Pubdate: Wed, 30 May 2012
Source: Great Falls Tribune (MT)
Copyright: 2012 Great Falls Tribune
Author: Matt Volz


HELENA - The Montana Attorney General's office will make its case 
Wednesday to the state Supreme Court that the commercial sale of 
medical marijuana should be halted.

Assistant Attorney General Jim Molloy is set to argue that District 
Judge James Reynolds improperly blocked that portion of the new 
medical marijuana law passed by the 2011 Legislature.

Meanwhile, the plaintiffs led by the Montana Cannabis Industry 
Association say that Reynolds should have gone further and blocked 
the entire law, not just the provision keeping marijuana providers 
from making a profit. They will ask the state's high court to do so 
until their lawsuit can be heard.

The new law imposes limitations on who can access and distribute 
medical marijuana. The law was passed by the Republican-led 
Legislature after Gov. Brian Schweitzer vetoed a total repeal of the 
2004 voter-approved initiative that brought medical pot to the state.

Supporters of the legislation touted it as a compromise meant to rein 
in an industry they say had spiraled out of control since 2009. When 
U.S. Department of Justice said then that it would not prosecute 
individuals who are clearly following state laws, the number of 
registered medical marijuana users in Montana jumped from about 3,000 
to more than 30,000 at its peak last year.

The Montana Cannabis Industry Association challenged the law's 
constitutionality in court and spearheaded a voter referendum to 
repeal the law in November.

Reynolds blocked the key part of the law that bans marijuana 
providers from being compensated for their services and limits the 
number of registered users a provider can have to three.

Reynolds blocked three other provisions of the law - a ban on 
advertising, allowing warrantless searches of medical marijuana 
premises and investigating doctors who recommend pot to more than 25 
patients a year - but the state is only challenging the injunction on 
commercial sales.

If the high court upholds Reynolds' injunction, it will be 
"groundbreaking" as the first appellate court to rule that medical 
marijuana restrictions violate patients' constitutional rights, 
Molloy argues in documents filed with the court.

"From our perspective, the crux of the issue is whether there is a 
constitutionally protected right to access marijuana for medical 
use," Molloy said Tuesday.

Montana Cannabis Industry Association attorney Jim Goetz argues in 
his filings with the court that the provisions that Reynolds blocked 
are so instrumental to the new law that the rest of the provisions 
should not be allowed to stand.

The law singles out marijuana from other types of medication for 
special treatment and intrudes into the doctor-patient relationship 
in violation of the state Constitution, which has had a chilling 
effect on certifying patients, Goetz wrote.

"The legislation is a severe overreaction to a relatively 
insignificant problem - explainable only by an irrational distrust of 
marijuana," Goetz wrote.

Goetz declined to comment before the arguments before the court.

The justices are not expected to make an immediate decision.

They could order Reynolds to temporarily block the entire law, which 
medical marijuana advocates say would reinstate the 2004 voter 
initiative as state law.

If the justices agree with the state attorneys' arguments, the 
justices could send the case back to Reynolds with instructions to 
apply a lower standard of review on the ban on commercial marijuana sales.

If that happens, a possible result is that Reynolds will lift his 
injunction, and the ban on medical marijuana profits will take 
effect, Montana Cannabis Industry Association President Chris Lindsey said.

"What's left of the industry (would be) gone," Lindsey said. "The 
remaining patients would be largely on their own."
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MAP posted-by: Jay Bergstrom