PHOENIX — A judge will hear arguments Aug. 12 over whether Arizonans will be allowed to vote on whether they want to legalize marijuana for recreational use.
At a hearing Tuesday, Maricopa County Superior Court Judge Jo Lynn Gentry gave backers of the initiative two weeks to respond to charges by foes that the wording of the measure is legally flawed and cannot be placed on the November ballot. Attorney Brett Johnson, who represents challengers, contends the proposal is basically a fraud on voters.
Gentry does not expect this to be a simple question to resolve: She has set aside three hours to give lawyers from both sides to make their case.
More to the point, she does not expect to have the last word in the case. Gentry figures that Aug. 12 hearing — and a decision either that day or shortly thereafter — will give whoever loses the chance to seek review by the Arizona Supreme Court.
And that is virtually certain to happen.
The outcome is likely to turn on whether the justices believe initiative promoters mislead those who already signed the petition and would be misleading voters in November with their claim that the measure, if approved, would regulate marijuana like alcohol.
Hanging in the balance is whether Arizona will follow the lead of states like Colorado and Washington which have allowed anyone 21 and older to purchase and use marijuana products.
Now, marijuana is legally available only to those with certain medical conditions who have a doctor’s recommendation and a state-issued card. The most recent figures from the Arizona Department of Health Services show 97,938 qualifying patients, with another 853 certified as “caregivers” who can grow or obtain marijuana for someone else.
By contrast, there are about 4.8 million Arizonans who would qualify if the measure, tentatively given the designation of Proposition 125, is approved.
All that, however, presumes voters do get a chance to make that choice.
With backers having submitted petitions with 258,699 signatures, the legal burden now is on Johnson, representing challengers, to keep that the issue from getting that far.
Johnson is not arguing that Arizonans have no right to vote on recreational marijuana. And he said it might even be legal had supporters actually crafted what they claim is their goal: to treat marijuana like alcohol, with the same kind of state regulation.
But Johnson is arguing to Gentry that the measure does not do that, saying there are multiple differences between how Arizona law treats those who use alcohol legally and those who would be able to smoke, eat or otherwise use marijuana.
For example, he pointed to language which says an employer who wants to fire a worker who is impaired by marijuana would have to show a worker was “performing any task while impaired by marijuana or a marijuana product that would constitute negligence or professional malpractice.”
“That is not like alcohol,” Johnson said.
And he singled out a provision that pretty much guarantees that the nearly 100 owners of existing medical marijuana dispensaries will get one of only about 150 state licenses that will be initially available to sell recreational marijuana.
There is no such protection under alcohol laws, though state law does limit the number of places where hard liquor can be sold.
“And I think the judge is going to appreciate that,” Johnson said.