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Medical-Marijuana Dispensaries Win County Battle, but Montgomery's War on Law Goes On

Maricopa County Attorney Bill Montgomery: "I'm really supposed to be listening to the voters?"
Maricopa County Attorney Bill Montgomery: "I'm really supposed to be listening to the voters?"
Image: Ray Stern

The fight for a medical-marijuana dispensary on unincorporated Maricopa County land won a key victory on Wednesday with the Board of Supervisors lifting its ban on the shops.

But the five Supervisors -- one Democrat and four Republicans -- and the county attorney continue to see the case as their ticket to overturning the state's voter-approved medical-pot law.

See also: -Montgomery's Bad Advice on Medical Marijuana Results in Less County Control

Back in 2011, the Supervisors voted unanimously to take the advice of County Attorney Bill Montgomery and opt out of the law. The move came days after former Arizona U.S. Attorney Dennis Burke issued a warning letter to state officials about the law's theoretical conflict with the federal Controlled Substances Act.

The planned Sun City dispensary, White Mountain Health Center, sued the county to make it comply with state law. In a sense, White Mountain's a pawn in a political game by Montgomery and state Attorney General Tom Horne, who want marijuana users -- medical or otherwise -- to continue to be hunted and jailed by law enforcement authorities under Arizona's felony marijuana-prohibition laws, which are some of the harshest in the country.

The state's lottery system for dispensaries forced businesses to locate only in certain areas, meaning White Mountain -- which had won the lottery for the Sun City area -- had to either sue or lose its initial investment of time and money. Yet by doing so, White Mountain fell into the trap of Horne and Montgomery, who were looking for a case they could use to fight the law in court.

So far, the trial-court decisions have not been favorable for the Supervisors and lawmen. Although it seem that the Arizona Medical Marijuana Act conflicts with federal law (we've been guilty of making that assumption), the law is not so easily interpreted.

Superior Court Judge Michael Gordon ruled in December of 2012 that the AMMA does not conflict with federal statutes. It's more a matter of how the state's voters wish to enforce or not enforce anti-marijuana laws, or to set up a program for marijuana to be used medicinally. Gordon noted that the feds are still free to enforce federal law, if they want. The ruling removed the blockade on dispensaries created by Horne and Governor Jan Brewer. Dozens of the shops are now open across Arizona.

Then, in November, Gordon ruled that the county was acting unreasonably with its blanket prohibition on medical-pot shops, and ordered officials to stop thwarting state law. Based on that ruling, the Supervisors voted 4-0 on Wednesday to lift its ban and allow dispensaries in areas zoned for commercial businesses.

Jeffrey Kaufman, White Mountain's attorney, says the nonprofit dispensary's principals plan to open to the public in March at 9421 West Bell Road.

"We hope now to have peace with the county so that we don't have to challenge the new statute," Kaufman tells New Times.

Mary Rose Wilcox, the board's lone Democrat, called in sick to Wednesday's meeting. But Wilcox and her fellow Supervisors continue to authorize Montgomery's appeal of the decisions in the White Mountain case. Although Democrats have typically supported the issue of medical-marijuana and states' ability to pass decriminalization laws, Wilcox has stood with those who believe the voters should not have passed the law.

The county has a pending motion before the state Court of Appeals to stay Gordon's November order. If the court grants that motion, White Mountain's March opening will be off. Kaufman expects the appellate court to decide on the motion within days. But even a positive ruling there for White Mountain will hardly end the matter.

in a news conference on Wednesday, Montgomery said it should come as no surprise to anyone that he disagrees with Gordon's rulings. His office will ask the state appellate court, and the state Supreme Court, if need be, to reverse them. But unless Gordon's decisions are overturned, he admits, "we're sort of in the Twilight Zone."

 

Denny Barney, chair of the Maricopa County Board of Supervisors, at Wednesday's meeting.
Denny Barney, chair of the Maricopa County Board of Supervisors, at Wednesday's meeting.
Image: Ray Stern

Montgomery said he can't very well ask the court to review the issue, then advise someone else to ignore a court order.

We wanted to know: What was the difference between telling the Supervisors to ignore a court order versus telling them to ignore the wishes of voters?

Apples-to-oranges comparison, Montgomery replied. He then explained how if state lawmakers passed a law that interfered with his ability to act as county attorney, he'd have to go along with it even as he fought it in court. If that analogy wasn't clear enough, he offered a "ridiculous example" to highlight his point.

"If the Legislature or citizens were to pass a law saying only ... a white land owner could vote, and anyone else who got in line to vote would be charged with a felony... there's no way I'm going to accept that case and charge it," he said.

Seems to us his arguments could be used to fight for the voter-approved law, which expands the freedom of Arizonans unlike his imagined "white male" law, but he's the legal expert.

"The analogy is simply to underscore that simply because something gets passed doesn't automatically mean it's constitutional," Montgomery said.

Still, we had to ask -- since Montgomery disagrees with Arizona voters and disagrees with court decisions on the issue, is he on sort of a personal jihad against marijuana decriminalization?

Montgomery laughed. "Yeah," he said. "In which case it's a really dumb move, huh, because the only people who consistently seem to be angry about any given issue are the people who want to see marijuana legalized or be made available for medicinal purposes."

New Times reminded him that the latter group of people he mentioned happened to include a majority of Arizona voters.

"I'm really supposed to be listening to the voters?" Montgomery responded. He noted that within the borders of Maricopa County, the 2010 initiative was defeated.

"I could say I'm following the wishes of the people of Maricopa County," he said, adding that he's not actually saying that.

Montgomery indicated he would not accept a defeat at the state Supreme Court as the final word on the matter.

"We'll see what happens," he said.

With a unified Board of Supervisors willing to foot the bill for an appeal indefinitely, the 2010 law -- and all the businesses that have been created by it -- remain on shaky legal ground.

Click here if you care to see the new ordinance allowing MMJ dispensaries on county land.

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