.

But Montgomery said he's not going to be pushing hard on that point, at least not immediately, saying he intends to focus his attention on dispensaries.

Horne acknowledged that Arizona is one of more than a dozen states with similar laws. And despite the Controlled Substances Act, there has been no wholesale effort by the U.S. Department of Justice to shutter the dispensaries.

There have, however, been some legal actions.

Just this past week, for example, the U.S. Attorney's Office in Los Angeles went to court to seize three properties housing six marijuana stores. In that case, though, federal prosecutors said that the shops were not only outside federal law but were not permitted under California's medical marijuana law.

Horne said, though, the lack of federal action against dispensaries elsewhere is irrelevant to his legal opinion.

"That's not the question with which I was presented,' he said. "The question I was presented was a very specific legal question.'

It could turn out that Gordon rules on the case without ever addressing the bid by Horne and Montgomery to issue a broad ruling on federal preemption.

In his legal filings, Montgomery said what the clinic owners want is a court order for him to alter his advice to the supervisors. And he said courts are powerless to issue such an order.

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