Without comment, the high court denied a petition by County Attorney Bill Montgomery’s office to review a December state Court of Appeals ruling in White Mountain Health v. Maricopa County/Montgomery. That ends the state-level battle against the law.
“We’re pleased that the Arizona Supreme Court is not going to disrupt the Court of Appeals’ opinion, and we hope the county will stop trying to prevent seriously ill Arizonans from accessing medicine that eases their suffering,” said Emma Andersson, a staff attorney with the ACLU Criminal Law Reform Project.
The Republican county attorney has opposed the Medical Marijuana Act since voters approved it narrowly seven years ago. In 2012, he advised the county Board of Supervisors to deny White Mountain Health the zoning approval it needed to open a dispensary in Sun City, an unincorporated town on county land.
White Mountain sued the county — a move that Montgomery and former state Attorney General Tom Horne had counted on. Montgomery told the Phoenix New Times at the time that he hoped the lawsuit would be the “dam” that blocked the law from taking effect.
In December 2012, Superior Court Judge Michael Gordon ruled against Montgomery, calling his efforts a “transparent attempt” to stymie the law.
The ruling cleared the way for dispensaries to open in Arizona, and now, more than 100 dispensaries — including White Mountain’s — operate across the state. The medical-marijuana program boasts more than 120,000 registered patients.
Undeterred, Montgomery and Horne pursued the White Mountain case to the state Court of Appeals. Another of the state’s most vocal prohibitionists, Yavapai County Attorney Sheila Polk, filed an amicus brief with the court last year in an attempt to help shoot down the law.
That effort failed in December 2016. The appeals court rejected Montgomery’s argument in a 3-0 decision, which was based on a 2015 ruling by the state Supreme Court that the state law did not conflict with federal law. Montgomery vowed quickly to take the issue to the state Supreme Court.
“That the Arizona Medical Marijuana Act provides an affirmative, state authorized program to directly engage in conduct prohibited by the Federal Controlled Substances Act cannot be denied,” Montgomery told New Times last year. “To protect our system of federalism, it requires the willingness for courts to act where a State, whether by initiative or legislative action, runs afoul of Congressional action upheld by the United States Supreme Court. Failure to do so undermines our foundational principle of the rule of law.”
However, Montgomery found himself fighting the law by himself after the appeals-court ruling.
The new state Attorney General, Mark Brnovich, who beat Horne in the 2014 Republican primary election, decided not to join Montgomery’s dogged quest to kill Arizona’s medical-marijuana program.
It’s unclear whether Montgomery will try to take the case to the U.S. Ninth Circuit Court of Appeals now that Arizona’s top court has spurned him.
Montgomery did not respond to a request for comment on Wednesday morning.
“We are hopeful that this is the end of a long and tortured story, but we’ll find out,” said Steve White, one of White Mountain’s attorneys who also operates dispensaries himself. “The resources expended on the taxpayer’s dime between the county and the state and the eventual attorneys’ fees [to be recovered by White Mountain and the ACLU] probably approaches $1 million.”
White Mountain would have had to spend $300,000-400,000 on the case itself, “but for the ACLU’s generosity,” he said.
White noted that both Polk and Montgomery have agreed in public settings that the medical-marijuana law does help some patients.
“They are trying to undo this after they admit [that] is scary,” he said.
News from the state Supreme Court this week hasn’t been entirely friendly to medical-marijuana patients.
Also on Tuesday, the high court turned down an appeal by cannabis advocates to lift restrictions on post-traumatic stress disorder patients who want to obtain Arizona medical-marijuana cards.
Will Humble, former state Department of Health Services director, created a rule in 2014 that grants PTSD patients the right to use cannabis under state law. But the rule requires those patients to first show documented proof that they’ve tried “conventional treatment” before obtaining a card — something that isn’t required of patients claiming chronic pain, cancer, or other ailments that qualify them for the state program.