The top lawyers for the state and county, strong opponents of Arizona’s medical-marijuana laws, will argue in court today that federal drug laws pre-empt the voter-approved law.
Attorneys arguing on behalf of White Mountain Health Center of Sun City, meanwhile, charge that state law does not require anyone to violate federal laws by issuing permits for medical-marijuana activities since the state has decriminalized those acts. In their lawsuit, they also allege that Maricopa County illegally rejected the center’s registration certificate, which is among the state requirements to become a medical-marijuana dispensary applicant.
At stake is the future of medical marijuana in Arizona, one of 17 states to approve the drug to treat certain medical conditions. If government lawyers prevail, they would shut down the legal growing of marijuana and ensure that dispensaries do not open — making it impossible for patients to legally obtain pot.
Maricopa County Superior Court Judge Michael Gordon will hear arguments at 3 p.m.
“What it would not shut down is that people who qualify can have cards to show a policeman that their possession was not illegal, but they’d have no legal way to obtain marijuana,” said Arizona Attorney General Tom Horne. He added that the law provides no way for patients to legally purchase marijuana from out of state or on the Internet.
Supporters of medical marijuana strongly disagree with the idea that the state law requires government workers to engage in activities that would expose them to liabilities under the federal Controlled Substances Act, which makes possession, sale or use of marijuana a crime.
“The (Arizona Medical Marijuana Act) has decriminalized a subset of marijuana laws for a subset of people,” said Ezekiel Edwards, director of the American Civil Liberties Union’s criminal-law reform project. “This is a validly passed law from the people of Arizona seeking to get a form of medicine for people who really need and want to use it.”
Each side cites various federal and state court cases to bolster its case. Each side also vows to appeal if the judge does not rule its way.
Voters in 2010 passed the measure to allow people with certain debilitating medical conditions, including chronic pain, cancer and muscle spasms, to use medical marijuana. They must obtain a recommendation from a physician and register with the state, which issues identification cards to qualified patients and caregivers. Caregivers can grow 12 plants for up to five patients. Users are limited to 2.5ounces every two weeks.
More than 32,000 people have permission to use medical marijuana in Arizona, and most can also grow their own until the dispensaries open — if they ever do.
Under the law, state health officials can license up to 126 dispensaries throughout designated areas. The law does not limit how much marijuana dispensary operators can grow.
In August, the state Health Department selected 97 dispensary owners to have the opportunity to sell marijuana and operate cultivation sites to grow if they complete certain steps.
That same day, Maricopa County Attorney Bill Montgomery said he would use the Sun City dispensary case as a vehicle to test the federal pre-emption argument. That dispensary is located in an unincorporated area and requires county-zoning approval before it can seek other permits from the state. Montgomery had advised county officials not to participate in the medical-marijuana program, saying employees could risk prosecution under federal drug laws.
Meanwhile, Horne issued a non-binding legal opinion, saying federal drug laws trump the state law when it comes to “cultivating, selling and dispensing” pot. Montgomery and Horne have cited recent crackdowns by federal prosecutors in other states to bolster their arguments.
But U.S. Attorney for Arizona John Leonardo has told The Arizona Republic that while the contradiction between federal and state laws has created anxiety, “to focus our efforts on individuals who are in compliance with state law and may be using marijuana for medicinal purposes, including treating such serious diseases as cancer, would not be the likely and most efficient use of our resources.”
Paul Bender, an Arizona State University constitutional-law professor, said it is extraordinarily unusual that the top lawyers for the state and county are challenging a voter-approved law, since they typically are defending such laws. Bender said he believes politics is motivating their challenge, although he acknowledged the conflict between federal and state laws.
“The legal question is: If you have a federal statute which could be used to pre-empt state law, but the federal government doesn’t use it, should the state go ahead and follow it’s own law?” Bender asked. “That’s the issue. The most sensible thing to do would be to … go ahead and do what the people of Arizona want to do unless the federal government comes in and says stop.”
The legal battle has angered medical-marijuana advocates, many who believe prosecutors are trying to obstruct the will of voters and keep the ill from a form of medicine that they say allows them to tolerate pain better than traditional medicine.
So far, state health officials have issued 37 dispensary-registration certificates, but none has completed the necessary steps to open. Some have said they will wait for the outcome of this case before investing more money.
By Yvonne Wingett Sanchez
The Republic | azcentral.com
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