State and county prosecutors on Thursday renewed their legal fight against Arizona’s medical marijuana program, asking a court to rule that the voter-approved law is illegal on grounds that it conflicts with federal drug law.
Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery made separate but coordinated requests in a case involving a company’s application to operate a medical marijuana dispensary.
The Republican prosecutors’ requests specifically target dispensary provisions of the state law approved by Arizona voters in 2010, but a court ruling that the entire law is pre-empted by federal law would have broader impact.
The Arizona law permits people certified by doctors as having certain medical conditions to use marijuana. They also can be permitted to grow it unless a dispensary opens in their area. The state is considering applications for dispensaries.
“Possession, distribution and cultivation of marijuana are all forbidden by federal law, and state authorization of these activities is pre-empted,” Horne said.
The case pending in Maricopa County Superior Court involves a company applying to operate a medical marijuana dispensary in Sun City. White Mountain Health Center Inc. sued when county officials wouldn’t provide zoning clearances needed under the medical marijuana law.
The officials had been advised by Montgomery that county employees could face prosecution for aiding and abetting drug crimes.
Judge Michael Gordon recently ruled that state health officials could not decline to award a dispensary license to White Mountain because of the county’s inaction.
In their new filings, Horne and Montgomery asked Gordon to dismiss White Mountain’s lawsuit on grounds that Arizona’s law is illegal.
Horne’s filing noted that he recently issued a legal opinion concluding that the state law decriminalizes possession of medical marijuana under state law. But that doesn’t change that possession remains a federal crime, as are growing, selling and dispensing marijuana, Horne said.
Horne cited court rulings elsewhere that federal drug law trumps states’ medical marijuana laws, but two attorneys for dispensary applicants said other rulings have reached opposite conclusions.
Jeff Kaufman, representing White Mountain, said the prosecutors’ filings target his client’s application but really cast a wider aim.
“I’m sure what they’re trying to do is have the entire law pre-empted,” he said.
Ryan Hurley, a lawyer for other dispensary applicants, said Gordon could agree to consider the pre-emption issue or instead, decide the White Mountain case on narrower grounds related to the zoning issue.
Horne and Republican Gov. Jan Brewer previously asked a federal judge to rule on whether Arizona’s law is pre-empted, but the judge refused, ruling in January the state officials hadn’t established a genuine threat of prosecution of state employees for administering the law.
Also in January, a state judge ordered the state to proceed with allowing creation of dispensaries and lifted some of the state’s restrictions. The state has issued use and growing permits to thousands of individuals, but Brewer had balked at implementing the dispensary part of the law.