Pubdate: Thu, 16 Aug 2012 Source: Arizona Republic (Phoenix, AZ) Copyright: 2012 The Arizona Republic Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html Website: http://www.azcentral.com/arizonarepublic/ Details: http://www.mapinc.org/media/24 MONTGOMERY'S THREATS DO LITTLE Maricopa County Attorney Bill Montgomery, like county attorneys across Arizona, is no fan of the state's medical-marijuana program. He worries that a combination of cash and drugs will attract criminals. He's concerned that state employees implementing the program are at risk of federal prosecution. He warns that the voter-passed initiative conflicts with federal drug laws, which ban the cultivation, sale and use of marijuana. His concerns are well grounded. But that doesn't excuse the saber rattling he engaged in last week. Growing and selling marijuana is illegal, Montgomery said, and neither the Arizona Medical Marijuana Act or the awarding of licenses for dispensaries through a lottery changes that. "Anyone who received their lucky ball by (the Department of Health Services), if they open a dispensary in Maricopa County, they're subject to prosecution," he said at a news conference. "I intend to enforce the law." If he had been warning potential dispensary operators that federal drug agents and prosecutors have targeted stores in other states, that would have been one thing. Potential operators already know that. But he was threatening state prosecution, and that seems an empty threat. It's unlikely any jury would convict a business owner operating under a state license, the possession of which required jumping through multiple and expensive hoops. How could someone operating with state permission be found guilty of violating state law? It just doesn't make sense. "My statement that they are 'subject to prosecution' is not a guarantee of prosecution," Montgomery told The Arizona Republic on Wednesday. "Law enforcement still has to put a case together for us to review and a reasonable likelihood of conviction is still the charging standard." Which, translated into the real world, means state charges are highly unlikely. Federal charges may be a different matter, but Montgomery can't control that. Montgomery's warning made for good TV, but that's all. His more significant contribution comes in a West Valley case, where a potential pot dispensary wants a court to force Maricopa County to give it zoning verification, which is required to apply for a state permit. In that case, Montgomery is trying to insert the issue that federal law pre-empts the state measure. If he's successful, no dispensary will open anywhere. There would be complaints that Montgomery and the courts are overruling the will of the people. Voters, though, cannot pass measures that violate constitutional provisions. Medical-marijuana laws raise issues about federal and state powers. It may be odd for states-right advocates such as Gov. Jan Brewer and Attorney General Tom Horne to now argue that federal law pre-empts a voter-approved state measure, but politics takes odd twists. And it doesn't change the fact that this is a legitimate question. If federal law prevails, then medical marijuana is dead. It's better to achieve that result through a substantive court case than by issuing unreasonable threats of prosecution. Montgomery should know the difference. - --- MAP posted-by: Jay Bergstrom