State Pot Laws Still Could Be Reversed, Maricopa County Attorney Bill Montgomery Insists

At the beginning of this month, Oregon became the third state where adults 21 and older can buy marijuana at retail stores — and Arizona may not be far behind.

But the pro-legalization movement and even Arizona's medical-marijuana program could still be derailed in the next few years by court rulings or by a new president, Maricopa County Attorney Bill Montgomery maintains.

New Times asked the Republican politician and pot prohibitionist about the start of retail sales in Oregon, where he thinks the law still could be reversed, and about how such a thing could occur when all signs suggest that the United States is growing more, not less, cannabis-friendly.

"Just simply saying that a state law permits some conduct doesn't mean it's constitutional." — Maricopa County Attorney Bill Montgomery

tweet this
Oregon follows Colorado and Washington in a pioneering experiment that reverses decades of failed anti-cannabis enforcement, allowing pot to be sold like alcohol to anyone of qualifying age who wants it.

The Northwest state's officials had planned to begin recreational sales after its regulatory scheme was ready to roll out. But voters had made marijuana possession legal starting in 2014, leaving state residents with nowhere to buy marijuana legally — except perhaps in neighboring Washington, which began retail sales last year. To let state businesses compete, Oregon allowed its existing medical-marijuana dispensaries to start selling weed to adults 21 and older. No edibles or concentrates will be sold in the recreational program yet, though — that'll have to wait until next year's launching of state-regulated retail stores.

Colorado has the most experience with retail marijuana, having opened to residents and visitors in January 2014. A fourth state, Alaska, where voters passed outright legalization in 2014, may have retail stores open by late next year. In Washington, D.C., a 2014 legalization law doesn't allow retail sales, just legal possession and personal cultivation.

Next year, Arizona voters almost certainly will be asked to approve Colorado-style legalization. A proposed ballot initiative by the Campaign to Regulate Marijuana Like Alcohol in Arizona would allow state residents to grow a small amount of marijuana for personal use and to possess up to an ounce of buds or five grams of concentrates legally. The state's medical-marijuana dispensaries would have a head start on selling marijuana under the recreational-sales plan

Certain polls show that state voters lean toward the idea, which one analysis shows could bring $72 million yearly in tax revenue to the state. Arizona already has a robust medical-marijuana program with about 80,000 patients; it brings $10 million-plus each year to the state in sales taxes.

Could all of this progress come undone?

If Obama's successor takes his or her oath of office seriously, Montgomery asserted, the new president would "issue a moratorium" on marijuana shops.

"If there are any uses for medical marijuana," various treatment programs could continue as long as they were supervised by the Food and Drug Administration, he said. "In terms of the retail sales, you know . . . they should be shut down as quickly as possible."

Montgomery holds out hope that the judicial system will overturn what he sees as unconstitutional state laws.

A new president could change the equation, in Montgomery's opinion.

In an earlier discussion about the 2016 election, Montgomery said, unsurprisingly, that he didn't support Democratic candidates Hillary Clinton or Bernie Sanders. He didn't say who he'd vote for, but he doesn't like Donald Trump, and he hasn't measured his support for any Republican candidate based on the marijuana issue, he said.

"Just simply saying that a state law permits some conduct doesn't mean it's constitutional," Montgomery said.

Out-of-state smuggling and other problems with Colorado's legalization program, said Montgomery, emphasize the need for a more consistent plan.

The Obama administration has chosen not to sue states directly to overturn pro-pot laws, but a new president could do so, and possibly be victorious in the U.S. Supreme Court because of the Constitution's Supremacy Clause, Montgomery said.

Montgomery's office and the county remain engaged in a lawsuit against a Sun City dispensary, the White Mountain Health Center. The dispensary had been forced to sue after Montgomery advised the county Board of Supervisors to ignore the state's 2010 Medical Marijuana Act and deny the business the right to operate. The county attorney lost that battle in trial court, resulting in the opening of White Mountain in December.

The  lawsuit remains before the state Court of Appeals, and each side is expected to file briefs later this month. But a recent Arizona Supreme Court opinion bodes well for the White Mountain case: In ruling that convicts on probation could use medical marijuana under state law if they qualify for it, the state's highest court deemed it okay that Arizona chose to "part ways with Congress" on marijuana law.

Colorado Attorney General Cynthia Coffman said earlier this year that her state would be in "chaos" if a federal lawsuit against Colorado's recreational-sales program prevailed, because state residents still would be allowed to grow and possess marijuana legally under state law.
KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
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.