Out of the weeds?

Montana's medical marijuana issue isn't settled—it's just taking a nap 

Last month, voters approved ballot initiative I-182, repealing Montana's three-patient limit on providers of medical marijuana. The "yes" votes won by a substantial margin, 58 percent to 42 percent. But shortly after Election Day, state officials announced that a "scrivener's error" would delay the repeal until July 2017. Evidently, the sponsors of the initiative rewrote it in a way that changed the number of its sections shortly before it appeared on ballots, and then forgot to update the part that said when which sections would come into force.

I sometimes wonder what role forgetting things has played in the history of marijuana decriminalization. But District Judge James Reynolds of Helena rode to the rescue last week, snatching victory from the jaws of a defeat previously snatched from the jaws of victory. He ruled that the three-patient limit should be repealed immediately, arguing that "the folks that are maybe the most in need are the least able to provide, to grow their own, [so] speed is more important than niceties." And like that, one of the longest-running controversies in Montana politics seemed to have been put to rest.

The three-patient limit that I-182 repealed was itself the product of a court battle that lasted five years, beginning when activists, patients and providers challenged a law passed by Republican legislators in 2011. That law, which kept medical marijuana legal but made it virtually impossible to run a business selling it, was itself a response to ballot initiative I-148, which legalized marijuana in Montana for medical purposes back in 2004. The legislature passed a bill to repeal I-148 in 2011, but then-Gov. Brian Schweitzer vetoed it, so they went with the three-patient limit instead.

All that's over now. The restrictions that accomplished the same effect as the vetoed bill to repeal the ballot initiative were themselves repealed by another ballot initiative, and although that ballot initiative technically said the wrong thing, the lawsuit to enforce what it really meant has succeeded. So everything is fine, in the sense that we are right back where we started when voters approved medical marijuana in the first place.

When you put it that way, it doesn't sound like this issue has been resolved at all. As of press time, no Republican legislators or anti-marijuana activists have challenged Judge Reynolds' ruling. That's probably good, since the voters approved medical marijuana by a landslide. But that didn't stop the legislature in 2011, when it voted to repeal another marijuana ballot initiative that also passed in a landslide.

click to enlarge PHOTO BY CATHRINE L. WALTERS
  • photo by Cathrine L. Walters

Why did they do that? Maybe it was because medical marijuana was starting to look like recreational marijuana, and fast. In March 2009 there were 2,000 medical marijuana cardholders in the state. By March 2011 there were 31,000. Either Montana suffered a colitis epidemic, or people were abusing the system.

I should pause here and say I don't think that's so bad. Many states have used medical marijuana as a kind of soft decriminalization—a way to tax and regulate a popular drug and bring a portion of the illicit market under government control. Medical marijuana seems more palatable to voters than recreational marijuana. The boom between 2009 and 2011 also created a growth industry in a state that sorely needed one. The conditions surrounding medical marijuana in Montana five years ago seemed just ducky to me, but those were the conditions to which Republican lawmakers objected. And nothing about the present situation suggests they won't arise again.

There are shops that sell medical marijuana in Missoula right now. They pay rent every month, and they make more money if they serve more patients. The doctors who prescribe medical marijuana make money when people come to them looking for cards. The same incentives are in place for the industry to expand that were in place five years ago.

Maybe we'll be fine with that. Perhaps de facto re-criminalization convinced Montanans that the proliferation of cardholders and dispensaries wasn't so bad. But if keeping recreational users from becoming medical marijuana patients is an issue we're concerned about, I suspect we're going to keep litigating it.

I applaud the opponents of medical marijuana for showing restraint thus far. A new legislative session is only weeks away, though. The voters have weighed in twice on this issue, and they voted for medical marijuana both times—once when they might not have understood the consequences, and now again when they do. I believe Republicans should respect that, but there are not many concrete reasons to believe they will.

The medical marijuana issue has not been put to bed. It's only drowsing on the couch, waiting for that message that asks if it's still watching Netflix. Let's hope it rests peacefully for a while, instead of jolting awake and knocking over the bong of legislative comity once more.

Dan Brooks writes about politics, culture, and why you should always just put your bong away immediately after you're done using it at combatblog.net.

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The original print version of this article was headlined "Out of the weeds?"

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