Bill Montgomery's Bad Advice on Medical-Marijuana Law Results in Less County Control

Categories: Medical Weed

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Maricopa County Attorney Bill Montgomery's bad advice to County Supervisors on medical marijuana has resulted in less county control of dispensary locations.

The county is now prohibited from imposing any of its own restrictions on a planned dispensary for Sun City because the county failed to comply with a previous ruling on medical-marijuana zoning rules, Maricopa County Superior Court Judge Michael Gordon ruled Wednesday.

Gordon's latest ruling follows a November 15 decision by the state Court of Appeals that seems to bode well for the future of Arizona's voter-approved medical-marijuana law.

See also:
-Horne and Montgomery Make Their Move to Nix Arizona's Medical Marijuana Law
-Montgomery Prosecuting a Medical-Pot Patient for One Piece of THC-Infused Candy

While officials in cities and counties across the state understood they had to comply with the voter-approved law, Montgomery advised the county Board of Supervisors to ignore it because, he claimed, it conflicted with federal law. The five-member board, one Democrat and four Republicans, voted unanimously in 2011 to take Montgomery's advice and "opt out" of the law.

White Mountain Health Center, the would-be dispensary company, and lawyer Jeffrey Kaufman sued the county in June 2012 after the county zoning department refused to help the company comply with a state licensing program. The American Civil Liberties Union and ACLU of Arizona later joined Kaufman as co-counsel.

Montgomery was eager to respond to the lawsuit, telling New Times at the time that the case might be the "dam" that would block up the entire law.

Judge Gordon ruled last December that the law didn't preempt federal marijuana law and that the state Department of Health Services, which oversees the medical-pot program, could not penalize White Mountain by forcing it to comply with a rule requiring county zoning information that it couldn't obtain. That decision cleared the way for dispensaries to begin opening without fear of state repercussions; dozens of the shops are now open for business across Arizona.

Montgomery appealed the case and even tried to do an end-run around the state Court of Appeals by making an emergency petition to the state Supreme Court for an immediate review. In March, the state's highest court rejected his request.

The county failed to comply with Gordon's December order for a certificate to be issued stating that either White Mountain's dispensary application complied with county zoning requirements, or that the county had no such requirements.

Gordon, a former federal public defender, sounded annoyed at Montgomery in an October ruling about the county's non-compliance. The judge noted that the Board of Supervisors had apparently been prepared to comply with the law in 2011 until it took Montgomery's advice. The county's subsequent restriction on zoning information for would-be dispensaries "suggests a transparent attempt" to block implementation of the law, the judge wrote.

However, as news articles last month mentioned, the October ruling was somewhat overshadowed by the then-looming hearing in the Court of Appeals over the issue of federal preemption. In other words, Gordon's October ruling -- while interesting -- would have been irrelevant if the Court of Appeals ruled after the scheduled November 27 hearing that the state law was unconstitutional and should be thrown out.

For now, the potential doomsday in state courts for the Arizona Medical Marijuana law has been put off once again.

On November 15, the Court of Appeals suspended its review of the case until at least December 31, tossing the ball back in Gordon's cannabis-friendly court. The appellate court noted that Gordon had already found the Arizona law wasn't preempted by federal law and had ordered the county to provide the zoning information to White Mountain, which the county didn't do.

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Image: arizonamarijuanalawyers.com/
Jeffrey Kaufman
The Court of Appeals seems to be siding with Gordon already on the issue. After all, if the appellate judges were leaning toward the idea that the 2010 law is preempted by federal law, why bother making Gordon do any more work on the case?

Acting on the Court of Appeals November 15 decision, Gordon moved decisively for White Mountain -- and voters -- in his new ruling.

By failing to create reasonable zoning standards in compliance with state law, Gordon ruled on Wednesday, Maricopa County is now forbidden from effecting any zoning regulation or restriction for medical-marijuana dispensaries. The only restrictions on the location of dispensaries are the ones in the state law, such as the requirement that dispensaries be sited no closer than 500 feet from a school, the ruling states.

White Mountain now complies with the county's zoning restrictions for dispensaries, Gordon wrote -- because he's taken away the county's ability to impose restrictions. The state DHS must process White Mountain's dispensary application, he added.

On top of that, the plaintiffs should file an application to collect attorneys' fees from the county, the judge ruled.

With the appeals court suspending its review of the case and allowing Gordon to try to achieve compliance of his previous orders, it's unclear where that leaves Montgomery's appeal. So far, the long-running case hasn't turned out to be Montgomery's "dam," and it appears to be in for some serious delays.

