PHOENIX -- The state Court of Appeals will consider next week whether to at least delay an order for Maricopa County to provide the necessary paperwork for a Sun City medical marijuana dispensary to open.
Without comment the judges agreed to hear arguments by County Attorney Bill Montgomery that officials should not be forced to do something he believes could get them into legal trouble. Montgomery pointed out that marijuana remains illegal under federal law, meaning anyone who helps someone set up shop even in the slightest form is aiding and abetting a felony.
The petition Friday comes after Superior Court Judge Michael Gordon rejected exactly the same arguments -- twice. And on Thursday Gordon ordered the county to process the paperwork, something Montgomery does not want to do.
The hearing this coming week actually is the first step in getting a ruling that would affect dispensaries statewide: While Gordon's decision affects only the proposed Sun City operation, the appellate court ultimately will be asked to decide whether any dispensary licensed by the state under the Arizona Medical Marijuana Act can legally operate given the federal prohibition.
That law permits those with a doctor's recommendation and state approval to obtain up to 2 1/2 ounces of marijuana every two weeks. While the more than 33,000 people already approved have had the option to grow their own, the law envisions a network of more than 125 dispensaries to legally sell the drug.
The first, in Glendale, opened earlier this month and state health officials have given final approval for shops in Tucson and Dragoon.
To get state approval, applicants must show they have the proper zoning. But Maricopa County officials, on Montgomery's advice, refused to provide the certification.
Gordon told him the county had no right to do that and gave them about two weeks to comply. Montgomery is hoping the appellate court will overrule that.
"The county defendants and their employees would find themselves in a dilemma, forced to choose between deliberately defying the Superior Court's order or complying with the order and risking federal prosecution under the Controlled Substances Act,' Montgomery wrote in Friday's filing. And he said that current and former federal prosecutors have said that selling the drug or even helping someone do that remains a federal crime, no matter what state laws say.
"County employees should not be compelled to break the law in order to see if the federal prosecutors are serious,' Montgomery wrote.
The possibility of federal action, however, appears even less likely after President Obama, in an interview this week with ABC News' Barbara Walters, said pursuing even recreational users in states that have decriminalized marijuana entirely is not a top priority.
"We've got bigger fish to fry,' he said in response to a question about the decision of voters in Colorado and Washington to make possession of small amounts of the drug legal under state laws.
"It would not make sense for us to see a top priority as going after recreational users in states that have determined that it's legal,' the president said.
That stance reflects what has generally been the practice at the U.S. Department of Justice regarding medical marijuana. While declining to say there would never ever be anyone prosecuted, federal officials have said pursuing those who use the drug for state-approved medical reasons is not a priority.
In a briefing Friday, presidential press secretary Jay Carney said, though, that Obama's statements did not absolutely mean there would be no enforcement of the Controlled Substances Act.
"The law is the law,' Carney said. "That is why he has directed the Department of Justice to review these ballot initiatives and to make some assessments about how to proceed.'
Carney said the president believes it remains the responsibility of the executive branch to enforce federal laws. But he said that's only half the equation.
"It is also the responsibility of law enforcement agency at the federal level ... to have priorities in the enforcement of the law,' he said. "And that is certainly his position.'