Tom Horne: Arizona Medical Marijuana Act Preempted by Federal Law, in Part; Cardholders OK, Dispensaries Could be Nixed by Court

See also: Medical Marijuana Dispensary Lottery Coming Tuesday, and Will Be Streamed Live Online

Arizona should not authorize medical-marijuana dispensaries as voters intended because they would violate federal law, says state Attorney General Tom Horne.

But the state's 2010 medical-marijuana law isn't preempted by federal law in decriminalizing pot possession by cardholders and caregivers, Horne says.

Today's legal advice from the state's top cop came in the form of an official opinion crafted by lawyers in Horne's office, following requests for the opinion by law enforcement officials.

Horne says the analysis was conducted "without regard to policy considerations as to medical marijuana as an issue, and without regard to my views."

Tomorrow's lottery for dispensary applicants will go on as planned, Horne wrote in a news release, because the lottery selection only grants preliminary approval.

The state Department of Health Services must inspect a planned dispensary's facility and issue final approval before the shop can be opened. Horne advises prospective dispensary operators to hold off on their plans until a court ruling decides the matter -- something he expects to happen soon.

"A court may or may not agree with this opinion," Horne wrote. "We expect that there will be a motion for accelerated resolution of this issue in a pending court case."

Horne's likely talking about the case brought by White Mountain Health Center, which wants to open a dispensary in Sun City, against Maricopa County. The county, based on advice from County Attorney Bill Montgomery, decided to "opt out" of the state's medical-marijuana law and refuses to acknowledge White Mountain's request for zoning information. State rules require that a dispensary applicant submit some zoning info, so the company sued.

Last month, Superior Court Judge Michael Gordon issued an order suspending the state's rule on requiring zoning info. That made it seem as though Sun City would get a dispensary even though no zoning criteria exists in the county for dispensaries.

County Supervisor Mary Rose Wilcox told New Times that Gordon's ruling could result in the five-member Board of Supervisors reviewing their decision to opt out. But County Attorney Bill Montgomery says he believes the White Mountain case could be the "dam" that blocks up the whole pot program. Look for Montgomery to file a motion soon in that case based on Horne's opinion.

Theoretically, Governor Jan Brewer could take Horne's opinion to heart and stop the state DHS from issuing any dispensary approvals, or even stop tomorrow's lottery. We're awaiting a response from Brewer's office on Horne's opinion. However, Brewer has said recently that she will move forward with the program.

For cardholders and most caregivers, Horne's opinion means that if pot users can obtain their marijuana somehow, they're still off the hook for state prosecution thanks to the state law.

However, the state law is preempted by federal law where it authorizes cardholders to do something, such as grow marijuana "or otherwise violate federal law." In other words, caregivers growing the statutory maximum of 12 plants for each of five patients aren't in the clear under state law, because their actions are preempted by state law, according to Horne.

Horne's opinion isn't entirely clear on whether the decriminalization aspect of the state law allows cardholders to possess live plants as well as dried pot. Since the DEA isn't likely to go after a single pot grower, and local and state police can't bust people on state law for possessing plants, it would appear that Horne's opinion is good news for small growers, too.

Despite Horne's denial that his opinion is some kind of political statement, don't think that politics isn't at play here. Horne was pressured into making his opinion by anti-pot forces including Yavapai County officials who misrepresented the Arizona U.S. Attorney's opinion on dispensaries in a recent letter to the governor.

In Colorado, which has run a program of state-authorized, medical-marijuana dispensaries for a few years with no problems, Attorney General John Suthers has not received requests for any opinions related to that state's medical-pot program, nor has he issued any opinions, says his spokeswoman, Carolyn Tyler.

California has seen a crackdown by the feds on its dispensaries -- which aren't authorized by the state, as they are in Colorado.

Here in Arizona, elected officials and police don't give as much credence to states' rights (except in the immigration debate) and believe people should be bowing to their federal masters.

Arizona's dispensaries, authorized under the voter-approved 2010 law, have already been delayed more than a year because of Governor Brewer's whim. After being slapped down in court first by a federal judge, then by a Maricopa County Superior Court judge, Brewer was ordered to implement the program as voters intended. But the key issue of federal preemption wasn't decided in either of those cases.

Now, the question of whether Arizona gets dispensaries like Colorado is apparently in the hands of state judge who just doesn't know it yet.

Click here for a copy of Horne's opinion.

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.