Montana Appeals Decision Blocking Med Marijuana Restrictions

By Steve Elliott ~alapoet~

Wednesday, August 10, 2011, at 1:20 pm

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Photo: Billings Gazette
Flowering cannabis plants at Montannabis, Inc., Billings, Montana, March 16, 2011.

​Montana on Tuesday appealed to the Montana Supreme Court a judge’s ruling which blocked tight new restrictions on medical marijuana on the state, and will argue there’s no constitutional right to sell cannabis for a profit. The new restrictions have been described by some patient advocates as a de facto repeal of Montana’s medical marijuana law, passed by 62 percent of the state’s voters in 2000.

The Montana Justice Department will ask the state’s high court to overturn portions of Helena District Judge James Reynolds’ decision from June 30, which suspended enforcement of several provisions of the tough new law passed the the Republican-dominated 2011 Legislature to crack down on the state’s growing medical marijuana industry, reports Mike Dennison at the Billings Gazette.

Conservatives in the Legislature claimed the law as needed due to the growing number of medical marijuana patients and businesses in Montana during the past two years. The number of patients in Montana ballooned from a few thousand to more than 30,000 earlier this year.
The new law made it illegal for suppliers of marijuana to charge patients for the product, limited each provider to three patients, and made it much more difficult for patients to get a doctor’s authorization to use cannabis medicinally.
The Montana Cannabis Industry Association is the lead plaintiff in a lawsuit filed this spring challenging the law’s constitutionality before it had taken effect.
district judge james reynolds (flip).jpg
Photo: Eliza Wiley/Helena Independent Record
District Court Judge Jim Reynolds on June 30 blocked implementation of key parts of a new restrictive medical marijuana law passed by the conservative Republican-controlled Legislature.
​ Judge Reynolds blocked the ban on charging for marijuana and the limit on patients per provider, saying the Legislature had made it too difficult for people “to obtain this legally authorized product” and had interfered with Montanans’ “fundamental right of seeking their health in a lawful manner.”
The state is “concerned” about the implications of Judge Reynolds’s ruling that seemed to say the Montana Constitution “protects the right to sell marijuana for a profit,” said Jim Molloy, the assistant attorney general leading the defense of the tough new law.
“We believe it’s necessary to have the Supreme Court determine the proper constitutional standards to be applied before the case moves forward to a new trial,” Molloy said on Tuesday.
Judge Reynolds’s ruling in June did not throw out the entire law. It only blocked certain provisions from taking effect until he could hold a trial on the law’s constitutionality.
Any such trial will now be delayed until the Montana Supreme Court rules on the appeal — which probably won’t happen until next year.
Meanwhile, Reynolds’s ruling that blocks portions of the law remains in effect while the Supreme Court considers the appeals.
Tuesday’s appeal notice by the state did not specify what parts of the Reynolds ruling the state will challenge, or on what grounds. The state’s first written arguments in the appeal likely won’t be filed until October.
A Bozeman-based attorney representing the Montana Cannabis Industry Association said on Tuesday that he’ll ask the state Supreme Court to overturn portions of Judge Reynolds’s ruling that upheld portions of the law that the industry and patients say are unconstitutional.
“In general, we (were) pretty pleased with (Reynolds’s) ruling, but as long as the state is going to appeal, we might as well tee up these other issues,” said attorney Jim Goetz.
The other issues include the law’s blanket ban on medical marijuana for anyone on probation, and tighter definitions of a physician’s “standard of care” when authorizing patients for medical marijuana, according to Goetz.
“We have a situation with the Legislature saying, on the one hand, you can have access to medical marijuana for qualifying patients, but on the other hand, they provide no reasonable access to it, with the severe restrictions on sale,” Goetz said.
“That’s nonsense, and that’s what Judge Reynolds found unconstitutional, and I think the Supreme Court will, too,” Goetz said.
Since the law took effect on July 1, the number of Montanans with medical marijuana authorizations has dropped from about 30,000 on June 30 to 27,335 on July 31.
The medical marijuana industry and supporters have also mounted a petition drive to suspend the new law and put it to a public vote in November 2012. They have until September 30 to gather more than 24,000 signatures needed to place the measure on the ballot.
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