Pubdate: Fri, 14 Dec 2012
Source: Missoulian (MT)
Copyright: 2012 Missoulian
Author: Charles S. Johnson


Montana Marijuana Advocates Look to Colorado, Washington

HELENA  A district judge on Thursday temporarily continued to stop the
state from enforcing certain restrictions in a 2011 state law aimed at
medical marijuana providers.

After a two-hour hearing, District Judge James Reynolds of Helena
extended his temporary restraining order at the request of James
Goetz, the Bozeman attorney representing the Montana Cannabis Industry
Association and others.

His order continues to block two 2011 restrictions from being enforced
  one limiting medical marijuana providers to three patients apiece and
the other forbidding providers from being paid by patient for pot.

These provisions were part of a more restrictive state law in which
some legislators said they wanted to squeeze the profits out of what
was then a booming medical marijuana industry in the state. However,
under the new law, those with medical marijuana cards can grow their
own pot or find a provider to grow it for them for free.

However, three medical marijuana cardholders called by Goetz said it
would be impossible for them to grow pot.

Two medical marijuana providers testified that it is not only costly
to set up a pot-growing operation, but difficult for to grow various
strains of marijuana. Both testified they would shutter their
operations if they couldn't be paid for marijuana.

The temporary order will remain in place while Reynolds determines
whether to issue a preliminary injunction indefinitely halting the
enforcement of those provisions of a more restrictive medical
marijuana law passed by the 2011 Legislature.

In mid-2001, Reynolds had temporarily blocked some of the provisions
restricting access to medical marijuana.

However, the Montana Supreme Court in September reversed Reynolds in a
6-1 decision, declaring there is no fundamental right for patients to
use any drug, particularly one that's illegal under federal law like
medical marijuana.

The Supreme Court directed Reynolds to apply the "rational basis"
test, which assumes a law is constitutional unless it's not rational,
instead of the "strict scrutiny" test Reynolds had used.

Several times in the hearing, Reynolds acknowledged he was having
trouble with the court's decision.

"I get whipsawed by the state Supreme Court, which said there is no
(marijuana) access under federal law," the judge said. "I am trying to
figure out what am I supposed to do here."

At one point, Reynolds suggested that he didn't believe some
restrictions in the law are rational.

He was referring to the testimony of wheelchair-bound Lori Burnam, a,
66-year-old woman from Hamilton who weighs 69 pounds. Burnam has faced
cancer, emphysema, a broken hip and a double mastectomy.

Before taking medical marijuana, Burnam said she was prescribed
morphine, which caused her horrible nightmares, make her sleepy and
gave her "the sweats." Morphine also caused her to lose five pounds,
dropping her weight to her current 69 pounds, Burnam said.

"My doctor was surprised I had lived as long as I can," she said. "The
doctor said whatever I was doing, keep it up."

Burnam said she now obtains her medical marijuana from a Missoula

Goetz asked if growing her own marijuana was a viable option if she
couldn't obtain the pot from her provider.

"Not at all," Burnam said. "I have no idea how to harvest it or dry
it. It just isn't feasible."

Asked if she could buy her own marijuana if her provider shuts down,
Burnam said, "No. Do I look like I'm connected?"

Without medical marijuana, she said, "I believe it's my last

Reynolds cited Burnam's testimony as an illustration how the law,
forcing people in her condition to grow their own medical marijuana,
is not rational.

Goetz said, "Obviously, there is irreparable injury to Lori Burnham
and the other witnesses here, if they are deprived of their medicine."

However, Assistant Attorney General Stuart Segrest said the state had
complied with the Supreme Court's requiring the law to be rationally
related to the state's interest.

The law says cardholders may grow their own marijuana or find someone
to grow it for them.

He asked why the same kind of "charitable spirit" that leads some
people to build houses for others wouldn't encourage some people to
grow marijuana for some medical marijuana cardholders.

Medical marijuana is illegal in 34 states, he said, and doctors are
able to treat patients through other means.
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