Pubdate: Thu, 31 May 2012
Source: Missoulian (MT)
Copyright: 2012 Missoulian
Author: Charles S. Johnson


HELENA  Montana Supreme Court justices on Wednesday wrestled with the 
legal issue of whether people have a fundamental, constitutional 
right to sell medical marijuana, which is legal under state law, but 
illegal under federal law.

A state attorney urged the Supreme Court to reverse a lower-court 
ruling that struck down part of the law, passed by the 2011 
Legislature, that in essence banned the commercial sales of medical marijuana.

Assistant Attorney General James Molloy said state District Judge 
James Reynolds, of Helena, used the wrong legal standard in blocking 
that part of the law that forbids any payment to those growing 
medical marijuana.

He disputed Reynolds' decision that banning compensation for 
marijuana would deprive Montanans of their fundamental rights to 
pursue their health and livelihoods.

"Is there a fundamental right to engage in the sale of a product that 
is illegal?" Molloy asked.

But a lawyer for the Montana Cannabis Industry Association disagreed, 
arguing the law is riddled with problems. The association asked 
Reynolds to temporarily block the entire law from going into effect 
last July, until a full trial could be held. Reynolds denied that request.

"The problem with this statute is that it makes scofflaws out of 
everyone," said attorney James Goetz of Bozeman.

He asked how people legally using medical marijuana under Montana law 
can obtain the product if they can't buy it under the law. The 
"grow-it-yourself" philosophy envisioned in the law isn't practical, 
Goetz said, because "it's just not that easy to grow marijuana."

The 2011 Legislature passed the law restricting the access to medical 
marijuana after the number of people with medical pot cards in 
Montana had skyrocketed to 27,000 in December 2010, with nearly 5,000 
medical marijuana providers legally authorized to grow marijuana.

As of last month, there were 10,640 medical marijuana cardholders and 
414 providers.

The new law passed after Gov. Brian Schweitzer vetoed a bill 
repealing the 2004 voter-passed law legalizing medical marijuana. The 
new law makes it harder for people to obtain medical marijuana and 
bans large commercial growing operations. It also allows a provider 
to supply medical marijuana to only three patients, but for no compensation.

Shortly after the law was passed, the Montana Cannabis Industry 
Association and others challenged the law in court. Reynolds 
temporarily blocked parts of the law from taking effect, and both the 
association and state appealed on different grounds.

Justices on Wednesday grappled with many of the same issues that lawmakers did.

"Federal law says you can't possess, grow, cultivate or dispense 
marijuana, period," Justice James Nelson said in a question to Molloy.

Replied Molloy: "Federal law cannot compel the state to make conduct 
unlawful. That would constitute commandeering."


Justice Beth Baker asked whether the rest of the law can still stand 
legally, even if the parts dealing with commercialization of medical 
marijuana were temporarily enjoined.

"There are many provisions in the law that can and should be in 
effect, even with the severed provisions," Molloy said.

Baker asked Goetz if it is legitimate for the state to prohibit 
commercial enterprises that violate federal law.

Goetz said a state can do that, but that the Legislature hadn't done 
it, adding: "Our Legislature makes medical marijuana legal, medicinal 
and available  sort of. So your question is hypothetical. Montana has 
said marijuana should be available to medical patients."

Baker said her question wasn't hypothetical.

Later, Goetz said, "There's no question in this case that marijuana 
has true medicinal values."

Chief Justice Mike McGrath interrupted, saying, "Mr. Goetz. That's 
not the issue here."

"Your point is, what it boils down to, is: These plaintiffs have a 
right to sell marijuana," McGrath said. "It's not that patients who 
are ill have a right to access marijuana. The argument here is that 
somebody else has a fundamental constitutional right, to sell a 
product that is otherwise illegal. Right? How do you get around that?"

Goetz said there is a constitutional right to pursue a livelihood 
under a Supreme Court precedent. The state can regulate a lawful 
occupation, he said, "but the true intent of this statute is to 
eliminate commercial intercourse in marijuana."

He said the while voters had made medical marijuana legal in Montana, 
the Legislature is arbitrarily denying access with the new law.

Justice Brian Morris asked if the Legislature could legalize 
marijuana and regulate it like it has with alcohol.

Goetz called that "legitimate regulation."

Morris said no one had applied the stricter legal standard to alcohol.

Goetz said marijuana is a medicine, adding: "Only in Butte do they 
consider alcohol a medicine."

The court took the case under review.

Meanwhile, opponents of the 2011 law obtained enough signatures to 
put it on the November ballot as a referendum. Voters will have a 
chance to keep or throw out this law.

In addition, petitions are circulating for proposed constitutional 
amendment for the November ballot. If it qualifies, voters would 
decide whether to grant adults the constitutional right to buy, 
consume, produce and possess marijuana, subject to reasonable limitations.
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MAP posted-by: Jay Bergstrom