Attorney General Tom Horne said Monday that prosecutors are going to ask a state court to declare that the planned medical marijuana dispensaries are illegal and cannot be opened.
Horne told Capitol Media Services that federal law prohibits anyone from selling marijuana. Yet the state is planning to issue licenses that authorize dispensary operators to do just that.
"A state law cannot authorize a violation of federal law,'' he said.
Horne said despite his conclusion that dispensaries cannot legally operate, he is not prohibiting state Health Director Will Humble from proceeding with today's planned lottery which will decide who gets the limited number of licenses that are available under the 2010 voter-approved Arizona Medical Marijuana Act.
But Horne, in a formal legal opinion, pointed out that the certificates that will be issued today simply give winners of the lottery permission to proceed with setting up a dispensary.
The health department still must give final approval. Humble said that requires final review of the operation, including security and inventory control.
Horne said that, given the legal ruling he is seeking, any of the lottery winners should hold off making further investments until the legal issues are resolved or risk finding their operations declared illegal.
The attorney general said his legal opinion -- and desire for a court ruling on the legality of dispensaries -- does not affect the nearly 30,000 Arizonans who have cards from the state entitling them to obtain up to 2 1/2 ounces of marijuana without facing the possibility of being prosecuted under state law.
He said all those cards do is identify legal medical marijuana users to state and local police. Horne said they do not purport to "authorize'' anyone to possess the drug in violation of federal law.
Ryan Hurley, an attorney who represents nearly two dozen organizations that want to operate dispensaries, said Horne is legally off base.
Hurley acknowledged there are some court rulings from other states which say that federal law trumps the ability to license marijuana dispensaries. But Hurley said there are other cases to the contrary.
For example, he said a judge rejected a bid to shut down licensing of marijuana dispensaries in San Diego based on the same question of federal preemption. Hurley said the court ruled that the state was not usurping federal authority, as nothing in the California medical marijuana program precludes federal agents from charging dispensary operators with violating federal laws.
Gov. Jan Brewer does not intend to intercede, at least not at this point.
Press aide Matthew Benson said his boss has always been concerned about the conflict between state and federal law.
But he also pointed out that a federal judge threw out her request to declare the state law preempted. And a state judge ruled that Brewer is legally required to enact the law as approved by voters.
"Short of a new court order or some indication from the federal government that they intend to prosecute state employees (for issuing licenses), the state's going to proceed with the implementation,'' Benson said.
Horne said it will probably not be necessary for him to file a new lawsuit to get the ruling he wants.
In June White Mountain Health Center sued Maricopa County after county officials would not act on its request for a registration certificate to operate a medical marijuana dispensary in the unincorporated area of Sun City.
Without such a certificate, state health officials will not issue a dispensary license. But county supervisors, acting under advice from County Attorney Bill Montgomery, refused to let their employees take any action on any permit that would involve violation of federal laws.
Horne said the fastest way to get the issue resolved would be to work with Montgomery to expedite that case, getting the judge to rule on whether Maricopa County -- and, by extension, the state -- can legally refuse to comply with the requirement of the voter-approved law to process dispensary applications.
Jeffrey Kaufman, the attorney representing the health center, said Horne's maneuver is not surprising.
"It's just all politics,'' he said. Kaufman said it is no secret that Horne, along with most politicians in the state, never liked the voter approved law.
But Kaufman said he doubts that any judge is going to give Horne the ruling he wants.
Horne acknowledged those two prior rulings against the state when it balked at licensing marijuana dispensaries.
Both came last year after Brewer, acting on Horne's advice, directed Humble not to process any applications for marijuana dispensaries.
The governor said her main concern was that state employees could end up being prosecuted under the federal Controlled Substances Act because they were "facilitating'' others into being able to sell marijuana. So she asked U.S. District Court Judge Susan Bolton for a ruling.
In January, Bolton threw the case out of court.
The judge said the only way she might be able to intervene is if some Arizona employee actually were charged with violating federal law. She said that hasn't occurred here or in any other state with similar laws.
Just days later, Maricopa County Superior Court Judge Richard Gama ordered Brewer to fully implement the 2010 voter-approved law, ruling she had acted illegally in holding it up.
Gama rejected the governor's argument that she has the discretion to delay enactment of parts of the law while she was asking Bolton to decide the liability of state workers under federal drug laws.
"Defendants cite no authority for this proposition, and the court has found none," Gama wrote in his ruling.
"The voters intended the Arizona Medical Marijuana be implemented within 120 days," he continued. "This has not been done."
The case before Gama, however, did not address the issue of federal preemption that Horne now hopes to raise in court.
No date has been set for a trial in the White Mountain case. But the judge in that case did direct that state health officials process the health center's dispensary application while the case is being heard even though the operators were unable to get the required Maricopa County certification.