Ariz. court denies request to stay marijuana order

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By Mike Gertzman By Mike Gertzman

PHOENIX (AP) -- Arizona appellate judges refused Thursday to allow Maricopa County to deny zoning clearance for a medical marijuana dispensary after questioning the county's claim that its employees could face federal prosecution.

Lawyers for the county then said it would not file another appeal of a trial judge's order to provide the clearance.

However, County Attorney Bill Montgomery said he will press ahead with a planned appeal involving the big-picture issue of whether federal drug laws stand in the way of implementing Arizona's voter-approved medical marijuana initiative.

"The ruling denying the stay ignores the present reality of the obvious conflict between state and federal law," Montgomery said.

The brief ruling by a three-judge Court of Appeals panel only dealt with the zoning issue, and it did not explain the decision made after the judges questioned whether county workers truly face federal prosecution if clearance is approved and the shop opens.

"This whole notion of criminal liability is somewhat mind-boggling," Judge Michael Brown said during a hearing.

Maricopa County has jurisdiction over zoning involved in the move by White Mountain Health Center Inc. to open the dispensary in unincorporated Sun City.

Superior Court Judge Michael Gordon's Dec. 4 ruling said federal drug law doesn't block the state's medical marijuana statute, and the county must provide the zoning clearance.

Deputy County Attorney Tom Liddy said county employees fear they could be prosecuted for aiding and abetting marijuana trafficking that is illegal under federal drug laws.

A senior zoning official, who was not identified by name during the hearing, does not want to break federal law but wants to obey state law, Liddy said.

"This is a very novel place that she's been put in," Liddy said. "She's between a rock and a hard place."

ACLU of Arizona attorney Kelly Flood said no government employees have been prosecuted for helping administer medical marijuana programs.

Some U.S. attorneys in various states have said state employees could be prosecuted, but none have actually been charged, Flood said, noting it would be difficult to prove criminal intent.

Without actual prosecutions, letters issued by U.S. attorneys amount to "saber rattling," Liddy acknowledged.

Numerous other local governments in Arizona, including municipalities in Maricopa County, have provided clearances for dispensaries.

After the Court of Appeals ruling, Liddy said the county would comply by a Monday deadline set by the judge.

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