Pubdate: Sat, 14 May 2011
Source: Missoulian (MT)
Copyright: 2011 Missoulian
Author: Charles S. Johnson, Missoulian State Bureau
Referenced: Temporary restraining order and order to show cause
Referenced: Complaint for declaratory and injunctive relief
Referenced: Plaintiffs' brief supporting motion for preliminary 
Referenced: Plaintiffs' brief supporting motion for temporary 
restraining order


HELENA - A state district judge in Helena on Friday temporarily
ordered the state to not enforce a recently passed ban on all
advertising of medical marijuana products, in response to a lawsuit
attempting to strike down the entire new law that places strict
restrictions on Montanans' medical marijuana use.

District Judge James Reynolds scheduled a hearing on the initial
request for May 27.

The Montana Cannabis Industry Association and eight individual
plaintiffs want the courts to overturn Senate Bill 423, which the 2011
Legislature passed last month and which Gov. Brian Schweitzer let
become law Friday without his signature.

In the motion, the plaintiffs' lawyers said the new law's advertising
ban is an "unjustified prohibition on constitutionally protected
political and commercial speech, which has already had a chilling
effect on some registered cardholders."

The association is being represented by Bozeman attorneys James Goetz,
J. Devlan Geddes and Jim Barr Coleman.

The Cannabis Industry Association raised $50,000 in five days to hire
Goetz, one of Montana's top constitutional lawyers.

The new state law repeals Montana's 2004 voter-passed medical
marijuana law and imposes restrictions aimed at making it much harder
for people to qualify to legally use the drug - and limits its
availability by banning large growing operations. Instead, it sets up
a system where a provider can grow medical pot for up to three people,
but at no charge.

In a separate motion seeking an injunction to strike down the law, the
attorneys asked the court to declare that SB423 violates the
plaintiffs' constitutional rights to equal protection, privacy,
dignity, freedom of speech and due process. It also mentioned their
right to pursue life's basic necessities, including personal health
and their right against unreasonable searches and seizures.

In a separate legal brief seeking an injunction against the law, the
plaintiffs note that from the initiative's passage in 2004 until 2011,
several legislative sessions barely touched the Medical Marijuana Act.

"However, in a feeding frenzy that can appropriately be dubbed its
moment of 'reefer madness,' the Montana Legislature spent considerable
time in repeated attempts to undo the enactment of the people," the
brief said.

The 2011 Legislature first passed House Bill 161, which sought to
repeal the medical marijuana law in its entirety. Schweitzer vetoed
that bill.

Then lawmakers passed SB423, which the attorneys called "a thinly
veiled attempt to accomplish what the vetoed HB161 could not - the
outright repeal of the MMA (Medical Marijuana Act)."

It does so by seeking to "choke off access to medical marijuana for
those in need by eliminating caregiver producers," by limiting to
three the number of patients a provider can serve and by prohibiting
any payment to the producer, the brief said.

It said that law then takes "a ham-fisted swipe at the ability of
medical doctors to certify patients in medical need by creating
oppressive features" intended to dissuade physicians from recommending
the use of medical marijuana,

"Worse yet, the users who by definition suffer from a 'debilitating
medical condition' are virtually branded as second-class citizens,
ranging from serious intrusions into the doctor-physician
relationship, to warrantless and unannounced searches," the brief said.

A critical problem with the 2011 changes is that they effectively
eliminate producers, the brief said, leaving medical cannabis to
"somehow spring up by immaculate conception and be timely available to
those patients in need," the plaintiffs' brief said.

It cited plaintiff Charlie Hamp, 79, whose wife, Shirley "Butch" Hamp,
suffered from cancer of the esophagus and had an esophagectomy, a
serious surgery, that resulted in her weight dropping from 105 pounds
to 88 pounds. Doctors suggested she try medical marijuana, and she
laces her coffee with a marijuana tincture every morning.

"Under the amendments, her caregiver will be out of business," the
brief said. "Of necessity, under the law, her 'provider' will now
become her husband. ... He is reluctant, but there is no alternative.
But Charlie has not a clue about how to obtain seedlings, beginning
the grow process, cultivating the plants, how long this will take or
ultimately how to manufacture the necessary tincture for his
debilitated wife."

The brief added, "At their age and in their condition, the last thing
they need is for a 'Big Brother' government to come into their lives
and dictate what they can and cannot do about their personal health
and well being," the brief said.

Attorney General Steve Bullock's office will be defending the state

"For well over a year, Attorney General Bullock and staff at the
Department of Justice worked closely with law enforcement, community
leaders and legislators to identify areas of concern and propose
common-sense regulatory solutions to ensure our communities stay safe
and patients in legitimate need can access medication," said Bullock's
spokesman, Kevin O'Brien. "While not every provision that ended up
being included in this legislation was advocated for by the attorney
general, we will actively and aggressively defend this law against any
challenge - as is our constitutional responsibility."
- ---
MAP posted-by: Richard R Smith Jr.