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Maricopa County attorney prompted Horne, Brewer’s medical marijuana suit

Maricopa County Attorney Bill Montgomery at a May 24 press conference. (Photo by Ross D. Franklin/Associated Press)

Maricopa County Attorney Bill Montgomery at a May 24 press conference. (Photo by Ross D. Franklin/Associated Press)

The May 24 announcement that the state’s top Republican officials would be filing a lawsuit in federal court over Arizona’s new medical marijuana law surprised many, but not the man who came up with the idea: Maricopa County Attorney Bill Montgomery, a strident opponent of the new medical marijuana law.

Although neither Brewer nor Horne made any mention of Montgomery or the meeting they had with him about a week before they announced the lawsuit, the decision to seek the suit was made after Montgomery laid out the reasoning he assembled in recent weeks to derail the implementation of the new program.

After reading the May 2 letter written by U.S. Attorney for Arizona Dennis Burke, which reiterated the conflict that has existed between any state-sanctioned medical marijuana laws and federal drug laws, Montgomery said he saw a new way to try to stop the law from going into effect, at least in Maricopa County.

“We have the letter from Burke, making it clear…that the Federal Controlled Substance Act does not provide safe harbor for county employees who facilitate cultivation and distribution sites,” Montgomery said.

Once Montgomery began preparing an argument for the Maricopa County Board of Supervisors that the county cannot issue any cultivation or dispensary permits for any areas under the jurisdiction of the county, he said he got a got a call from Brewer’s office asking for a meeting.

Montgomery explained to Brewer and Horne during a May 18 meeting how he arrived at the conclusion that Burke’s letter put county employees — and, by extension, state employees — at risk of prosecution for violating federal drug laws.

“After that meeting, the governor made the decision to have the attorney general seek the (declaratory judgment suit),” Montgomery said. “Am I driving this train? I can’t make that judgment. Ultimately, the decision was Brewer’s.”

Horne refused to speak about the meeting he and Brewer had with Montgomery, citing attorney-client privilege. He also refused to answer why he made no mention of Montgomery during the May 24 press conference.

Since Brewer and Horne announced their lawsuit, Burke has rejected their interpretation of his letter as “disingenuous” and called their handling of the announcement “odd.”

“They seem to have a grand strategy that is completely disconnected from what is in my letter,” he said. “I’m as perplexed as anyone else.”

Burke said the reason he wrote the letter was not to warn state or county employees that they will be prosecuted for facilitating the new law, but because he saw a need to clearly point out the disjunction between federal and state laws. Burke said he had read newspaper articles citing hopeful dispensary owners who claimed a level of protection from prosecution that simply does not exist. He also had been contacted by Native American leaders asking for his clarification, since any felony charges that arise in tribal areas would come to federal court.

Burke went on to say that he was also surprised that Brewer and Horne announced their lawsuit without actually having the lawsuit prepared, and that he had no knowledge of Montgomery’s involvement in the issue.

“It’s like they had an epiphany, like they woke up on May 24 and said, ‘We have to protect state employees,’” Burke said.

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