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Last Friday, October 19, 2012, Maricopa County Superior Court Judge Michael Gordon heard arguments made by Maricopa County Attorney William Montgomery (himself) and by Deputy Attorney General Charles Grube, for Tom Horne, challenging the viability of the Arizona Medical Marijuana Act. An explanation of how we got to this point can be found in my editorial entitled: The Most Important Medical Marijuana Lawsuit in Recent History?
Judge Gordon, my co-counsel Ezekiel Edwards of the ACLU, and even thechallenging the and me were all well-prepared. Judge Gordon asked each attorney a number of pointed questions, directed at the potential weaknesses and effects of their respective positions. At the conclusion of the hearing, Judge Gordon “took the matter under advisement.” This is a fancy way of saying the he was unwilling to rule on the spot. He stated that he wanted to re-read some of the cases that had been cited by the parties, as allegedly-important and controlling precedent. They may guide or even dictate how the judge will rule. Without divulging the potential weaknesses in White Mountain’s and most of the people reading this article’s position, the gist of the government’s claim is that marijuana, in every manner whatsoever including growing and possession by cardholding patients and caregivers, is absolutely illegal under federal law; and that federal law “trumps” (controls over, for you non-bridge players) state law. They insist that, since marijuana is a Class 1, Controlled Substance, with no “proven” medical uses whatsoever, just like heroin, it cannot even be legally prescribed or recommended for use by doctors or by anyone else.
Naturally, we argued that there are numerous reasons why no court has stopped 16 states and the District of Columbia. Like Arizona, they have partially decriminalized cannabis possession by authorized patients, caregivers, cultivators and various types of legal distributors, pursuant to state law. We cited cases. One of them, Garden Grove v. Superior Court of Orange County, even held that the police had to return marijuana that was unlawfully confiscated by the police from a cardholder during a traffic stop. The United States Supreme Court declined to reconsider the decision of the California Court of Appeal. We reminded Judge Gordon that the feds can still enforce federal law and that the state cannot enforce federal law. We urged Judge Gordon to give due weight to the fact that the AMMA is a voter initiative, rather than merely a bill that was passed by the legislature. Other technical issues were raised.
In response, Mr. Montgomery actually argued that it would have been fine for the voters to totally decriminalize marijuana, rather than just making it available to sick people, who need and benefit from its pain and nausea relieving and other beneficial properties. He claimed that his office could deal with total legalization of cannabis because it didn’t require government participation to aid the possession and use of marijuana by issuing cards, building permits, etc. (The last time we passed a decriminalization statute it was struck down because it required doctors to write “prescriptions” for the harmless weed and that the Controlled Substances Act did not allow prescriptions to be written for Schedule 1 substances.)
Despite the best efforts of the government, I believe that Judge Gordon will rule in November that the AMMA is valid, enforceable and not preempted by federal law. I do not think that Judge Gordon bought into the argument that total legalization of cannabis in Arizona is permissible, but that partial decriminalization is prohibited. Judge Gordon is unlikely to invalidate a state statute, especially one passed by the public, rather than the legislature.
If all goes according to plan, dispensaries will be open by the end of the year. There is at least one in Tucson that has already been constructed. It is just waiting for DHS inspection which can take up to 90 days. Maricopa County and perhaps other defendants will appeal. An appeal will take about one year, but I believe that the AMMA will be enforced, rather than quashed or enjoined during the appeal process. Obviously, this is a good thing for us. I also believe that no appellate court will invalidate the AMMA.
If you have any questions, you can contact me by Googleing Jeffrey S Kaufman Ltd, Scottsdale medical marijuanaor www.jeffkaufmanlaw.com. I will try to respond to all, depending upon the volume.
Remember to always carry your card.
Jeff Kaufman has more than 30 years of experience in Arizona. His practice encompasses the fields of real estate, business, corporate, private offerings and personal injury. You can reach Jeff at Jeff@KaufmanEsq.com or (480) 994-8000.
Jeffrey S. Kaufman, Esq.
Attorney at Law
5725 North Scottsdale Road, Suite 190
Scottsdale, AZ 85250
(480) 994-8129 fax