The American Civil Liberties Union is asking a judge to rebuff efforts by Attorney General Tom Horne to block state licensing of medical marijuana dispensaries.
In legal papers filed Thursday, attorneys for the group want Maricopa County Superior Court Judge Michael Gordon to rule that Arizona is constitutionally entitled to determine what it does and does not want to make a crime.
They acknowledged the federal Controlled Substances Act makes possession, sale and transportation of marijuana a felony. But they told Gordon that none of that criminalizes the activities of state and local employees in processing the paperwork for everything from licenses to zoning permits, the reason Horne and Maricopa County Attorney Bill Montgomery contend that part -- if not all -- of the state law is void.
Ezekiel Edwards, the lead ACLU attorney in the case, also argues that Arizona has a Tenth Amendment right under the U.S. Constitution to make its own drug laws -- or, in this case, allow some people to possess marijuana -- despite Congress making it a federal crime.
And Alessandra Soler, state director of the ACLU, said her organization believes the bid by the prosecutors to halt implementation of the state law has nothing to do with their concerns about conflicts with federal statutes.
"We think that Horne and Montgomery are doing this because they're trying to advance their own personal, political agenda,'' she said.
Horne, in turn, took his own shot.
"I think that the founders of the American Civil Liberties Union, which was founded to fight political suppression ... would turn over in their graves if they knew what the ACLU is doing now is protecting pot smoking,'' he said.
The 2010 voter-approved law allows those with a doctor's recommendation to get a state-issued card allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks. There are currently more than 32,000 cardholders in Arizona.
Until now, users have been able to grow their own drugs or trade with others. But the law envisions 126 dispensaries scattered throughout the state authorized to grow and sell to cardholders.
While the Department of Health Services has awarded about 100 permits -- some areas have no applicants -- it has yet to conduct a final inspection of any site, a necessary precursor to opening its doors.
Horne and Montgomery want to stop that from happening. And they are doing it through a lawsuit filed by White Mountain Health Center over its bid to open a dispensary in the unincorporated community of Sun City.
County officials, on Montgomery's advice, refused to provide the necessary documentation to show they have the requisite zoning. Jeffrey Kaufman, the clinic's attorney, wants Gordon to rule that the county cannot refuse to perform its role in implementing the Arizona Medical Marijuana Act.
The prosecutors have, in effect, countersued, telling Gordon that judges are legally powerless to authorize anyone to sell marijuana as long as it remains illegal under federal law.
Montgomery's view is even more sweeping: He contends it is illegal for the health department to even issue cards to users.
The court fight has statewide implications, as whoever loses is virtually certain to appeal. And that appellate level ruling will be binding beyond Maricopa County.
In the legal briefs, Edwards said the U.S. Constitution gives each state the right to decide if it wants to make possession and sale of marijuana a crime. In this case, he said, allowing some people to sell and have the drug is just a variation of decriminalization, albeit on a more limited scale.
Horne said, though, the Arizona law does more than just say Arizona won't prosecute some people.
"The state has a right to decriminalize marijuana if it chooses,'' he said.
" But what it cannot do by the language of its statute is authorize people to violate federal law,'' Horne continued. "And that's exactly what we're seeing.''
Edwards conceded that federal law is enforceable in Arizona. And no change in state law can stop federal prosecutors from arresting anyone for possession or sale of marijuana under the Controlled Substances Act.
But in this case, he said, nothing in the federal law requires any individual to violate federal law. He said anyone concerned about federal prosecution is free to decide not to become a medical marijuana user or vendor.
And Edwards said while public employees do have duties under the state law, that does not mean they are violating federal law.
"Compliance with a ministerial duty -- such as approving and issuing building permits for dispensaries -- cannot legitimately expose county employees to federal prosecution for aiding and abetting'' the violation of federal marijuana laws, he wrote.
A hearing before Gordon is set for Oct. 19.