Pubdate: Sat, 25 Jun 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Author: Charles S. Johnson, IR State Bureau


It would be "unprecedented and unwarranted" if a Helena district judge
temporarily prevents the entire new, more restrictive medical
marijuana law from taking full effect July 1, the attorney general's
office has said.

If District Judge James Reynolds temporarily halts implementation of
the full law, the state acknowledged that Montana law would revert to
what it was before parts of the new law took effect May 13, a
memorandum filed Thursday said.

If that occurs, "the commercial marijuana industry and all the
problems associated with it would continue to exist in this state,"
according to the legal document from Attorney General Steve Bullock,
Chief of Consumer Protection Jim Molloy and Assistant Attorneys
General Mark Mattioli and Stuart Segrest.

The new law, Senate Bill 423, repeals the current medical marijuana
law, which Montana voters passed as an initiative in 2004. It imposes
tougher restrictions such as banning commercial sales of medical pot
and allowing a provider (the new name for caregiver) to provide
medical marijuana to only three patients apiece and at no charge.

The question of what happens if the judge temporarily nixes part or
all of the new law may not just be hypothetical.

At a hearing this week, Reynolds strongly signaled he was considering
striking down parts of the law -- if not the whole statute -- on a
temporary basis before it takes effect July 1.

The memo from the attorney general's office was in response to one
filed during a hearing this week by the attorneys for the Montana
Cannabis Industry Association and others plaintiffs.

The plaintiffs said if the court finds SB423 unconstitutional, it has
the authority to enjoin implementation of the entire law.

"Once the court enjoins the implementation of SB423, preliminarily
declaring it to be unconstitutional, the result is that SB423 should
be treated as if it never existed and the old MMA (Medical Marijuana
Act) was never repealed," Bozeman attorneys James Goetz, J. Devlan
Geddes and Jim Barr Coleman wrote.

In response, the attorney general's office said parts of SB423 are
"clearly severable," which means a judge can strike them and the rest
of the act remains law.

"The act would remain valid and functional even if the court were to
temporarily enjoin certain provisions," the attorney general's office

As its attorneys said in court, the attorney general's office would
concede that certain provisions "that are troubling to the court may
be enjoined pending final adjudication of the issues." The sections

- - Banning all medical marijuana advertising.

- - Allowing unannounced inspections of caregivers' growing

- - Requiring the state Board of Medical Examiners to conduct a review
whenever a Montana physician has recommended marijuana for 25 or more
patients in any 12-month-period.

Reynolds expressed concern over a new provision that bans the
commercial sale of medical marijuana and replaces it with a system in
which a provider must supply medical marijuana to a patient for free.

The state maintained that it believes this ban on sales of marijuana,
which is an illegal product under federal and state law, is
"rationally related to legitimate governmental interests and is,
therefore, constitutional."

However, if Reynolds enjoins this section, other provisions of the law
would remain in place, and subject to enforcement, the attorney
general's office said. These include the three-patient per provider
limit and the ban on marijuana growing cooperatives.

Reynolds said in court he will try to have an order, if not a full
opinion, by June 30. 
- ---
MAP posted-by: Richard R Smith Jr.