|James King/Phoenix New Times
|Arizona Attorney General Tom Horne is busily trying to block the medical marijuana law approved by state voters two years ago
None of the shops has yet opened its doors; not a single patient has yet been sold a single joint of marijuana. But Arizona’s top cop on Thursday asked a judge to void a key provision in the state’s two-year-old medical marijuana law, arguing that judges are legally powerless to authorize anyone to sell cannabis as long as it remains illegal under federal law.
Attorney General Tom Horne’s real goal is to get a ruling declaring the state and federal laws are in conflict, reports Howard Fischer at Capitol Media Services
. Horne said that would allow him to direct the Arizona Department of Health Services to stop the process already underway of licensing up to 126 marijuana dispensaries.
Horne claimed he’s not trying to invalidate the more than 31,000 medical marijuana cards that Arizona has issued to patients with a doctor’s recommendation to use cannabis. Horne believes the technical legal wording in Arizona law does permit state officials to issue the cards — unlike Maricopa County Attorney Bill Montgomery, who filed similar paperwork Thursday, but believes even the cards are also preempted by federal law.
|Rebekah Zemansky/Cronkite News
|Maricopa County Bill Montgomery is determined to prove himself an even bigger asshole than Attorney General Horne. He seeks a court ruling to wipe out the entire 2010 Arizona Medical Marijuana Act
Montgomery is seeking a court ruling, whether in this case or another, that wipes out the entire 2010 Arizona Medical Marijuana Act approved by state voters.
Both legal filings come in a case where the White Mountain Health Center applied to operate a marijuana dispensary and cultivation site in Sun City, Arizona. State law requires dispensary owners to first prove they have the necessary zoning and use permits before being licensed.
But the Maricopa County Board of Supervisors, which controls zoning in the unincorporated area, on Montgomery’s advice refused to process the request. The dispensary owners sued, asking Maricopa County Superior Judge Michael Gordon to force the county to move forward and follow state law.
But Montgomery, who is named as a defendant in the case, claims he can’t do that, citing a ruling earlier this year by the U.S. Supreme Court striking down key provisions of SB 1070, Arizona’s 2010 law aimed at illegal immigrants.
|Arizona Attorney General Tom Horne claims his research determined the state “may not authorize” what the federal government prohibits
In that case, Montgomery claimed, the Supreme Court ruled that state laws are preempted by federal laws when they conflict. In this case, he claimed, Congress specifically classified marijuana as a Schedule I drug, defined as one with no legitimate medical uses and a high probability of abuse.
Meanwhile, Attorney General Horne claimed he was only reluctantly fighting his state’s voter-approved medical marijuana law. But he claimed his hand was forced after prosecutors in 13 of Arizona’s 15 counties asked him for a formal legal opinion on whether the state’s medical marijuana law is preempted by federal law.
Horne claims his research determined that a state “may not authorize” what the federal government expressly prohibits.
But Horne is mistaken about that, according to attorney Ryan Hurley, who represents some dispensary owners. “And they completely ignore other cases out of California and Michigan and frankly another case out of Superior Court in Arizona that says the exact contrary,” Hurley said.