Montgomery hasn't yet responded to our invitation to comment on the matter, but we'll let you know if we hear back.

County Supervisor Andy Kunasek tells New Times that the Board of Supervisors is likely to re-address the issue of dispensaries quickly.

"Like it or not," the voters of Arizona have spoken on the issue, he conceded.

Click here to read the ruling by Judge Gordon.

Got a tip? Send it to: Ray Stern.
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25 comments
Donkey_Hotay_is_God
Donkey_Hotay_is_God

 Bar Association Bitch-Slaps Unethical Marijuana McLawyers !!

This one is for DONKEY_HOTAY, vindicated at last by the CO-Bar... It was a long time coming, but now here is the official slapdown of marijuana McLawyer ethics by their own ethics committee, in a Formal Opinion adopted Oct. 21, 2013 and just released:

Colo. Bar Association Ethics Committee Says Marijuana Lawyers Violate Rules of Professional Conduct

http://www.cobar.org/tcl/tcl_articles.cfm?articleid=8370

The Ethics Committee of the Colorado Bar Association (CBA) has formally ruled that it is a violation of ethics rules for attorneys to advise or assist their clients in violation of federal marijuana laws, even if the activities are legal under state law. According to the Colorado Rules of Professional Conduct 1.2(d), "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal...."

The Opinion states that, despite the fact that "Colorado voters approved a constitutional amendment decriminalizing the possession and use of small amounts of marijuana for recreational use on November 6, 2012", " marijuana continues to be illegal under federal law for all purposes."

The CBA Ethics Committee Formal Opinion states:

"Nevertheless, unless and until there is a change in applicable federal law or in the Colorado Rules of Professional Conduct, a lawyer cannot advise a client regarding the full panoply of conduct permitted by the marijuana amendments to the Colorado Constitution and implementing statutes and regulations. To the extent that advice were to cross from advising or representing a client regarding the consequences of a client’s past or contemplated conduct under federal and state law to counseling the client to engage, or assisting the client, in conduct the lawyer knows is criminal under federal law, the lawyer would violate Rule 1.2(d)."


Read it and weep, you greedy unethical Marijuana McLawyers!


Thanks to Donkey_Hotay for calling this one from the beginning! 

.

MaskedMagician1967
MaskedMagician1967 topcommenter

MontyPug will soon join his predecessor Candy Andy and the Miscreants in the hall of shame because he is a bad lawyer.

He and the other Republican narcissistic douchebags need to stop ignoring the will of the voters and do their jobs. Sadly though this is Arizona where the mentally sick and corrupt rule with an iron fist.

shadeaux14
shadeaux14

Oh oh Bill, Mommy Herrod gonna spank.

malcolmkyle16
malcolmkyle16 topcommenter

Trying to control each and every thing that 350 million people do with their own bodies is not small government!

Pragmatic libertarians (minimal-statists) and true conservatives agree: that many, if not most, of society's problems are caused by government usurping choices that could better be made by individuals themselves, and that government is just about the worst way of doing almost anything. Where libertarianism normally parts company with "fake" conservatism is over moral issues. A true conservative would have no problem with agreeing that what people do with their own bodies, and especially in the privacy of their own home, should be supremely their business and that anything else would entail ignoring the basic tenet of limited government.

If you support prohibition then you are NOT a conservative.

Conservative principles quite clearly are:

1) Limited, locally controlled government.

2) Individual liberty coupled with personal responsibility.

3) Free enterprise.

4) A strong national defense.

5) Fiscal responsibility.

Prohibition is an authoritarian war on our economy and Constitution.

Puerile.Pot.Punk
Puerile.Pot.Punk


    ### DEA Arrests, Seize Guns in Marijuana Dispensary Raids ###

When federal agents swooped into a swanky Cherry Hills Village home last week as part of widespread raids tied to medical-marijuana businesses, they found a person inside holding a loaded gun, according to a court document unsealed Monday.

By the time they were done searching the $1.3 million home Thursday, agents had collected five assault-style rifles, five handguns, a shotgun and a "large cache of ammunition," according to the document. It did not identify the person with the gun.

One person was detained and later arrested on suspicion of weapons violations, authorities announced Monday. As part of their investigation, agents had obtained an e-mailed photograph that appears to show that man, 49-year-old Hector Diaz, holding two semi-automatic rifles while wearing a Drug Enforcement Administration ballcap.

