Court: Arizona medical marijuana law legal
PHOENIX — Arizona's two-year-old medical marijuana law is legal and is not pre-empted by federal law, a trial judge ruled Tuesday.
In an extensive ruling, Maricopa County Superior Court Judge Michael Gordon rejected arguments by Arizona Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery that the voter-approved Arizona Medical Marijuana Act is contrary to public policy and therefore void because the possession and sale of marijuana remain a federal crime.
In his decision, Gordon pointed out that 18 states and the District of Columbia already have enacted laws permitting some form of legal marijuana use. The judge said he wasn't about to declare Arizona's own version invalid.
“This court will not rule that Arizona, having sided with the ever-growing minority of states and having limited it to medical use, has violated public policy,'' he wrote.
Most immediately, the decision should pave the way for a dispensary to get the paperwork it needs to open in Sun City. But the broad scope of the ruling, unless overturned, provides firm legal grounds for the state's going ahead with its plans to license more than 100 dispensaries around Arizona.
Both Horne and Montgomery vow to appeal.
Gordon acknowledged that Congress enacted the Controlled Substances Act to combat drug abuse and to the control the legitimate and illegitimate traffic of drugs. That law classifies marijuana as a Schedule 1 drug for which there is no legitimate medical use.
And the judge agreed that the 2010 initiative allowing the medical use of marijuana reflects “a very narrow but different policy choice'' about the drug. But he said the fact that Arizona has a different view of the drug does not conflict with or illegally undermine the federal law: Federal agents remain free to arrest Arizonans who violate that federal statute.
Horne said that misses the point.
He said Arizona could decriminalize the possession of marijuana entirely, similar to what voters just approved in Washington state and Colorado. That would leave it up to federal agents to decide if they want to charge anyone with violating the Controlled Substances Act.
In this case, though, Horne said the state is actually authorizing the sale of marijuana.
“A state cannot authorize what the federal government prohibits,'' he said. In fact, Horne pointed out that the majority of Oregon Supreme Court, confronting the exact same question last year, found that state's medical marijuana statutes pre-empted by federal law.
Gordon acknowledged that ruling. But he said he sees no conflict and said what voters approved in Arizona actually could be interpreted to support the goals of Congress in combating drug abuse.
“The Arizona statute requires a physician to review a patient's medical circumstances prior to authorization of its use,'' he said. Those without a card remain subject to arrest under state law.
Gordon said the initiative also gives the state health department “full regulatory authority.'' That agency, in turn, has enacted rules to ensure that those dispensaries operate within the law.
