Damned if you do 

Med pot court case could sway election

This week, the Montana Supreme Court heard oral arguments on Montana's medical marijuana law. The state, represented by Attorney General Steve Bullock, argued that District Judge James Reynolds improperly halted sections of the law passed by the 2011 legislature. Trial lawyer Jim Goetz, of Bozeman, argued that the new law is rife with unconstitutional provisions and should be dumped in its entirety. The outcome could affect thousands of Montanans who still rely on marijuana as medicine. It could also influence the November elections.

In 2004, Montanans passed an initiative, I-148, by a whopping 62 percent—more votes than any politician or other ballot measure could claim. The law provided that, with a doctor's prescription, those who wished to use medical marijuana could get a state medical marijuana card allowing them to obtain their medicine from registered caregivers or to grow it themselves.

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Slowly but surely, the list of cardholders grew into the thousands and the medical marijuana industry expanded. Then, due in part to efforts to make obtaining a state card easier, medical marijuana caravans, video visits with doctors to get prescriptions and, perhaps, an acceptance by the public that medical marijuana was indeed legal in Montana and wouldn't get one tossed in jail, the number of cardholders ballooned, eventually topping out at more than 30,000 in 2010.

The fly in the ointment was the fact that marijuana remains a Schedule I drug under federal law, which prohibits both its use and production. However, a memorandum issued by U.S. Attorney General Eric Holder seemed to assure patients and providers in states that legalized marijuana for medical use that the federal government would defer to state laws. Sometime in 2010, that changed. The federal government began what it claims was an 18-month investigation into Montana's medical marijuana industry, targeting those who grew and distributed it.

At about the same time, and prior to the 2011 legislature, opponents to any use of marijuana began efforts to overturn the initiative, finding champions to carry their repeal in folks such as Mike Milburn, a Republican representative from Cascade, and Jeff Essmann, a Republican senator from Billings. As Speaker of the House in a chamber dominated by a two-thirds Republican majority, Milburn passed a repeal through the legislature, only to have it vetoed by Gov. Brian Schweitzer.

That brings us to the law at hand, which passed the legislature as SB 423. The bill was thrown together in the closing weeks of the session in response to Schweitzer's veto. Besides being a thinly veiled attempt at repeal, it's sausage-making at its worst. For example, District Judge Reynolds blocked the law's provision of warrantless searches, its ban on advertising and the prohibition that those growing medical marijuana may receive remuneration from patients.

But that ruling fell far short of what's necessary, argues Goetz on behalf of the Montana Cannabis Industry Association. "The preliminary injunction," Goetz wrote in a brief, "did not go far enough—the entire act should have been enjoined because its constitutionally-offensive features are so intertwined with the rest of the act that the excision amounted to an improper rewrite of the statute." The law infringes on constitutional rights, he argues, "to pursue good health, happiness, privacy, dignity and a lawful occupation."

In a brief for the state, Bullock—who is also running for governor—contends that the court "has already determined that the right to pursue employment is limited to lawful activities. Commercially selling marijuana ... is illegal under Montana law as well as federal law. Similarly, there is no right to pursue health free of government regulations. And while the right to privacy encompasses the right to make medical decisions, that right must be balanced against the state's police power, especially where no fundamental right is at stake."

In addition to these arguments and their outcome, waiting in the wings is I-124, the initiative allowing voters to repeal SB 423. Medical marijuana supporters put it on the ballot by garnering 26,778 signatures from 49 of the state's 100 legislative districts. If the court strikes down SB 423, that initiative will be moot and the law will revert to its 2004 version; if the court rules otherwise, voters again will have a chance to tell lawmakers what they want when it comes to medical marijuana.

The peril for Bullock is what 30,000 former patients and nearly 27,000 signers on the initiative will do this fall. If they think he's fought against their interests, even if it was his duty as attorney general to defend the law, they might not give him their votes. He could win in court and lose in November.

Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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