Bill Montgomery and Sheila Polk Probed Whether Prop 203 was Constitutional

Back in December, medical marijuana foes Bill Montgomery and Sheila Polk, county attorneys for Maricopa and Yavapai, respectively, quietly explored whether or not Proposition 203 could be declared unconstitutional.

An e-mail sent to the Arizona Department of Health Services on December 6, signed by both Montgomery and Polk, implies that the anti-pot crusaders thought they might have found an angle to defeat the law the voters had recently approved.

A review of the Arizona Medical Marijuana Act turned up a "potential issue," they wrote. "We are concerned that the Act may violate" the Arizona Constitution.

"Concerned" was an interesting word choice for the prosecutors. No doubt, "excited" would have been more accurate.

Montgomery and Polk had fixated on article IX, Section 23 of the state constitution, which says that voter-approved initiatives that cost the state money must be provide for an immediate source of income to offset the expense.

The prosecutors asked DHS to calcuate how much money the state would be spending before a revenue stream from the medical pot program reimbursed the treasury. As you can read in the letter and DHS response, linked here in Word format, the answer is about $1.1 million.

That would appear to mean the initiative is unconstitutional. However, such a narrow interpretation would have to ignore the fact that Arizona plans on making millions of dollars in the next three years from all the fees it plans to collect from medical pot patients and dispensaries.

Using conservative estimates, the state Joint Legislative Budget Committee determined before November's election that in fiscal years 2012 and 2013, the state would be taking in about twice what it spent on the medical marijuana program.

Polk, one of Proposition 203's most vocal opponents, and Montgomery apparently decided against moving against the new law by using a legal technicality. (Maybe they had visions of tens of thousands of pissed-off voters banging on their doors.) Polk didn't return a call to New Times about the correspondence.

Jerry Cobb, Montgomery's spokesman, tells New Times that Montgomery has no intention of pursuing the issue, and that he didn't want to elaborate further.

Medical marijuana wins again.