Pubdate: Wed, 12 Sep 2012
Source: Missoulian (MT)
Copyright: 2012 Missoulian
Author: Charles S. Johnson

Montana Supreme Court


HELENA -- There is no fundamental right for patients to use any drug, 
particularly one like medical marijuana that's illegal under federal 
law, the Montana Supreme Court ruled Tuesday, in reversing a lower 
court decision.

In a victory for the state, the Supreme Court's 6-1 decision reversed 
a District Court's temporary injunction that blocked enforcement of 
part of a 2011 state law that sought to restrict access to medical marijuana.

"In pursuing one's health, an individual has a fundamental right to 
obtain and reject medical treatment," Justice Michael Wheat wrote for 
the majority. "But, this right does not extend to give a patient a 
fundamental right to use any drug, regardless of its legality."

Joining Wheat in the majority were Chief Justice Mike McGrath and 
Justices Jim Rice, Beth Baker and Brian Morris and District Judge 
Susan Watters of Billings, who filled in for Justice Patricia Cotter. 
Justice James Nelson dissented.

The Supreme Court overturned Helena District Judge James Reynolds' 
June 2011 decision that temporarily blocked restrictions to access to 
medical marijuana in the 2011 law. It sent the case back to Reynolds 
and directed him to apply the "rational basis" test rather than the 
"strict scrutiny" test to determine whether certain provisions of the 
law should be enjoined.

A "rational basis" test begins with the assumption that a law is 
constitutional unless it's not rational. Under a "strict scrutiny" 
test, there is a heavier burden on the state to justify a law and it 
must establish a compelling state interest.

State Justice Department officials received the opinion late in the 
day and wanted to analyze it before commenting on the ruling, 
spokeswoman Judy Beck said.

James Goetz, the Bozeman attorney representing the Montana Cannabis 
Industry Association and other plaintiffs, said the state won this 
round, "but we're not done yet." He said he will file an alternate 
argument under the "rational basis" test before the District Court 
that the 2011 law doesn't pass muster.

"So we will take that back to the District Court because this law is 
indeed not rational," Goetz said. "I don't see how any rational court 
could find this law rational."

Goetz said he doubts that the case will go before the District Court 
before the November election.


Last year, medical marijuana supporters obtained enough signatures to 
place the 2011 law on the ballot as a referendum. Voters on Nov. 6 
will decide whether to keep or reject the law.

In 2011, the Montana Legislature changed the law to allow a medical 
marijuana provider to serve only three cardholders and forbade them 
from accepting any payment for medical pot, although cardholders 
could pay their licensing fees. Previously, there had been no limits 
on the number of people providers could serve, and they could charge 
fees for selling medical marijuana.

The Montana Cannabis Industry Association sued shortly after the 2011 
Legislature adjourned in an attempt to strike down the entire law. 
Reynolds temporarily enjoined several parts of it.

Montana voters had approved Initiative 148 in 2004 to legalize the 
use of marijuana for certain medical purposes here. However, 
marijuana remains illegal under federal law.

The number of medical marijuana cardholders had skyrocketed to more 
than 27,000 before the 2011 Legislature convened. The numbers soared 
after a series of "cannabis clinics" around the state in which people 
could obtain medical pot cards in a matter of a few minutes, often 
through Internet consultations with out-of-state doctors.

Wheat said the right to privacy "does not encompass the affirmative 
right of access to medical marijuana."

"The plaintiffs may decry that the Legislature gutted I-148, but it 
was within the Legislature's right to do so," Wheat wrote.

The new medical marijuana framework "does not suddenly raise the 
affirmative right to access a particular drug to a fundamental right 
protected by our constitution," Wheat wrote. "Moreover, the 
plaintiffs cannot seriously contend they have a fundamental right to 
medical marijuana when it is still unequivocally illegal under the 
(U.S.) Controlled Substances Act."

The plaintiffs also had contended that medical marijuana providers 
had a right to employment, and the new law interfered with that right.

The Supreme Court said an individual has no property right in a 
particular job or employment, adding in effect that medical pot 
providers can grow other products instead.

"Providers, who are ultimately horticulturists, remain free to pursue 
horticulture work generally and further are not proscribed from 
practicing the art of horticulture -- including hydroponic 
horticulture -- for profit," the decision said.

In his dissent, Nelson said the court should have vacated the 
District Court's decision and sent it back to Reynolds with 
instructions to dismiss the lawsuit.

"Stripped to its core, the remarkable premise underlying plaintiffs' 
request for relief in this case is that they have a fundamental right 
under the Montana Constitution to engage in conduct which is criminal 
under federal law," Nelson said.
- ---
MAP posted-by: Jay Bergstrom