Bill Montgomery Could Rule on Marijuana Extracts If Appointed to Supreme Court

Maricopa County Attorney Bill Montgomery, an anti-pot crusader, is probably not going to participate in a crucial upcoming pot decision if he lands a seat on the Arizona Supreme Court.
Maricopa County Attorney Bill Montgomery, an anti-pot crusader, is probably not going to participate in a crucial upcoming pot decision if he lands a seat on the Arizona Supreme Court. Gage Skidmore/Flickr
[UPDATE: Montgomery's name didn't appear on a list of finalists for the justice job on March 1, meaning he missed his shot this time. But Chief Justice Scott Bales announced in March that he would retire in July, which could give the county attorney another chance at the bench this summer.]

From his perch as one of the most powerful county prosecutors in the nation, Maricopa County Attorney Bill Montgomery is an anti-marijuana crusader.

Now, Montgomery is vying for a seat on the Arizona Supreme Court at the same time the court is scheduled to deliver a ruling on the legality of medical cannabis extracts.

The bad news for patients and cannabis business owners is the possibility that, if appointed, he could participate in the crucial upcoming decision.

The county attorney has applied for the seat held by Justice John Pelander, who is retiring on March 1.

According to a Supreme Court spokesperson, Chief Justice Scott Bales intends to have Pelander hear the cases that already have been accepted for the court's review, even after Pelander officially steps down.

Oral arguments in the extracts case, State of Arizona v. Rodney Christopher Jones, are scheduled for March 19. Depending on the pace of the appointment process, Governor Doug Ducey could appoint a new justice to the seat by mid-March.

Applicants for a seat on the Arizona Supreme Court are subject to the review of the Commission on Appellate Court Appointments. The panel then sends a list of candidates to the governor's desk.

Montgomery recently advanced to the commission's interview phase along with 10 other applicants for Pelander's seat.

There are two possibilities for the Jones case, according to Supreme Court spokesperson Aaron Nash: Bales could call Pelander back to the bench next month to hear the case and participate in the decision, or the newly appointed justice could join the Jones decision because of his or her interest in the matter.

“If a new person comes on in time and says, 'I really want to sit on that case,' then they’d take a look at it that way," Nash said.

Either way, the decision will ultimately fall to the chief justice. If Montgomery gets appointed to the Supreme Court and expresses his interest in sitting on the Jones case in lieu of Pelander, he could raise the matter with Bales, according to Nash.

"Probably within a week’s time, he could get up to speed on the briefs and preparation that’s gone into the case to this point," Nash said.

However, as of right now, the plan is for Pelander to finish the cases that have been accepted for review, Nash said. It's not unusual for the chief justice to issue an order calling a former justice back to the bench – retired justices typically return to hear cases when a sitting justice is unavailable, according to Nash.

A spokesperson for Montgomery did not respond to a request for comment.

The extracts case before the Supreme Court is part of the ongoing appeal by defendant Rodney Jones, a card-holding medical marijuana patient who was arrested in Yavapai County in 2013 and later imprisoned for carrying less than a gram of hashish.

In a bombshell decision last summer, the Arizona Court of Appeals affirmed Jones' conviction and ruled that patients in possession of marijuana extracts aren't protected under the 2010 Arizona Medical Marijuana Act.

The lower court's ruling has created uncertainty for professionals in the medical-marijuana industry. Extracts may disappear from dispensaries if the Arizona Supreme Court upholds the decision. Patients who rely on products made from extracts to treat ailments are anxious, too.

The Supreme Court decision hinges on the state's definition of medical marijuana and the vague legality of products known as "hashish," made from the resin extracted from the cannabis plant.

Older criminal statues define the resin extracted from cannabis as a narcotic, whereas the AMMA defines marijuana as the "dried flowers of the marijuana plant, and any mixture or preparation thereof," excluding "the seeds, stalks and roots of the plant."

A 2-1 majority of the Arizona Court of Appeals found that the AMMA is "silent" on extracts.

Along with Yavapai County Attorney Sheila Polk, Montgomery's office has sought to criminalize the use of extracts. The Arizona Prosecuting Attorneys’ Advisory Council – an association of prosecutors chaired by Polk that includes Montgomery – filed an amicus curie brief in the Jones case asking the Supreme Court to uphold the ruling of the appeals court.

A 2013 lawsuit in Maricopa County Superior Court pitted the American Civil Liberties Union against Montgomery because of his prohibitionist stance on extracts. The ACLU argued that the threat of criminal prosecution by Montgomery and other law enforcement officials caused the parents of a 5-year-old boy to abandon the effective treatment of the child's seizures using CBD oil derived from extracts.

In that case, Judge Katherine Cooper ruled in favor of the boy's parents and the ACLU. Extracts qualify as a legal "preparation" of marijuana, Cooper wrote in a 2014 decision that said the products fall under the purview of the AMMA.

The Arizona Supreme Court's upcoming decision has the potential to put an end to the conflicting rulings and clarify the law for the entire state.

Whether Montgomery will make his voice heard in the case as a justice on the high court or a member of the prosecuting attorneys' council remains to be seen. 
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Joseph Flaherty is a staff writer at New Times. Originally from Wisconsin, he is a graduate of Middlebury College and Columbia University’s Graduate School of Journalism.
Contact: Joseph Flaherty