Medical-Marijuana Dispensaries Win County Battle, but Montgomery's War on Law Goes On
The fight for a medical-marijuana dispensary on unincorporated Maricopa County land won a key victory on Wednesday with the Board of Supervisors lifting its ban on the shops.
Image: Ray Stern Maricopa County Attorney Bill Montgomery: "I'm really supposed to be listening to the voters?"
But the five Supervisors -- one Democrat and four Republicans -- and the county attorney continue to see the case as their ticket to overturning the state's voter-approved medical-pot law.
Back in 2011, the Supervisors voted unanimously to take the advice of County Attorney Bill Montgomery and opt out of the law. The move came days after former Arizona U.S. Attorney Dennis Burke issued a warning letter to state officials about the law's theoretical conflict with the federal Controlled Substances Act.
The planned Sun City dispensary, White Mountain Health Center, sued the county to make it comply with state law. In a sense, White Mountain's a pawn in a political game by Montgomery and state Attorney General Tom Horne, who want marijuana users -- medical or otherwise -- to continue to be hunted and jailed by law enforcement authorities under Arizona's felony marijuana-prohibition laws, which are some of the harshest in the country.
The state's lottery system for dispensaries forced businesses to locate only in certain areas, meaning White Mountain -- which had won the lottery for the Sun City area -- had to either sue or lose its initial investment of time and money. Yet by doing so, White Mountain fell into the trap of Horne and Montgomery, who were looking for a case they could use to fight the law in court.
So far, the trial-court decisions have not been favorable for the Supervisors and lawmen. Although it seem that the Arizona Medical Marijuana Act conflicts with federal law (we've been guilty of making that assumption), the law is not so easily interpreted.
Superior Court Judge Michael Gordon ruled in December of 2012 that the AMMA does not conflict with federal statutes. It's more a matter of how the state's voters wish to enforce or not enforce anti-marijuana laws, or to set up a program for marijuana to be used medicinally. Gordon noted that the feds are still free to enforce federal law, if they want. The ruling removed the blockade on dispensaries created by Horne and Governor Jan Brewer. Dozens of the shops are now open across Arizona.
Then, in November, Gordon ruled that the county was acting unreasonably with its blanket prohibition on medical-pot shops, and ordered officials to stop thwarting state law. Based on that ruling, the Supervisors voted 4-0 on Wednesday to lift its ban and allow dispensaries in areas zoned for commercial businesses.
Jeffrey Kaufman, a Valley attorney, and the American Civil Liberties Union are providing White Mountain Health Center's legal defense.
Jeffrey Kaufman, White Mountain's attorney, says the nonprofit dispensary's principals plan to open to the public in March at 9421 West Bell Road.
"We hope now to have peace with the county so that we don't have to challenge the new statute," Kaufman tells New Times.
Mary Rose Wilcox, the board's lone Democrat, called in sick to Wednesday's meeting. But Wilcox and her fellow Supervisors continue to authorize Montgomery's appeal of the decisions in the White Mountain case. Although Democrats have typically supported the issue of medical-marijuana and states' ability to pass decriminalization laws, Wilcox has stood with those who believe the voters should not have passed the law.
The county has a pending motion before the state Court of Appeals to stay Gordon's November order. If the court grants that motion, White Mountain's March opening will be off. Kaufman expects the appellate court to decide on the motion within days. But even a positive ruling there for White Mountain will hardly end the matter.
in a news conference on Wednesday, Montgomery said it should come as no surprise to anyone that he disagrees with Gordon's rulings. His office will ask the state appellate court, and the state Supreme Court, if need be, to reverse them. But unless Gordon's decisions are overturned, he admits, "we're sort of in the Twilight Zone."