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Horne, Montgomery challenge Arizona medical marijuana law

In this Tuesday Jan. 26, 2010 file photo, a pedestrian walks past a marijuana leaf neon sign advertising a medical marijuana provider along a street in the Sherman Oaks section of Los Angeles, Calif. States may be saying yes to medical marijuana, but local governments are increasingly using their laws to keep dispensaries out. In California, nearly 200 city and county governments have banned marijuana dispensaries over the last eight years. That?s three times as many as have adopted regulations for them. (AP Photo/Richard Vogel)

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.


  1. A grand jury investigation is under way into allegations of campaign finance violations by Arizona Attorney General Tom Horne and his 2010 election campaign.The Maricopa County Attorney’s Office leading the grand jury probe with the investigation being handled by the FBI.The investigation stems from a complaint filed earlier this year against Horne’s campaign by Don Dybus, a Tucson-based lawyer in the Attorney General’s Office and a former Horne campaign worker.Dybus claims Horne’s 2010 Republican campaign improperly coordinated with an outside political group. That group, Business Leaders for Arizona, was funded via a $115,000 donation from Horne’s brother-in-law in California, according to a report first published by the Arizona Capitol Times.

  2. Why are we paying Horne and Montgomery to spend tax dollars to overturn the will of the voters? Horne should be more concerned about his own legal troubles than trying to put cancer patients in jail.

    “A grand jury investigation is under way into allegations of campaign finance violations by Arizona Attorney General Tom Horne and his 2010 election campaign.The Maricopa County Attorney’s Office leading the grand jury probe with the investigation being handled by the FBI.”

  3. Keven11
    You ignore the fact that voters actually rejected the marijuana proposition on the ballot until a recount magically found a few extra votes to make it succeed by a whopping two-tenths of one percent. If put back on the ballot, the public would likely reject the proposition because it has failed to help a single medical patient find proper treatment and has, instead, become a way for young people to use fake pain to feed their drug habit.
    Alaska found legel pot to only spread poverty and crime and they rejected it. Holland has started scaling it back and only the problematic California has embraced it as a success. We aren’t California and don’t plan to beome California any time soon.
    Thanks for coming… Try the buffet.

  4. Keven11 is only looking for what he wants to see, and he’s doing so with his eyes closed. In Colorado, the state government is complicit in the production & distribution of cannabis for the state’s medical cannabis patients. The state is reaping enormous tax rewards from their involvement, as is CA, and the feds have not arrested a single state government official, not in CO, or any of the other 17 states that have legalized medical cannabis. You can cite the small percentage that passed it in AZ all you want. It will make no difference. This is a national, and a world wide, phenomenon. Several Latin American presidents are calling for an end to the drug war. Mexico has legalized ALL drugs in small quantities for recreational use. Columbia is moving to legalize the growing of both Cannabis and Coca, the plant that produces Cocaine, for its citizens & has already made some possession legal. The drug war is, as it should be, in its death throes, and legalization of Cannabis will be forth coming, though the market will likely be taken over by the big drug companies. Bayer is already marketing an true Cannabis inhaler. The people want it, and they’re going to get it. Get used to it! Ignorant dinosaurs like these 2 AZ politicians, who are only trying to force their own will & thought processes on the citizens of AZ, are also in their death throes, at least as far as a political career goes. BTW, I’m 65, a successful California walnut farmer, have smoked cannabis nearly everyday of my life since age 21, have committed no other crimes and can still score 145 on an IQ test, and that’s higher than I scored at age 17! I wish Cannabis wasn’t so dangerous, eh?!?!?! GET REAL!

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