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.
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MAP posted-by: Jay Bergstrom