ACLU Part of Suit to Force County to Comply with Voter-Approved Referendum Allowing Dispensary
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PHOENIX - A Maricopa County judge today ruled that the voter-approved Arizona Medical Marijuana Act (MMA) is not void under federal law, and ordered the county to take steps towards approving the operation of the White Mountain Health Center, Inc. dispensary.
"This decision upholds the will of Arizona voters when they approved a law to allow patients who suffer from serious medical conditions safe and reliable access to their medicine," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project. "Dispensaries like White Mountain Health Center will fill a crucial need for patients suffering from such illnesses as HIV, cancer, glaucoma, and agitation of Alzheimer's disease who have not responded to other medication," said Edwards.
The American Civil Liberties Union and the ACLU of Arizona joined a lawsuit in September to compel Maricopa County to provide White Mountain Health Center, Inc., with a statement of zoning compliance so that White Mountain can complete its dispensary application to operate in compliance with the Arizona Medical Marijuana Act.
"The state court found that 'no one can argue' that the federal government's ability to enforce its drug laws is impaired to the slightest degree by the Arizona MMA," said ACLU of Arizona Legal Director Daniel Pochoda. "This should end the unprecedented spectacle of Maricopa County Attorney Montgomery and Arizona Attorney General Horne arguing that an Arizona state law passed by the voters is unconstitutional."
Edwards added, "We are gratified that the court understood that the regulation of drugs and medicine is traditionally a power exercised by the states, and the Constitution allows Arizona and the federal government to make different policy choices in these arenas."
The regulations implementing the Arizona Medical Marijuana Act, approved by voters in 2010, require that anyone seeking to open a not-for-profit dispensary must first receive documentation from the local jurisdiction that the proposed location complies with zoning ordinances or that there are no applicable zoning ordinances.
Maricopa County Attorney Bill Montgomery refused to issue this document for the dispensary applicant in Sun City, a retirement community outside of Phoenix, or any other proposed dispensary in Maricopa County. Montgomery claimed the state law was preempted by the federal Controlled Substances Act.
Maricopa County Superior Court Judge Michael Gordon disagreed, "find[ing] that the AMMA, while reflecting a very narrow but different policy choice about medical marijuana, does not undermine the CSA's purposes."
The lawsuit was brought in June by local lawyer Jeffrey S. Kaufman on behalf of White Mountain Health Center, Inc., the only dispensary applicant in Sun City. The ACLU joined Kaufman as co-counsel and handled the legal issues related to preemption, while Kaufman handled all other matters. In addition to Montgomery and Maricopa County, the state Department of Health Services and its director, Will Humble, were defendants in the lawsuit. Arizona, led by Gov. Jan Brewer and Attorney General Tom Horne, also intervened in the lawsuit.
"Arizona has chosen, as is its right, to decriminalize and regulate the medicinal use of marijuana. As the court recognized, federal law does not prevent Arizona voters from decriminalizing conduct that remains criminal under federal law. We hope and expect that Maricopa County will respect the decision of the court, and the voters, and immediately abide by the court's order," Mr. Edwards said.
Edwards noted that last month voters in Massachusetts joined 17 other states and the District of Columbia that have legalized certain medical uses of marijuana. "Patients in Arizona will now be able to join the nearly one million patients nationwide who already use medical marijuana as recommended by their doctors and in accordance with state laws."
In 2011, Gov. Brewer sought to have a federal judge declare the Arizona law preempted on the grounds that it could expose state employees to federal prosecution. Representing all non-government defendants in that case, the ACLU successfully argued that the case should be thrown out for lack of jurisdiction. Specifically, the court held the state had not shown the existence of any imminent or even threatened prosecution of state employees by the federal government.
Other attorneys representing White Mountain include Emma Andersson from the ACLU and Kelly Flood of the ACLU of Arizona.