State Capitol News
9:09 am
Mon October 22, 2012

State Prosecutors Take Med Pot Law to Court

Prosecutors urged a judge on Friday to declare medical marijuana dispensaries and growing facilities preempted by federal law.

A 2010 voter-approved law says people with certain medical conditions and a doctor's recommendation can obtain up to 2 1/2 ounces of marijuana every two weeks. And it envisions a network of state-regulated dispensaries that can grow and sell the drug. But would-be dispensary owners must first provide a letter saying they have the proper zoning. And Maricopa County officials, acting on advice from County Attorney Bill Montgomery, refused to do that for people who sought to open a dispensary in Sun City. So they sued asking a judge to order the county to comply. Montgomery argued in court on Friday that the Arizona Medical Marijuana Act essentially requires public employees to aid and abet people who intend to sell marijuana which remains illegal under the federal Controlled Substances Act. And he said the state cannot do that.

"It violates federal law," Montgomery argued. "In essence, that's the problem. If you're going to create a regulatory scheme that affirmatively permits people to violate federal law, you can't do that."

But Zeke Edwards, representing the would-be dispensary owners, said Montgomery is making way too much out of this. He said the state is entitled to have its own laws on marijuana, regardless of what the federal government considers a crime.

"Arizona can decriminalize all marijuana, some marijuana, or it can criminalize all marijuana," Edwards said. "And it's made the choice here, the voters of Arizona, to decriminalize just some which they're permitted to do under the Tenth Amendment and their sovereign rights."

Montgomery admitted as much to Judge Michael Gordon.

"But that's not what we have done here," Montgomery said. "What we have done here as I mentioned during the course of the argument, we've created a very affirmative regulatory scheme requiring people to pay to then have the right to violate federal law, versus Arizona simply saying we no longer have any interest in pursuing prosecutions in this area. And I think there's a very fundamental difference between the two."

But Edwards said the fact that Arizona voters chose to set up some regulations, as opposed to simply declaring that all or some people can use and purchase marijuana, does not amount to the state licensing people to break federal law.

"States are allowed to regulate matters of medicine and health," Edwards said.  "And the fact is you're not encouraging such conduct. They're simply figuring out a way to allow law enforcement to know who is and isn't breaking state law. And that's what the MMA does."

Anyway, he noted that nothing in the state law precludes federal prosecutors from enforcing their laws. But he pointed out that those prosecutors in Arizona have shown no interest in going after those who comply with state medical marijuana laws, much less in prosecuting state officials for processing dispensary applications. But Montgomery said that's only the policy of the current administration. And all that could change as soon as January.

"There's no way to tell who they might be when they come in," he said. "And that person could come in and say that I'm going to strictly enforce every single law under the Controlled Substances Act and I'm going to go after everybody."

While this case involves one marijuana dispensary, the ultimate outcome of the court fight will determine whether there are ever any places in the state to legally buy the drug.