Maricopa County Attorney Says Arizona’s Medical Marijuana Law is Unconstitutional

Maricopa County Attorney Says Arizona’s Medical Marijuana Law is Unconstitutional

In a June 27, 2012, press conference Maricopa County Attorney Bill Montgomery said the following about Arizona’s medical marijuana law:

“With respect to one other part of the Court’s ruling in SB 1070, it is instructive for state officials and for those who are advocates of Arizona’s ‘medical’ marijuana act to read it well. Particularly at page 8 of the slip opinion, in section 3 of that opinion, where it mentions specifically and I’m going to quote: ‘Second, state laws are preempted where they conflict with federal law. This includes cases where compliance with both federal and state regulations is a physical impossibility.’ The federal Controlled Substances Act prohibits the possession, use, distribution, transportation, or cultivation of marijuana. Arizona’s ‘medical’ marijuana act is unconstitutional on its face. And with this very clear and most recent analysis of those provisions, there is no reason for state officials to not act responsibly and cease any further implementation of that Act. And consistent with my previous opinion that was issued to the Board of Supervisors with respect to the ability for county employees to participate at all in accepting, processing or issuing permits or applications for zoning in pursuit of a state license for a dispensary or cultivation site on county land, that cannot happen.

 So, to the extent that any state officials need help in researching the impossibility of complying with the ‘Medical’ Marijuana Act in light of the Supremacy Clause of the federal Constitution, I am more than happy to provide them with a copy of our research so they can issue their opinion forthwith. And I am aware that there are state legislators who have asked for an opinion from the Attorney General. And there’s no reason why that opinion can’t issue.

Mr. Montgomery issued his opinion over a year ago advising county employees to take no action to help a dispensary open for business (including issuance of zoning permits or business licenses) because they would be facilitating violations of federal drug laws and would have no immunity.* He has called upon Attorney General Tom Horne several times over the past year to take similar action to protect state employees. In issuing his opinion, Mr. Montgomery referred to the oath he took to uphold the U.S. Constitution as well as the laws and constitution of the state of Arizona. Our Governor, Attorney General, and legislators all took the same oath of office.

Arizona state officials received two separate warnings (May 2, 2011 and February 16, 2012) from the Department of Justice, making it clear that (1) Arizona’s scheme for cultivation and sale of marijuana will not be tolerated, and that (2) state employees, landlords, financiers and others who facilitate the activities authorized under the state marijuana law have no immunity from federal prosecution. State legislators have asked for an opinion from Tom Horne as to whether our marijuana law conflicts with federal law and whether state employees could be held personally liable for their actions under the “medical” marijuana law. The legislators (and we) are statutorily entitled to an answer. If Mr. Horne is unwilling or unable to answer the legislators’ request, then he needs to turn over the matter to independent counsel. Now.

The outrage being expressed by many in this country, and especially in Arizona, over the failure of the federal government to enforce federal immigration laws is understandable. The outrage expressed by Arizona state officials over the federal government’s failure to enforce federal immigration laws while blatantly disregarding the federal government’s demands that Arizona comply with federal drug laws is disingenuous.

In responsibly heeding the warnings of the U.S. Attorneys for their states, Washington Governor Gregoire, Delaware Governor Markell and Rhode Island Governor Chafee all expressed concern about the consequences to their state residents if illegal marijuana laws were allowed to be implemented. Attorney General Horne does not have the option of staying neutral and leaving Arizonans vulnerable to arrests, seizures of property and prosecutions.

Our “health” department intends to start issuing dispensary licenses on August 7 in blatant disregard of clear federal law and two separate warnings from the Department of Justice. Pro-pot bloggers are predicting that state officials will call out the National Guard when the federal government comes after dispensaries. As ridiculous as that sounds, you can see why they might believe it. And, you can bet they’ll be screaming at state officials to do it.

*There will be more on this subject soon — A potential dispensary owner has sued Maricopa County for refusing to certify its registration certificate.  Read  “An applicant for a medical-marijuana dispensary and cultivation site has sued Maricopa County.”

By | 2012-06-30T06:04:20+00:00 June 29th, 2012|Stories & Articles|1 Comment

About the Author:

The author of this article is Richard Keyt, an Arizona business law attorney who is the creator of this Arizona medical marijuana law website. Connect with Richard at 480-664-7478 or on Google+

One Comment

  1. Walt June 30, 2012 at 7:56 am

    Why not simply delete that sentence? If that sentence held true for all issues, the Sates would have no rights.

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