Bill Montgomery's Bad Advice on Medical-Marijuana Law Results in Less County Control

Maricopa County Attorney Bill Montgomery's bad advice to County Supervisors on medical marijuana has resulted in less county control of dispensary locations.

The county is now prohibited from imposing any of its own restrictions on a planned dispensary for Sun City because the county failed to comply with a previous ruling on medical-marijuana zoning rules, Maricopa County Superior Court Judge Michael Gordon ruled Wednesday.

Gordon's latest ruling follows a November 15 decision by the state Court of Appeals that seems to bode well for the future of Arizona's voter-approved medical-marijuana law.

See also: -Horne and Montgomery Make Their Move to Nix Arizona's Medical Marijuana Law -Montgomery Prosecuting a Medical-Pot Patient for One Piece of THC-Infused Candy

While officials in cities and counties across the state understood they had to comply with the voter-approved law, Montgomery advised the county Board of Supervisors to ignore it because, he claimed, it conflicted with federal law. The five-member board, one Democrat and four Republicans, voted unanimously in 2011 to take Montgomery's advice and "opt out" of the law.

White Mountain Health Center, the would-be dispensary company, and lawyer Jeffrey Kaufman sued the county in June 2012 after the county zoning department refused to help the company comply with a state licensing program. The American Civil Liberties Union and ACLU of Arizona later joined Kaufman as co-counsel.

Montgomery was eager to respond to the lawsuit, telling New Times at the time that the case might be the "dam" that would block up the entire law.

Judge Gordon ruled last December that the law didn't preempt federal marijuana law and that the state Department of Health Services, which oversees the medical-pot program, could not penalize White Mountain by forcing it to comply with a rule requiring county zoning information that it couldn't obtain. That decision cleared the way for dispensaries to begin opening without fear of state repercussions; dozens of the shops are now open for business across Arizona.

Montgomery appealed the case and even tried to do an end-run around the state Court of Appeals by making an emergency petition to the state Supreme Court for an immediate review. In March, the state's highest court rejected his request.

The county failed to comply with Gordon's December order for a certificate to be issued stating that either White Mountain's dispensary application complied with county zoning requirements, or that the county had no such requirements.

Gordon, a former federal public defender, sounded annoyed at Montgomery in an October ruling about the county's non-compliance. The judge noted that the Board of Supervisors had apparently been prepared to comply with the law in 2011 until it took Montgomery's advice. The county's subsequent restriction on zoning information for would-be dispensaries "suggests a transparent attempt" to block implementation of the law, the judge wrote.

However, as news articles last month mentioned, the October ruling was somewhat overshadowed by the then-looming hearing in the Court of Appeals over the issue of federal preemption. In other words, Gordon's October ruling -- while interesting -- would have been irrelevant if the Court of Appeals ruled after the scheduled November 27 hearing that the state law was unconstitutional and should be thrown out.

For now, the potential doomsday in state courts for the Arizona Medical Marijuana law has been put off once again.

On November 15, the Court of Appeals suspended its review of the case until at least December 31, tossing the ball back in Gordon's cannabis-friendly court. The appellate court noted that Gordon had already found the Arizona law wasn't preempted by federal law and had ordered the county to provide the zoning information to White Mountain, which the county didn't do.

The Court of Appeals seems to be siding with Gordon already on the issue. After all, if the appellate judges were leaning toward the idea that the 2010 law is preempted by federal law, why bother making Gordon do any more work on the case?

Acting on the Court of Appeals November 15 decision, Gordon moved decisively for White Mountain -- and voters -- in his new ruling.

By failing to create reasonable zoning standards in compliance with state law, Gordon ruled on Wednesday, Maricopa County is now forbidden from effecting any zoning regulation or restriction for medical-marijuana dispensaries. The only restrictions on the location of dispensaries are the ones in the state law, such as the requirement that dispensaries be sited no closer than 500 feet from a school, the ruling states.

White Mountain now complies with the county's zoning restrictions for dispensaries, Gordon wrote -- because he's taken away the county's ability to impose restrictions. The state DHS must process White Mountain's dispensary application, he added.

On top of that, the plaintiffs should file an application to collect attorneys' fees from the county, the judge ruled.

With the appeals court suspending its review of the case and allowing Gordon to try to achieve compliance of his previous orders, it's unclear where that leaves Montgomery's appeal. So far, the long-running case hasn't turned out to be Montgomery's "dam," and it appears to be in for some serious delays.

Montgomery hasn't yet responded to our invitation to comment on the matter, but we'll let you know if we hear back.

County Supervisor Andy Kunasek tells New Times that the Board of Supervisors is likely to re-address the issue of dispensaries quickly.

"Like it or not," the voters of Arizona have spoken on the issue, he conceded.

Click here to read the ruling by Judge Gordon.

Got a tip? Send it to: Ray Stern.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.