ACLU Joins Medical Marijuana Suit in Arizona

September 27, 2012 3:10 pm

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PHOENIX — The American Civil Liberties Union and the ACLU of Arizona joined a lawsuit today that seeks to compel Maricopa County to allow a medical marijuana dispensary to operate as required under the Arizona Medical Marijuana Act.

The law, approved by voters in 2010, requires that anyone seeking to open a not-for-profit dispensary must first receive documentation from the local jurisdiction that the proposed location complies with local zoning ordinances or that there are no applicable local zoning ordinances. In this case, Maricopa County Attorney Bill Montgomery has refused to issue this document for a dispensary in Sun City, a retirement community outside of Phoenix, or any other proposed dispensary in Maricopa County. Montgomery claims the law is preempted by the federal Controlled Substances Act.

“Maricopa County is attempting to thwart the will of the people,” said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project. “Voters approved this measure so patients who suffer from serious medical conditions can have safe and reliable access to their medicine. 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 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 will join Kaufman as co-counsel and handle legal issues related to preemption, while Kaufman will handle all other matters. In addition to Montgomery and Maricopa County, the state Department of Health Services and its director, Will Humble, are defendants in the lawsuit.

“Arizona residents were fed up with the irrational denial of needed treatments to persons with debilitating illnesses and voted for a law that addresses the problem in a practical way by regulating dispensaries and caregivers who serve patients,” said Daniel Pochoda, ACLU of Arizona legal director. “Montgomery is doing everything he can to derail those efforts and invalidate a law that received public support.”

Edwards said the White Mountain Health Center dispensary would fill a vital need for patients suffering from such illnesses as HIV, cancer, glaucoma, and agitation of Alzheimer’s disease who have not responded to other medication. Medical marijuana has been found to relieve such symptoms as appetite loss, nausea, and pain.

“Marijuana is still largely criminalized in Arizona,” added Edwards. “However, Arizona has chosen, as is its right, to decriminalize and regulate the medicinal use of marijuana. Federal law does not prevent Arizona voters from decriminalizing conduct that remains criminal under federal law.”

Arizona, led by Gov. Jan Brewer and Attorney General Tom Horne, has intervened in the lawsuit. In 2011, 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, the ACLU successfully argued 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 on the case include Emma Andersson from the ACLU and Kelly Flood of the ACLU of Arizona.

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