Governor Jan Brewer said today she 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 issue arises because Horne issued a legal opinion saying the state's decision to permit people to sell marijuana runs afoul of federal drug laws. And he wants to get a state judge to issue such a ruling. Only thing is, the Attorney General's Office represents all state agencies. That means it would be up to Horne's lawyers to defend the health department in any move challenging its actions. Brewer's move precludes a conflict.
"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," the Governor said.
But Horne said he will not be facing off in court against one of his deputies. Instead, he will intervene in a lawsuit filed by a would-be dispensary operator who cannot get Maricopa County to provide the necessary zoning certification. Horne said this could become a test case of whether federal law trumps the provisions of the 2010 voter-approved Medical Marijuana Act which specifically allows those with certain ailments to possess the drug, and says the state should license people to sell it to them.
"They're proceeding right now because that's their duty," Horne said. "But they have not taken a position as to whether there's preemption or not. If a court says there's preemption, they're going to stop."
There are no hearings scheduled yet on the question.