By Yvonne Wingett Sanchez
The Republic |
Wed Dec 5, 2012 12:43 AM

A court ruling that Arizona’s controversial medical-marijuana law does not conflict with federal drug laws cleared the way Tuesday for dispensaries to open and allows patients to legally obtain marijuana from the facilities.

The long-awaited decision by Maricopa County Superior Court Judge Michael Gordon rejected arguments made by Maricopa County Attorney Bill Montgomery and Arizona Attorney General Tom Horne that the voter-approved law should be shut down because marijuana is illegal under the federal Controlled Substances Act and that state employees would be facilitating federal crimes if they issued licenses to medical-marijuana dispensaries.

The first dispensary, Arizona Organix, is scheduled to open at 10a.m. Thursday in Glendale, with another to follow in Tucson later this month.

“This means that dispensaries are going to be able to open and start serving patients in Arizona,” said attorney Ryan Hurley, an expert in the state’s medical-marijuana law.

“And it means patients are finally going to have the access voters intended them to have to medicine that makes them feel better.”

Gordon, in his ruling, made clear that marijuana is still illegal under federal law, but he wrote that the U.S. Constitution allows Arizona to make different policy choices than the federal government when it comes to decriminalizing and regulating medical marijuana. He ruled that the Arizona Medical Marijuana Act does not undermine the purposes of the federal Controlled Substances Act, which makes possession, sale or use of marijuana a crime.

“Clearly, the mere State authorization of a very limited amount of federally proscribed conduct, under a tight regulatory scheme, provides no meaningful obstacle to federal enforcement,” Gordon wrote. “No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree.”

The judge also noted that 18 states and the District of Columbia have passed legislation permitting the use of medical marijuana, adding: “This Court will not rule that Arizona, having sided with the ever-growing minority of States and having limited it to medical use, has violated public policy.”

Montgomery and Horne said in written statements said that they will appeal.

“As the trial court notes, the questions of law presented in this case and the analysis utilized by the trial court are not well settled or universally accepted,” Montgomery’s statement read. A spokesman for Montgomery stressed that the office’s position on the program has not changed.

Karen O’Keefe, director of state policies at the Marijuana Policy Project in Washington, D.C., said Gordon’s ruling falls in line with other decisions.

“No court has ever said that it would be a crime for somebody to implement a state medical-marijuana law,” she said. “This is generally in keeping with other court decisions that found states could remove the criminal penalties for medical marijuana and set up some sort of regulatory system.”

O’Keefe said the federal government has not prosecuted anyone for implementing medical-marijuana programs.

“To suggest there was actually a real threat of this … is certainly foolish,” she said.

Voters in 2010 passed the measure to allow people with certain debilitating medical conditions, including chronic pain, cancer and muscle spasms, to use medical marijuana. They must obtain a recommendation from a physician and register with the state, which issues identification cards to qualified patients and caregivers. Caregivers can grow 12 plants for up to five patients. Users are limited to 2.5ounces every two weeks.

More than 33,000 people have permission to use medical marijuana in Arizona, and most can also grow their own until the dispensaries open.

Under the law, state health officials can license up to 126 dispensaries throughout designated areas. The law does not limit how much marijuana-dispensary operators can grow.

In August, the state Department of Health Services selected nearly 100 dispensary owners to have the opportunity to sell marijuana and operate cultivation sites to grow if they completed certain steps.

Gordon’s ruling stemmed from a legal argument over whether Maricopa County was required to approve zoning for White Mountain Health Center, which wanted to open a dispensary in an unincorporated area near Sun City.

Montgomery had advised county officials not to participate in the medical-marijuana program, saying employees could risk prosecution under federal drug laws.

Meanwhile, he and Horne used the case to test the federal pre-emption argument.

Butch Williams, an owner of White Mountain Health Center, said he hopes to soon fulfill the necessary requirements to become a full-fledged dispensary.

Gordon ruled that Maricopa County must provide the center with paperwork that it complies with zoning restrictions.

“The voters have a constitutional right to implement this in their state, and I’m glad the will of the voters is being listened to,” Williams said.

Attorney Ezekiel Edwards, director of the American Civil Liberties Union’s criminal-law reform project, argued on White Mountain Health Center’s behalf during an Oct.19 hearing.

He disagreed with the notion that state law requires government workers to engage in activities that would expose them to liabilities under the Controlled Substances Act.

“The court understood the regulation of drugs and medicine is traditionally a power exercised by the states and that Arizona voters had chosen, as is their right, to decriminalize and regulate the medicinal use of marijuana,” Edwards told The Arizona Republic. “There’s nothing in federal law or in the Constitution that prevents Arizona from doing this.”

One Response to Judge rules Arizona’s medical-marijuana law is constitutional

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