Gov. Jan Brewer has signed a waiver which will allow Attorney General Tom Horne to try to close down the marijuana dispensaries that her state health department is in the process of licensing.
The move comes in the wake of Horne’s formal legal opinion that the state cannot legally permit anyone to sell marijuana, even only to those who have a doctor’s recommendation to use the drug. Horne said as long as the drug remains illegal under federal law, the state is powerless to authorize anything to the contrary.
But the governor said Thursday she does not intend to block Health Director Will Humble from continuing the process of issuing state permits. And Humble, who conducted a lottery Tuesday to see who gets to serve each of the 126 health districts in the state, said the first of those shops could be open by the end of the month.
The issue arises because the Attorney General’s Office represents all state agencies. That means it would be up to Horne’s lawyers to defend the Department of Health Services in any legal proceeding challenging its actions.
“I gave him a waiver and put kind of a wall between Mr. Horne and myself so that he could represent this position and he could still represent me with other attorneys on the other side,” Brewer said.
Horne said this arrangement will allow one of his deputies to continue to provide legal advice to Humble even as he personally pursues a court order declaring the dispensaries preempted by federal law.
But he insisted this won’t create a situation where he will be facing off in court against one of his deputies.
Horne said he intends to legally intervene in a legal fight between Maricopa County and the owner of a clinic that wants to open a marijuana dispensary in Sun City. That has been thwarted because the board of supervisors, acting under advice of County Attorney Bill Montgomery, refused to provide the necessary zoning certification.
The attorney general figures that could become a test case for the larger issue of whether government agencies can process requests to do something that remains a crime under federal law. By extension, that would require a judge to decide if federal law trumps the provisions of the 2010 voter-approved Arizona Medical Marijuana Act which specifically authorizes people with certain ailments to possess the drug and those licensed by the state to sell it to them.
“The health department isn’t taking a position,” Horne said, meaning that his office won’t have someone representing the agency at the hearing to defend the legality of the dispensaries even as he works to shut them down.
And he said the fact that the health department is going ahead with the licensing of the dispensaries does not mean it believes operation of the outlets is legal.
“They’re proceeding right now because that’s their duty,” he said.
Brewer pointed out that she had some concerns about the legality of the dispensaries and specifically whether state health workers who process the licenses could be charged with violating the federal Controlled Substances Act for “facilitating” others to obtain the drug. She even had ordered Humble not to process the applications.
“I took it to court and I was ruled against, (with a judge) saying that I had to implement the law,” Brewer recalled Thursday. “So we moved forward under the direction of the court.”
But the governor said Horne and Montgomery remain free to try to shut down the dispensaries anyway.
“If they believe they have a reason to think they can get that overturned, they have that right and privilege to do that,” Brewer said. “But in the meantime we have and will continue to move forward until we hear differently.”
The fact that Horne is joining forces with Montgomery in the Sun City case does not mean he shares all of the county attorney’s views about how far Arizona can go with its medical marijuana law.
Montgomery said he believes all portions of the law are preempted, including the ability of the health department to issue cards entitling those with a doctor’s recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. The county attorney said he hopes to get a ruling which would allow him to advise police officers that they are free to arrest those who possess marijuana even if they have a state-issued card.
Horne, in his formal legal opinion, said he does not believe that the Controlled Substances Act prevents the state from issuing cards that identify people as medical marijuana users who are exempt from arrest under state drug laws.
“It is beyond Congress’ power to dictate the parameters of state criminal conduct,” he wrote.
Horne said courts are not bound by formal opinions of the attorney general. “But they do treat them with respect,” he said.