PHOENIX -- State and county officials cannot refuse to process applications for medical marijuana dispensaries just because the drug remains illegal under federal law, a trial judge ruled today.
In an extensive ruling, Maricopa County Superior Court Judge Michael Gordon rejected arguments by Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery that the 2010 voter-approved Arizona Medical Marijuana Act is illegal and contrary to public policy because the possession and sale of marijuana remain a federal crime.
In his extensive ruling, Gordon pointed out that 18 states and the District of Columbia already have enacted laws permitting some form of legal marijuana use. And the judge said he wasn't about to declare Arizona's own version invalid.
"This court will not rule that Arizona, having sided with the ever-growing minority of states and having limited it to medical use, has violated public policy," he wrote.
Gordon acknowledged that Congress enacted the Controlled Substances Act to combat drug abuse and to the control the legitimate and illegitimate traffic of drugs. That law classifies marijuana as a Schedule 1 drug for which there is no legitimate medical use.
And the judge agreed that the 2010 initiative allowing the medical use of marijuana reflects "a very narrow but different policy choice'' about the drug. But he said the fact that Arizona has a different view of the drug does not illegally undermine the federal law: Federal agents remain free to arrest Arizonans who violate that federal statute.
"No one can argue that the federal government's ability to enforce the Controlled Substances Act is impaired to the slightest degree," Gordon wrote.
In fact, he said, what voters approved here actually could be interpreted to support the goals of Congress in combating drug abuse.
"The Arizona statute requires a physician to review a patient's medical circumstances prior to authorization of its use," he said.
Gordon also said the initiative also gives the state health department "full regulatory authority.'' That agency, in turn, has enacted rules to ensure that those dispensaries which operate within the law.
"The detailed regulations ensure the marijuana is used for medical purposes only,'' the judge wrote, saying the sale and use of the drug by those not authorized remains a state crime.
Most immediately, the decision should pave the way for a dispensary to open in Sun City. But the broad scope of the ruling, unless overturned, provides firm legal grounds for the state going ahead with its plans to license more than 100 such dispensaries around the state.
The 2010 initiative said individuals who have certain medical conditions can seek a recommendation from a doctor to use medical marijuana. The health department reviews those recommendations and, if appropriate, issues an identification card allowing the person to obtain up to 2 1/2 ounces of marijuana every two weeks.
The most recent figures show more than 33,600 applications have been approved.
That law also envisions a network of up to 125 state-licensed dispensaries to grow and sell the drug to cardholders and their caregivers. But state health officials, acting on directions from Gov. Jan Brewer, initially dragged their feet on the whole licensing process until two separate courts rejected their arguments that the law is illegal.
In the interim, cardholders have been able to grow their own drugs.
The state has since licensed a handful of dispensaries. But the owners of White Mountain Health Center ran into a problem: The health department requires that anyone seeking a dispensary permit must provide documentation to the health department that the site is properly zoned.
In this case, Maricopa County officials, acting under Montgomery's advice, refused to provide the necessary letter. The county is involved because Sun City is an unincorporated area.
Dispensary owners sued, asking Gordon to order the county to issue the letter.
Montgomery told the judge he can't do that because it would put the county in the position of helping establish a place for the sale of items that are illegal under federal law. The Attorney General's Office took a similar legal position at an October hearing, with both arguing that public employees are committing a federal crime of aiding and abetting the possession and sale of marijuana in violation of federal law.
Gordon, however, pointed out a conviction under federal law for aiding requires proof the person assists or participates in committing the crime. He said that's not the case with public workers.
"Their specific intent is to perform their administrative tasks,'' the judge wrote.
"They have no interest in whether the dispensary opens, operates, succeeds or fails," Gordon continued, saying the workers "wholly unconnected to and separate from" the people who actually will be selling the drugs." These employees cannot be held accountable for conduct that they anticipate will occur but could care less if it actually does."