Pubdate: Thu, 14 Jul 2011
Source: Helena Independent Record (MT)
Copyright: 2011 Helena Independent Record
Author: Jim Shockley
Note: Sen. Jim Shockley of Victor represents Senate District 45 in the
Montana Senate.


Normally I believe that legislators should not comment on a pending
lawsuit, and the suit challenging Senate Bill 423 (the revision the
2011 Legislature made to the 2004 Medical Marijuana Act) is still
pending in Lewis and Clark County. An Order On Motion For Preliminary
Injunction (order) has been issued, but the case has not gone to
trial. The case is "political" in nature and I believe that comment is
warranted. It concerns a bill just passed by the Legislature to more
closely regulate the production and use of medical marijuana. Judge
James P. Reynolds was doing his duty as he saw it and expressed
himself well in his recent order. However, I find his order troubling.

The order refers to patient's right to "lawfully" receive medical
marijuana, ignoring the fact that it is unlawful under federal law to
grow, sell or use marijuana. The order ignores the tension between
state and federal law and assumes that it is legal to use medical
marijuana. The judge's order in effect says that it is a fundamental
right under the Montana Constitution to violate the federal criminal

However, the order's most problematic aspect is its holding that the
provision of the statute that limited the compensation paid to
"providers" who grew the plant for patients, and the number of
patients that they could supply, is unconstitutional. The order states
that the right to supply any number of patients and make a profit
selling marijuana is protected by Article II, Section 3, of the
Montana Constitution; in fact it was a "fundamental constitutional
right." If the commercial growing of marijuana is a fundamental right,
it seems that the Legislature cannot restrict large grow operations,
nor even ban the sale of marijuana for a medical purpose if it wanted
to do so. There would be less control by the state over medical
marijuana than it exerts over alcohol, or even tobacco; e.g., the age
of the user.

The Legislature realized the tough situation that federal law
enforcement was put in by the current law, and the risk to Montana
citizens who wished to benefit from medical marijuana, either as a
grower or a medical user. The Legislature was attempting to limit
production in a way that would not attract federal attention. The
judge chose not to address this issue.

Medical marijuana has been a serious problem for some time and many
Montanans have complained to the Legislature. As examples of these
problems: The current law allows unrestricted advertising, large grow
operations, uncontrolled issuance of medical marijuana cards, and
makes it impractical for state law enforcement to enforce the law. If
this preliminary injunction survives in anything like its present form
through the Montana Supreme Court, Montana will have no control over
the commercial production of marijuana or its use. Holding that the
production and use of marijuana is a fundamental constitutional right
will reduce to almost nil the state's ability to control the use and
production of marijuana. I believe that the problem with medical
marijuana will be much worse should this order survive the process.
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