Pubdate: Wed, 08 Aug 2012
Source: Missoulian (MT)
Copyright: 2012 Missoulian
Author: Gwen Florio


Montana's courts shouldn't spend any more time on state medical
marijuana laws, a Montana Supreme Court justice says -- again.

Justice James C. Nelson's comments were included in a Supreme Court
decision issued last week in a case appealing Deer Lodge's approval of
a medical marijuana business in 2010.

Deer Lodge was within its rights to approve Zoo Mountain Natural
Care's business license in 2010, six of the justices concurred, Nelson
among them.

He added his comments in a separate concurrence.

Montana laws legalizing the medical use of marijuana violate federal
law, which trumps state law, he wrote.

"The courts of Montana should not be required to devote any more time
trying to interpret and finesse these state (marijuana) laws," he wrote.

Nelson has raised the issue before. He appended a far lengthier
concurrence to a majority opinion last month that upheld a lower court
decision forbidding caregivers from engaging in marijuana transactions
with other caregivers.

"If the anti-marijuana paradigm is to be changed, it must be changed
at the federal level first," he wrote then.

He also raised the issue during a hearing in May when the state's high
court considered the Montana Cannabis Industry Association's move to
block a 2011 state law banning commercial sales of medical marijuana
in Montana.

After the Legislature approved the law, state District Judge James
Reynolds temporarily blocked part of it. Both the Montana Cannabis
Industry Association and the state are appealing parts of his ruling.

In the Deer Lodge case, several residents sued the city and Zoo
Mountain Natural Care after the city approved a business license for
the grow operation.

After Zoo Mountain opened, Deer Lodge enacted an ordinance banning new
commercial medical marijuana activity within 1,000 feet of churches,
schools, day care centers and youth recreational facilities.

Powell County District Court concluded that Deer Lodge had no legal
duty to revoke the license. The Supreme Court agreed.

"If the city chooses not to enforce an ordinance, really there's
nothing the citizenry can do," said Missoula attorney Douglas Harris,
who represented those appealing that decision. "You're just out of
luck, period."

He likened it to the Missoula police handing out warnings -- but no
citations -- for fireworks violations on the Fourth of July.

Helena attorney Michael Kauffman, who represented Deer Lodge and Zoo
Mountain, said he doesn't think the court's ruling will have a
measurable effect on medical marijuana issues in Montana.

"The big one is still pending," he said, referring to the Supreme
Court's consideration of of the 2011 law.

"I'm not sure if anything is clear right now on the status of medical
marijuana in Montana," he said.
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