Originally Published: September 14, 2017 6:02 a.m.
PHOENIX — The Arizona Supreme Court won’t allow state and local officials to hide behind federal drug laws to throw roadblocks in the path of those who want to sell marijuana.
Without comment, the justices have refused to review, much less overturn, a Court of Appeals ruling rejecting arguments that federal law trumps the 2010 voter-approved Arizona Medical Marijuana Act. The lower court said the fact that marijuana remains a felony under federal law does not preempt the state from deciding to decriminalize it for some.
That same ruling also specifically rebuffed contentions that having county officials issue the zoning permits required for dispensaries would mean they were illegally aiding and abetting in the violation of federal law.
In reaching that conclusion, the judges pointed out that nothing in Arizona law — or in their ruling — protects dispensary operators or even medical marijuana users from being pursued and prosecuted by federal authorities under federal law.
But attorney Steven White who represented the dispensary that argued the case, said that, for all intents and purposes, that can’t happen -- at least not now.
He pointed out that a provision in the budget, first inserted in 2015, precludes the U.S. Department of Justice from using any of its funds to prosecute providers of medical marijuana if they are complying with state laws. That provision was just renewed.
That extension, however, runs only through Dec. 8, meaning Congress will need to vote again if they want to keep Attorney General Jeff Sessions and his staffers in check.
The decision by the Supreme Court drew a slap from Maricopa County Attorney Bill Montgomery who had sought to use the federal law to not only block new dispensaries but effectively void the decision by voters to legalize the drug for medical use.
“It represents the latest failure of every level of the judicial branch in Arizona, from the trial court to the Court of Appeals to the highest state court of review, to fulfill their respective oaths of office,” he told Capitol Media Services.
The 2010 law allows those with a doctor’s recommendation and a state-issued ID card to obtain up to 2 1/2 ounces of marijuana every two weeks. The law also set up a network of state-regulated privately run dispensaries to sell the drug.
Before issuing a permit for a dispensary, though, state health officials need certification from the local government that the site is properly zoned. White Mountain Health, seeking to locate in Sun City, which is unincorporated, sought the necessary certification from the county.
Montgomery, however, instructed county officials not to respond. He argued that doing so would make them guilty of violating federal laws which prohibit not only the possession and sale of marijuana but doing anything to facilitate either.
Most significant, he contended that anything the state enacts cannot preempt federal law. Montgomery said the Supremacy Clause of the U.S. Constitution makes federal laws supreme and says “the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
But Judge Donn Kessler, writing for the appellate court last year, said nothing in the federal Controlled Substances Act actually prohibits states from having their own drug laws.
Anyway, the judge said, the fact that Arizona has chosen to legalize the possession and sale of marijuana simply immunizes those involved from being prosecuted under Arizona law. He said there is no conflict with federal law because nothing that Arizona does precludes the federal government, if it wants, from enforcing its own laws.
“The Arizona Medical Marijuana Act does not otherwise purport to shield anyone or any act from federal prosecution,” Kessler wrote.
Nor was Kessler persuaded by that claim that county officials would be “aiding and abetting’’ those violating federal drug laws. He said county officials were not promoting the sale of marijuana but instead dealing with a simple zoning matter.
And Kessler said that budget provision limiting the Department of Justice from prosecuting people in compliance with their own state’s medical marijuana laws undermines Montgomery’s contention that state or county officials could find themselves prosecuted under federal law.
None of that convinced Montgomery that Arizona voters were ever free in the first place to legalize medical marijuana, saying that trial court acknowledged the conflict between federal law and what voters enacted.
“Accordingly, the Arizona Medical Marijuana Act should have been held unconstitutional without regard for the method in which it passed into law,” he said. “Unfortunately, the court’s abdication of its duty leaves Maricopa County residents, who have consistently voted against legalizing any access to marijuana whether medicinal or recreational, at the mercy of the policy choices of the federal government.”
But while it’s true that voters in Maricopa County -- and, in fact, in 12 others -- opposed the 2010 initiative legalizing marijuana for medical use, there was strong enough support in Pima and Coconino counties to have the measure approved on a statewide basis.