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Lawsuit Challenges Arizona Marijuana Ballot Initiative

(Photo by Matthew Casey - KJZZ)
Medical marijuana cures in a Phoenix grow facility.

Foes of legalizing marijuana for recreational use in Arizona are trying to block voters from getting their say on the measure.

In a lawsuit filed Monday, challengers say the 38-page initiative is legally flawed, to the point where it would be illegal to put the question on the November ballot.

It specifically says the legally required initiative summary fails to tell those who signed the petitions all the different things that the measure, if approved, would do. And that, according to the lawsuit, means it is "so misleading voters as to cause a fraud on the electorate.''

Maricopa County Attorney Bill Montgomery, a foe of the measure and one of the plaintiffs in the lawsuit, conceded that Arizona law allows initiative organizers just 100 words for a summary. Arizona courts have ruled that not every single provision of a measure needs to be detailed in those 100 words.

Montgomery said he still believes this description is so flawed as to preclude it from going to voters.

"If your summary can't fairly encompass everything you've thrown into an initiative, it's probably your first indication that your initiative is not going to meet constitutional and statutory muster,'' he said.

The lawsuit also claims that some of what the initiative seeks to do is inherently unconstitutional.

Montgomery specifically cited a provision that would give first preference to the owners of existing medical marijuana dispensaries for the limited number of legal pot shops that the law would initially set up.

"You can't pass a law that gives special advantages to just a particular corporation or group or individuals,'' he said, saying it runs afoul of the Gift Clause provision of the Arizona Constitution. Montgomery noted that the measure is being pushed and financed in part by those who already have medical marijuana dispensaries.

"I think they got greedy in that regard,'' he said.

The legal filing drew an angry reaction from initiative organizers.

"Our opponents have demonstrated that they are willing to do and say just about anything to maintain the failed policy of marijuana prohibition,'' said campaign chairman J.P. Holyoak in a prepared statement.

"This lawsuit is simply a desperate attempt to deprive Arizona voters of the right to vote on this ballot question.''

A spokesman for the pro-legalization campaign said Monday there would be no response to the specific legal issues raised in the lawsuit until the group's attorneys have more time to study it. A hearing is set for July 19 in Maricopa County Superior Court.

In 2010 Arizona voters agreed to allow those with certain medical conditions and a doctor's recommendation to obtain up to 2 1/2 ounces of the drug every two weeks.

This measure would allow any adult to have up to an ounce of the drug for recreational use.Individuals could obtain the marijuana from one of what would initially be about 150 shops or they could grow their own.

Questions about the adequacy of the summary aside, the lawsuit contends the initiative itself is so poorly written as to make it unacceptable to go to voters.

For example, it says the ballot measure allows employers to ban "possession or consumption of marijuana ... in the workplace.'' And it permits companies to enact policies "restricting'' marijuana use by employees.

Attorney Brett Johnson, who represents the coalition of initiative opponents, said the initiative makes it difficult for an employer to actually prove a worker is impaired, the standard for taking action against the employee. And he said there are no exceptions for companies that employ first responders or teachers, "which means that in most instances, an employer would not be able to take action against those categories of employees until the employee first actually commits negligence of professional malpractice, despite actually being impaired.

Other changes the initiative would make which Johnson contends are not disclosed to voters include:

  •  Overriding current laws that require drug testing of people who get certain welfare benefits or unemployment insurance;
  •  Affecting the ability of homeowners' associations to prohibit residents from growing marijuana;
  •  Prohibiting courts in child custody cases from making a decision based solely on one parent's use of marijuana;
  •  Limiting the ability of local governments to regulate marijuana sales.

Foes also contend even the title of the initiative, the Campaign to Regulate Marijuana Like Alcohol, is misleading because it would not subject marijuana use to the same restrictions as alcohol.

Both existing laws on alcohol and the initiative make it illegal to drive while impaired. But unlike the drunk-driving laws, there is nothing to say at what blood level of marijuana someone would be automatically considered impaired.

Aside from Montgomery, the challengers include Yavapai County Attorney Sheila Polk, state Rep. Paul Boyer, R-Phoenix, Moses Sanchez who is a member of the Tempe Union High School District governing board, and the Arizona Chamber of Commerce and Industry.