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.
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jojo1942 posted at 2:16 pm on Fri, Oct 5, 2012.
WAKE UP AMERICA
All tyranny needs to gain a foothold is for people of good conscience to remain silent.
IT'S TIME FOR ALL AMERICANS TO STAND AND SPEAK UP
MUST READ ARTICLES
The Infallible Prosecutor: Google it
10,000 innocent people convicted each year
Scalia's death row lunacy: Google it
Most registered sex offenders are innocent
www.wikipedia.org
Type censorship in the U.S. in the search box
IF YOU DON'T KNOW YOUR RIGHTS
YOU DON'T HAVE ANY
Jury nullification: A fundamental right!
Indiana Constitution: Article1: Section 19:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts. The 9th and 10th amendments to the constitution of the United States means the same thing.
An unjust law is not a law at all and any person charged with violating an unjust law has not violated any law and should be found not guilty simply because the law is unjust!
WE MUST PROTECT OUR CONSTITUTIONS
jojo1942 posted at 2:16 pm on Fri, Oct 5, 2012.
The Mexican drug cartell, built tunnels under the Rio Grande, big enough to drive semi trucks through in both directions and possibly moved hundreds of millions of tons of drugs into the U.S. before the DEA found it. Wonder how many more tunnels they have!
jojo1942 posted at 2:12 pm on Fri, Oct 5, 2012.
The government is wasting billions of taxpayer dollars, fighting their so called war on drugs. They will never win, they can't. It is virtually IMPOSSIBLE!!!
jojo1942 posted at 2:09 pm on Fri, Oct 5, 2012.
The government doesn't have the chance of a snowball in hell in winning their so called war on drugs, for every dealer they take down, 10 take their place, for every user that they take down, 100+ take their place.
Arizona Willie posted at 8:02 am on Sun, Sep 30, 2012.
When is Montgomery up for re-election?
I know there is a recall campaign for Montgomery but why isn't there one for Horne as well?
bubba posted at 11:58 am on Sat, Sep 29, 2012.
It should be mandatory for ALL polititians to disclose ALL personal investments!! I would bet Horne has a significant investment in the privatized prison industry. All ya gotta' do is follow the money to make sense of these polititian's actions. Conflict of interest??
IAB posted at 9:04 am on Sat, Sep 29, 2012.
Because sooooo many arrests have been made in other states with similar MM laws.October 16 they will hear ASA vs DEA which challenges the classification of marijuana. It will be the first time in over 30 years that the court will hear and see evidence of it's medicinal value which should get it reclassified.
Marcy posted at 9:50 pm on Fri, Sep 28, 2012.
Tom Horny is delusional if he thinks the court is going to rule that Arizona voters can't decriminalize pot, that won't make it legal in the eyes of the feds but it certainly will force the State of Arizona to treat it as legal.
(legal for those in compliance with the voter initiative)
dtmac posted at 10:22 am on Fri, Sep 28, 2012.
Well, I can't vote against Tom Horne until 2014, but I sure as hell can vote against Bill Montgomery! VOTE MICHAEL KIELSKY! Libertarian candidate for Maricopa County Attorney General. Montgomery and Horne have both shown that they place their personal beliefs over the will of the voters of Arizona.
TempeTownToilet posted at 9:30 am on Fri, Sep 28, 2012.
The "drug war" is nothing more then a jobs program for police officers, prosecutors, probation officers, public defenders and prison guards. And of course Attorney General Tom Horne is attempting to protect the jobs of that special interest group, which he is a part of.
wdgnas posted at 5:49 am on Fri, Sep 28, 2012.
soricobob: yes and yes. but that doesn't matter to the politicos that are getting the pockets not just lined, but filled by special interests. why else would the politicos that say ' we follow the will of the people' be doing this?
soricobob posted at 4:38 am on Fri, Sep 28, 2012.
Didn't we vote on medical weed, and didn't it pass?
samkat posted at 6:39 pm on Thu, Sep 27, 2012.
If the ACLU wants to smoke weed, then they should find a willing doctor to fork up the necessary paperwork to allow them to smoke away their pain.