The details on the raids — disclosed for the first time Monday — come from an affidavit in the criminal case against Diaz and provide new context for the largest federal operation against medical-marijuana businesses ever in Colorado. Agents executed "approximately 15" search warrants during the raids, the affidavit states. Sources have told The Denver Post that the raids — which a search warrant shows targeted 10 men — were part of an investigation into a single enterprise that detectives believe may have ties to Colombian drug cartels.



Flyer9753
Flyer9753 topcommenter

HAHAHA!!!! 

This reminds me of an AC/DC song since Montgomery is definitely biting the dust on this entire issue.

When are the control freak Republicans in this state going to learn that they no longer control this state or the people in it?? 

Actually though, I am glad they are not learning it, since as painful as this crap is to go through, it's making Arizona go Blue much faster than anyone expected.. that's what happens when you ignore and deliberately flaunt the will of the people.

MikeParent
MikeParent

"Much ado about nothing"   These Prohibitionists are running around like chicjens without a head.  Whya re they going against the will of the people.  Who's their master?

Joe Hernandez
Joe Hernandez

Bill Montgomery has had nothing but bad advice. The simple fact is he does not want the law to be implemented and will do all he can to reverse the decision.

eric.nelson745
eric.nelson745 topcommenter

See, here's a case where Republicans, who always insist on "letting the people vote," don't like what the people have said and will do anything to thwart "the will of the people."

joeyismail
joeyismail

It took that moron this long to realise the people have spoken? What is he, mentally handicapped?

elmergantry71
elmergantry71

@Donkey_Hotay_is_God TL;DR as they say in interweb culture.


Consult Strunk & White for guidance.

_Hoosier_Daddy_
_Hoosier_Daddy_

@malcolmkyle16 

Colorado's A64 is a CONTINUATION of CRIMINAL PROHIBITION against Marijuana!

Colorado's A64 created a MASSIVE STATE REGULATORY Bureaucracy ... funded by HUGE NEW TAXES upon marijuana users.

Epic Fail !!


joe_hernandez
joe_hernandez

To me this looks like a failed raid involving a typical gun nut. Cannabis was not mentioned as seized property.

Puerile.Pot.Punk
Puerile.Pot.Punk

@Flyer9753 

"the will of the people" = 25 mile radius [ 1963 square miles ] exclusion zone around for-profit retail dispensaries where felony penalties are enforced against patients and caregivers who would dare grow a SINGLE PLANT for themselves.

What pig-ignorant stupid stoners would fuck themselves in the ass with such prohibitionist idiocy?


elmergantry71
elmergantry71

@Joe Hernandez Or delay it if he can't break it. He's not the fool some paint him; he's just an evil prohibitionist.

WhoKnows
WhoKnows topcommenter

@eric.nelson745 Yup.  They want smaller and less intrusive government UNLESS they don't like ESTABLISHED LAWS! (or they think their religion defines all laws)

elmergantry71
elmergantry71

@joeyismail He's not mentally handicapped; he's just a utilitarian scoundrel. I doubt he thought any of these ploys would fly in the end. They did buy his side some time, though, and at no cost to him personally.

danzigsdaddy
danzigsdaddy topcommenter

@joeyismail  I was going to say he was incompetent..............but adding your "mentally" comment in front of it will pretty much cover it and makes it more accurate

HonkeyDotay
HonkeyDotay

@Puerile.Pot.Punk @DonkeyHotay If the law actually does prohibit marijuana like you say, wouldn't AMMA be a good thing? You've made it clear in your previous posts that you are a marijuana prohibitionist, yet now are arguing that AMMA isn't effective enough at legalizing (medical) marijuana. Now, why would a prohibitionist like yourself argue from a seemingly AMMA-is-not-good-enough pro-marijuana viewpoint when in all reality you have no interest in marijuana EVER becoming legal? It's because we're on the fast-track to COMPLETE marijuana legalization and you can't handle it. The thought of total marijuana legalization frightens you. It's actually quite funny really.

The concern troll DonkeyHotay posts under many different names, but his/her message is the same. Don't be fooled, guys.

https://en.wikipedia.org/wiki/Troll_%28Internet%29#Concern_troll

Flyer9753
Flyer9753 topcommenter

@WhoKnows @eric.nelson745 

They want a smaller, less intrusive govt. for THEMSELVES.. but (literally) god forbid anyone else get that, it would take away their ability to be control freaks

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