Pubdate: Fri, 03 Jun 2011
Source: Missoulian (MT)
Copyright: 2011 Missoulian
Contact:  http://www.missoulian.com/
Details: http://www.mapinc.org/media/720
Author: Charles S. Johnson
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

MONTANA SAYS MEDICAL MARIJUANA LAW ISN'T UNCONSTITUTIONAL, INJUNCTION 
UNNECESSARY

HELENA - The state's medical marijuana law is not unconstitutional, 
and those challenging it are not entitled to a preliminary injunction 
to stop it from being implemented, the state attorney general's 
office said in a court filing Friday.

Attorney General Steve Bullock's office was responding to a lawsuit 
filed in state District Court last month by the Montana Cannabis 
Industry Association and seven individuals asking District Judge 
James Reynolds of Helena to strike down the Medical Marijuana Act as 
unconstitutional.

Reynolds has set June 20 and 21 for oral arguments.

Those challenging the laws haven't met the burden of establishing 
that the law is unconstitutional in its entirety, the attorney 
general's office said.

Even if part of the law is ruled unconstitutional, the law's 
severability clause allows the rest of its provisions to remain 
intact, said the memorandum by Bullock; James P. Molloy, his chief of 
consumer protection; and Mark W. Mattioli and J. Stuart Segrest, both 
assistant attorneys general.

The state said the Montana Department of Public Health and Human 
Services and local offices have already begun to implement the new law.

"A preliminary injunction prohibiting enforcement of the (law) in its 
entirety would create significant problems and confusion," the 
attorney general's office said.

In a legal memorandum, the office said those challenging the law have 
erroneously elevated the voter-passed 2004 statutory initiative that 
legalized medical marijuana to constitutional status.

"And their arguments are based more on political and policy grounds 
than on sound constitutional principles," the state said.

The attorney general's office said the new provisions are intended to 
be faithful to the original intent of the ballot measure, "while 
correcting and reining in the unintended and undesirable abuses and 
problems that have undeniably occurred."

At issue is Senate Bill 423, a heavily debated bill passed by the 
2011 Legislature and allowed to become law without Gov. Brian 
Schweitzer's signature. It repeals the 2004 referendum and imposes 
more restrictions on a medical marijuana industry that a majority of 
legislators believed has reeled out of control. The law also makes it 
harder for patients claiming "severe chronic pain" to qualify for a 
medical pot card.

The law will ban major medical marijuana growing operations and 
replace them with a "grow-your-own" system or let a provider to grow 
for up to three patients, but for no charge.

Montana now has more than 30,000 medical marijuana cardholders, up 
from 4,000 in September 2009. Thirty percent of them fall within the 
18-30 age group. More than 80 percent of cardholders got their cards 
after claiming "chronic pain" or "severe or chronic pain or muscle 
spasms," classifications that some legislators considered to be the 
major loopholes.

*

The lawsuit filed by the Montana Cannabis Association and others said 
the new law violates their 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 response, the attorney general's office said the law follows the 
intent of the 2004 initiative, which carved "a narrow exception from 
criminal sanctions for the controlled purpose and use for medical purposes."

The initiative was never intended to create a commercial growing 
system, but envisioned a "grow-your-own system" to allow people to 
have their own "personal supply," the attorney general's office said, 
quoting from the 2004 Voter Information Pamphlet.

The initiative did not amend the Montana Constitution or create a 
constitutional right to use medical marijuana, the memorandum said.

"Unfortunately, the narrow door the voters agreed to for 
compassionate use of medical marijuana was blown open by abuses and 
commercialization," the attorney general's office said.

The new law, the memorandum said, is "entirely consistent with the 
purposes and intent of Initiative 148," the document said. "People 
with serious medical conditions are able to obtain and use medical 
marijuana under the supervision of their physicians without fear of 
being arrested or prosecuted under the law."

The state has a legitimate interest "in controlling the circumstances 
under which a substance that is otherwise illegal under federal and 
state law is made available to persons for medical use," the memorandum said.

It cited the letter from Michael Cotter, U.S. attorney for Montana, 
to legislative leadership warning that "the prosecution of 
individuals and organizations involved in the 'trade' of any illegal 
drugs (specifically including marijuana) is a core priority of the 
(U.S.) Department of Justice, even where such activities are 
authorized under state law."
- ---
MAP posted-by: Jay Bergstrom