Judge tosses out attempt to keep marijuana initiative off ballot

PHOENIX — A judge has thrown out a bid to keep voters from deciding whether to legalize the recreational use of marijuana.

In a ruling Friday, Maricopa County Superior Court Judge Jo Lynn Gentry said when state lawmakers altered the election code last year they eliminated — perhaps inadvertently — the ability of individual citizens to sue to keep initiative measures off the ballot. And she said lawmakers failed to restore that right anywhere else.

“Thus, whether wittingly or not, the legislatures eliminated a means by which initiative petitions can be challenged,” Gentry wrote.

The judge also rejected a legal end-run attempted by Brett Johnson, the attorney for foes of legalization, who told Gentry she should use the court’s more general powers over actions of public officials to keep Secretary of State Michele Reagan from putting the measure to voters.

“Where the legislature has specifically acted to divest the court of jurisdiction, it would be imprudent to ignore the standing issue,” Gentry wrote.

Friday’s ruling is not the last word.

“Despite today’s ruling we still believe this initiative perpetrates a fraud on the electorate,” said Seth Leibsohn who chairs Arizonans for Responsible Drug Policy, the group that is trying to keep the measure from getting to voters. “We will be seeking an appeal on the ruling.”

Gentry, however, is prepared if the Arizona Supreme Court overturns her conclusion that the challengers have no legal right to sue: She also ruled that even if they had legal standing to contest the validity of the measure, they never provided the legally required proof that the initiative is too legally flawed to present to voters.

In a prepared statement, initiative chairman J.P. Holyoak said the ruling shows “this was a frivolous and politically motivated lawsuit.”

He also noted that plaintiffs in the case include two prosecutors: Yavapai County Attorney Sheila Polk and Bill Montgomery from Maricopa County. Holyoak said if they don’t like the measure “they should take their arguments to the voters, not to our overburdened court system.”

A 2010 voter initiative allows those with certain medical conditions, a doctor’s recommendation and state-issued ID card to obtain up to 2½ ounces of marijuana every two weeks from one of approximately 90 state-authorized dispensaries.

This measure, sponsored by many of the same interests, would permit any adult to have up to one ounce of the drug or six plants without fear of prosecution under state law. It also sets up a new state agency to regulate sales, imposes new taxes and enacts various provisions that have ripple effects through state law.

Johnson argued those ripple effects are not disclosed to voters in the 100-word summary required by state law.

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For example, he noted, it would prohibit a judge handling a child custody fight from considering whether one parent uses marijuana. There also are new restrictions on the ability of employers to fire workers simply for using the drug off premises.

And while the law prohibits driving while impaired by marijuana, it sets no legal presumptive standard of how much psychoactive substance someone would have to have in his or her blood to be found guilty.

Gentry said even if the challengers had standing to sue, that argument would fail.

She said that, pretty much by definition, a summary is just that.

The judge noted that Arizona law limits a summary to 100 words. Yet Gentry said it took her 106 words just to list all the things challengers say needed to be added to what already was a 96-word description.

Yet she said Johnson never told her what was in the original summary that could come out to keep the summary at the legally limited 100 words.

“Plaintiffs’ position is in essence that the summary should have more fully described what the initiative would do but do not explain how they could do it better,” Gentry wrote.

And there’s something else.

The petitions with the summary specifically tell would-be signers that it is “only a description” of the measure and that the full proposal, if they want to read it, is attached.

“The initiative text speaks for itself,” Gentry wrote. And she said challengers even told her during last week’s hearing they have “confidence in the ability of the voters to read and discern the merits of the initiative.”

But Gentry’s ruling suggests there could be legal problems for proponents even if the measure goes on the ballot and is approved.

One of the claims by challengers is that the measure does not comply with a constitutional provision that requires all initiatives that have a cost to identify a new revenue source to pay for it. The plan for this measure is to take start-up cash from an existing fund at the Department of Health Services to administer the medical marijuana law.

But Gentry said there is nothing in Arizona law that allows that issue to be raised before a measure goes on the ballot. She said challengers have to wait until it is approved to make that argument.