Tue, June 18

Judge: Federal law does not trump state's medical marijuana statute

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.