Pubdate: Sat, 04 Jun 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Author: Charles S. Johnson, IR State Bureau


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

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 state Department of Public Health and Human
Services and local offices have already begun to implement the new

"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 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." 
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