Pubdate: Sat, 23 Jul 2011
Source: Billings Gazette, The (MT)
Copyright: 2011 The Billings Gazette
Author: Jim Shockley
Note: Republican Jim Shockley of Victor represents Senate District 
45. He has announced his candidacy for Montana attorney general in 2012.
Bookmark: (Cannabis - Medicinal)


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 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.

State, federal tension

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 law.

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.

Marijuana complaints

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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MAP posted-by: Jay Bergstrom