Bill Montgomery and Sheila Polk Probed Whether Prop 203 was Constitutional

Categories: Proposition 203

montgomery bill 1.jpg
Bill Montgomery

Back in December, medical marijuana foes Bill Montgomery and Sheila Polk, county attorneys for Maricopa and Yavapai, respectively, quietly explored whether or not Proposition 203 could be declared unconstitutional.

An e-mail sent to the Arizona Department of Health Services on December 6, signed by both Montgomery and Polk, implies that the anti-pot crusaders thought they might have found an angle to defeat the law the voters had recently approved.

A review of the Arizona Medical Marijuana Act turned up a "potential issue," they wrote. "We are concerned that the Act may violate" the Arizona Constitution.

"Concerned" was an interesting word choice for the prosecutors. No doubt, "excited" would have been more accurate.

Montgomery and Polk had fixated on article IX, Section 23 of the state constitution, which says that voter-approved initiatives that cost the state money must be provide for an immediate source of income to offset the expense.

The prosecutors asked DHS to calcuate how much money the state would be spending before a revenue stream from the medical pot program reimbursed the treasury. As you can read in the letter and DHS response,
linked here in Word format, the answer is about $1.1 million.

That would appear to mean the initiative is unconstitutional. However, such a narrow interpretation would have to ignore the fact that Arizona plans on making millions of dollars in the next three years from all the fees it plans to collect from medical pot patients and dispensaries.

Using conservative estimates, the state Joint Legislative Budget Committee determined before November's election that in fiscal years 2012 and 2013, the state would be taking in about twice what it spent on the medical marijuana program.

Polk, one of Proposition 203's most vocal opponents, and Montgomery apparently decided against moving against the new law by using a legal technicality. (Maybe they had visions of tens of thousands of pissed-off voters banging on their doors.) Polk didn't return a call to New Times about the correspondence.

Jerry Cobb, Montgomery's spokesman, tells New Times that Montgomery has no intention of pursuing the issue, and that he didn't want to elaborate further.

Medical marijuana wins again.

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My Voice Nation Help

If they believe that medical marijuana is wrong, they can pursue it. When the conclusions of their pursuit is that they don't have a credible avenue to go down, they should drop it. It seems that this is what has happened here.


Bill didn't pursue it because Bill knew he was wrong or at least realized the courts would smack down his interpretation of the Arizona Constitution.

The Arizona Constitution doesn't require that the revenue source be provided immediately, that would be an absurdity as it always takes the government time to implement any vote initiative, but it requires all the immediate and future costs to be covered by the new revenue source.


They actually thought of Bill's brainfart objection when they wrote the pothead law. It allows the fees to be used to pay the costs of implementation. It would have been unconstitutional if the fees could only have been used to offset costs going forward.

Charles Ward
Charles Ward

I thought Polk was a small-government conservative? You know, one of those folks who always preach about the virtues of freedom, free markets, and so forth? For my part I've never been able to understand how that philosophy can reconcile with the police state mentality that underlies prohibition of pot.


Can you reconcile it with the police state prohibition on the possession of plutonium?

Will you immediately start tap dancing or admit that what something is and what risks it represents to the community at large CAN justify a prohibition in the mind of a small government conservative?

If you admit that plutonium is bad stuff to let people freely have then we can drop the conservative/liberal/freedom/free market crap and get down to discussing the substance itself.

Oh, don't start flapping about how pot is safer than plutonium, until you are willing to drop the free market/conservative smoke blowing.


Charles Ward states:"For my part I've never been able to understand how that philosophy can reconcile with the police state mentality that underlies prohibition of pot. "

Understand this, the people who assume this philosophy can't logically reconcile shit. This type of conservatism is false - designed to confuse people and appeal to their base instincts. People who feign piety and patriotism do so to get elected, plain and simple. We will know them by their acts, not their words. If I hear someone bloviating about how righteous they are, I immediately walk the other way, and if they continue - I call them on it.

BTW - The recreational drug trade is the ONLY TRUE MODEL OF CAPITALISM that exists on this earth. The main difference between the drug trade and the corporate capitalism of today is the provision of a limitation of liability for the owners of the business enterprise. Without the #1 government subsidy to businesses that is limitation of liability, we would have a very small government. No regulatory agencies, no rules on business, and no excess profits - just a capitalist free market system as Adam Smith first observed it in his book Wealth of Nations (1776). Smith felt that opposing large multinational corporations (and the governments that support them), allowed individuals to direct industry to the best possible outcome for the individual and society.

Any true conservative would oppose any government subsidy of corporate "factions", not try to subvert the will of the people in setting up locally owned and operated businesses. Their support of the competiton to medical marijuana - the corporate pharmaceutical monopoly - gives lie to their positions.

Perhaps it's time to consider removing the "limitation of liability" which protects individual owners from the consequences of their actions (e.g., owning shares in BP).


Typical flawed reasoning, comparing a substance used to create a nuclear weapon (and thus harm countless others) with a substance used for medical and recreational purposes that harms nobody except possibly the one who decided to use it..

Obviously, Marcy doesn't understand the nature of a "victimless crime." Or for that matter, anything else.


By that logic, prohibition should be prohibited based on the risks it represents to the community at large by giving over the enterprise entirely to criminals. Prohibition is the refusal to control. It's out of control and dangerous.


As usual Expert Shot, you are right on target.

The largest taxpayer subsidy is the cost the government pays to make up for those owners of business entities which enjoy their windfall profits made from the virtually limitless risk taken by the managers of the companies they own due to the limitation of liability provisions in State laws which charter corporations, LLCs and LLPS. The problems created by these irresponsible risk takers come back to haunt the taxpayers in toxic waste cleanups, court costs for suing the corporations responsible for various and sundry mess ups, and the funeral costs of our military members who are sent to fight wars to subsidize industrial appetites for raw materials in other countries (they got r oil!)! Take away that limitation of liability provision in State and National laws (which we CAN do) and all of a sudden, Polk is personally responsible for her corporations' (yes she owns it if she owns stock in it) and those expenses to cover the screwups, now being paid for by taxpayers, fly right up her asshole! Think she'll be more interested in where her company takes a shit next time - you got that right.

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