Judge hears arguments on Arizona marijuana law

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By Jennifer Thomas By Jennifer Thomas

PHOENIX (AP) -- Lawyers for Arizona and the state's most populous county argued in court Friday that federal drug laws pre-empt Arizona's voter-approved medical marijuana law.

Meanwhile attorneys for the American Civil Liberties Union and its Arizona affiliate pushed for full implementation of the law passed in 2010, saying the state is allowed to make policy decisions on medical marijuana.

After a nearly two-hour hearing in northeast Phoenix, Maricopa County Superior Court Judge Michael Gordon declined to issue an expedited ruling.

"This is an important decision. I don't want to pull the trigger too quickly," Gordon said. "I will do my best to get something out timely. I won't give you a date. I have a lot of work to do."

The case focuses heavily on the legal argument called pre-emption - an issue that has been around since the Founding Fathers declared that the laws of the United States "shall be the supreme law of the land."

The Obama administration's reliance on the pre-emption argument in the Arizona case marks the latest chapter in its use of this legal tool. Within months of taking office, the Obama White House directed department heads to undertake pre-emption of state law only with full consideration of the legitimate prerogatives of the states.

The 2009 directive was aimed at reversing Bush administration policy that had aggressively employed pre-emption in an effort to undermine a wide range of state health, safety and environmental laws.

Friday's hearing stemmed from a company's lawsuit challenging Maricopa County's refusal to provide zoning clearances for a medical marijuana dispensary in Sun City.

Arizona is one of 17 states to approve the use of marijuana to treat certain medical conditions such as cancer, chronic pain and muscle spasms.

The Arizona Attorney General's Office and Maricopa County Attorney's Office claim that possession, distribution and cultivation of marijuana are all forbidden by federal law, and state authorization of these activities is pre-empted.

"There's no such thing as medical marijuana under the (federal) Controlled Substances Act. It's an oxymoron," County Attorney Bill Montgomery said. "There is no safe harbor."

State health officials can license up to 126 dispensaries throughout designated areas and more than 32,000 Arizonans have permission to use medical marijuana.

Thus far, Arizona health officials have issued 37 dispensary-registration certificates. But none has completed the necessary steps to open.

Montgomery told the judge that county employees could face prosecution for aiding and abetting drug crimes if the dispensaries open.

Ezekiel Edwards, director of the ACLU's criminal-law reform project, called that a "scare factor" and said county and county officials "aren't at risk for prosecution."

"Arizona has the right to de-criminalize some kind of marijuana activity, to de-criminalize it for a narrow subset of people," Edwards said.

The White Mountain Health Center of Sun City sued the county after it rejected the facility's registration certificate, which is part of the state requirement to become a medical-marijuana dispensary applicant.

Montgomery is using the Sun City dispensary case as a vehicle to test the federal pre-emption argument. That dispensary is located in an unincorporated area and requires county-zoning approval before it can seek other permits from the state.

Montgomery and Arizona Attorney General Tom Horne also have asked Gordon to dismiss White Mountain's lawsuit on grounds that Arizona's medical marijuana law is illegal.